Monday, July 01, 2013

The (Ir)Relevance of Novelty as a Constitutional Criterion

By Mike Dorf

In my new column on Verdict, I identify a possible trend in recent Supreme Court cases, including those authored and joined by conservatives as well as those authored and joined by liberals: a tendency to be especially skeptical of laws that take a form that is either unprecedented or rarely used before.  I give three examples: 1) The claim by the five conservative Justices in the Affordable Care Act case last year that the individual mandate was unprecedented; 2) the claim by the same five Justices last week in the Shelby County case that the strictures of Section 5 of the Voting Rights Act were unprecedented; and 3) the claim by the liberals plus Justice Kennedy in the DOMA case that Congress had departed from a longstanding tradition of accepting state definitions of marriage.  In each instance, the claim of novelty was at least part of the basis for viewing the law's constitutionality skeptically.

As I say in the column, I'm not necessarily disagreeing with the bottom line in any particular case.  My point is simply that novelty ought not count as a reason for a finding of unconstitutionality.

Here I want to raise and then respond to a potential criticism of my analysis in the column.  The criticism is this: In constitutional law, tradition often does count as a relevant criterion of constitutionality.  For example, in Marsh v. Chambers, the longstanding tradition (dating back to the founding) of legislative prayer counts as the reason why the Court sustains contemporary legislative prayer, even though it would otherwise appear to violate the Establishment Clause.  Conversely, in other cases, the Court asks whether a putative right is "deeply rooted in this Nation's history and tradition", and if so, that counts as a strong reason for a finding that the right should be recognized as fundamental.  So, one might ask, isn't novelty simply the flipside of tradition?

I would offer two responses.  First, I think that the Court's citations of history and tradition are themselves often bogus.  Let's begin with Marsh.  Although the Court will likely reaffirm the holding of Marsh next Term when it decides Town of Greece v. Galloway, the case has been the subject of withering academic criticism.  Yes, the fact that early Congresses began their legislative sessions with prayers counts as pretty good evidence that the framers and ratifiers of the First Amendment thought it permitted legislative prayer, but then, the Sedition Act counts as pretty good evidence that the framers and ratifiers of the First Amendment thought it permitted sedition prosecutions--and yet the Sedition Act is now generally regarded as the paradigm violation of the First Amendment.  Offered as evidence of the original understanding, history and tradition are only entitled to as much weight as other sorts of evidence of original expected applications, and these days, even originalists do not typically defend reliance on original expected applications.

Likewise, the Court routinely ignores the question of whether a right is "deeply rooted in this Nation's history and tradition," as Justice Scalia accused the Court of doing in the Windsor case last week, as well as in Lawrence v. Texas.  And when the Court does invoke the supposed deeply-rootedness of a right as reason for recognizing that right--as it did with respect to possession of firearms in finding that the Second Amendment was incorporated against the states in McDonald v. City of Chicago--it is pretty obvious that the real rationale is normative.  In McDonald, for example, the five most conservative Justices found a right to possess firearms, whereas the four most liberal Justices would have found no such right.

Second, whatever the Court's practice is with respect to tradition, novelty is not exactly the flipside of tradition.  Let me illustrate with an analogy.  Suppose Jack is suspected of murder because a video surveillance recording shows someone who appears to be Jack walking up to his victim and killing him.  But now suppose that Jack has an identical twin brother Joe who lives in the same town as Jack and has a history of violence.  Under these circumstances, the fact that Jack has an identical twin brother tends to show that Jack is not guilty of murder.  However, the "flipside" hardly follows as a general proposition: Not having an identical twin does not make one likely to be a murderer.

Likewise with tradition.  The reason we might think that a congressional history of legislating in a certain way tends to show that the form or substance of that legislation is valid is partly a matter of original understanding and partly a matter of what James Madison (in Federalist No. 37) called "liquidation"--the process by which legal terms that are unclear at their drafting become fleshed out through "a series of particular discussions and adjudications."  The use by Congress of some particular form of legislation may reflect legislative "discussions" that, under even the mildes form of popular constitutionalism, become relevant to the settled meaning of a constitutional provision.  Indeed, if we indulge the presumption that Congress takes seriously its obligation to consider constitutionality as well as policy matters, then whenever Congress legislates, the resulting product reflects its judgment that the law is constitutional.

