St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment

Saul Cornell[*]

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More than two hundred years after the publication of his influential edition of Blackstone’s Commentaries, St. George Tucker, the distinguished Jeffersonian jurist, is at the center of controversy.  Gun-rights advocates claim Tucker as their spiritual forebear, but opponents of this view argue that Tucker’s interpretation of the Second Amendment[1] can not be pressed into service in the modern gun debate without doing great violence to his thinking.  The stakes in this intellectual debate have been raised in the wake of the Supreme Court’s historic decision in District of Columbia v. Heller.[2]  In that decision, two very different interpretations of Tucker’s views of the Second Amendment were set out.  Justice Scalia adopted the gun-rights view of Tucker and Justice Stevens took the opposing view. One of the central points of contention in this modern debate over Tucker arises from the learned judge’s earliest discussion of the Second Amendment in his unpublished law lectures.[3]

The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums

Paul E. McGreal[*]

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Imagine that you are mayor of a small town that has a picturesque public park, removed from the town center, where your residents come to escape the hustle and bustle of everyday life.  To make the space inviting, you have built a gazebo, a picnic area, and a playground for the local children.  You have also allowed a local veterans group to erect a permanent monument honoring those from the town who died in war.  Then, a local group asks permission to hold a political rally in the park.  You deny the request, explaining that the park is for peaceful recreation and not for noisy demonstrations.

By denying