But the converse does not hold.  A long history of declining to legislate in some particular manner--such as declining to impose mandates under the Commerce Clause or declining to adopt a uniform federal definition of marriage for federal purposes--might reflect a congressional judgment that the opposite path would be unconstitutional, but it also might simply reflect the fact that prior circumstances did not call for such measures.

To be fair, in none of the cases I have discussed here does the Court say that novelty is per se unconstitutional.  Instead, the Court treats novelty as grounds for suspicion.  But even that much weight attached to novelty strikes me as too much.  Consider an example I proposed in a blog post after the oral argument in Windsor, based on a question posed by CJ Roberts: Would the Defense of Same-Sex Marriage Act (DOSSMA)--a hypothetical law that gives same-sex couples more rights under federal law than most of them enjoy under state law--be unconstitutional?  In the earlier post, I used the example to raise doubts about the freestanding federalism argument against DOMA, and in the end, no Justice endorsed the freestanding federalism argument.  But the DOSSMA example also shows what is wrong with treating novelty as grounds for suspicion.  It is novel in exactly the same way that DOMA is novel: It overrides state definitions of marriage.  But in context, that does not give rise to even a hint that Congress has acted with impermissible animus.

The Court's holding in Windsor--that DOMA Section 3 is invalid because it is rooted in impermissible anti-gay animus--need not rest at all on the fact that Congress hitherto had not enacted a federal definition of marriage.  And although I'm not persuaded by the Commerce Clause portion of the five conservatives' opinions in the ACA case or the majority in Shelby County, I don't think the arguments for the positions expoused therein would be any weaker if they omitted their reliance on novelty. 


egarber said...

How about judicial novelty? It’s clear that laws passed by political bodies – and the power leveraged -- will often evolve as new challenges arise. But as a matter of judicial interpretation of precedent, do you think we’re invoking concerns (stare decisis) that make “novelty” much more relevant?

In Bush v Gore, for example, such creative use of the 14th Amendment and Article II by the Court struck me as a major stretch. How much should the novelty of that thinking matter, when we assess the “correctness” of a ruling?

Joe said...

The 8A suggests a specific concern for tradition ("usual") and substantive due process (and due process generally?) has involved some concern for traditionally honored rights.

I think the argument here overall a good one though think suddenly changing course can be a red flag with other things in the equal protection context. If the feds provided a better rationale for the change, fine, but special treatment of this sort often is a sign of invalid behavior.

pvineman1 said...

Prof. Dorf, you assert "a possible trend in recent Supreme Court cases," that "the Court treats novelty as grounds for suspicion."

One case from this term that contradicts your theory/observation is Maryland v. King -- the arrestee DNA Fourth Amendment case.

Prior to King, the Court had never approved a warrantless, suspicionless, dragnet-type, search of a person, their property, or their home for the purpose of investigating crime and attempting to gather evidence.

As Justice Scalia points out in his dissent, the procedure approved by the King majority was not only novel, but was unprecedented.

The majority was not dissuaded by the sui generis nature of their holding. Rather, they were more interested in balancing the level of intrusiveness (on the arrestee) against the government's justification for any such intrusion, i.e., the protection of others.

Can't the same be said for the cases you cite: Novelty was not the constitutional criterion, but balancing (of interests) was.

In the ACA case, the intrusion on a person's freedom (to voluntarily contract, or not contract, with the person/entity of their own choosing) was significant. And this level of intrusiveness was balanced against the government's interest in ensuring that the nation's health care delivery system does not collapse. Justice Roberts believed that the later outweighed the former and, thus, justified the "tax" imposed upon all Americans who choose not to purchase insurance.

In Windsor, the Court once again balanced the intrusion (on the states' rights to decide who can "marry" under state law & on the rights of SSC to be treated on equal footing with OSC) against the government's purported justification(s) for those significant intrusions (on states' rights and individual liberty). Justice Kennedy, writing for the majority, concluded that the intrusion(s) was(were) great and the justification nonexistent, i.e., the only ground for these intrusions was animus against gays.

Finally, in Shelby County, the majority balanced the intrusion (on the rights of the impacted southern states, and those states alone) against the government's statistic-based justification (to ensure fair elections based upon the principle of one-person-one-vote). The majority gave credence to the government's good faith purpose, but found that the statistics supporting that admirable goal were simply outdated and unreliable and, thus, could not justify the intrusions on the affected states.

My hypothesis is that a form of this type of reasoanbleness balancing is at the forefront of the Court's recent jurisprudence. And the novelty of the government's conduct is but one factor in that calculus.

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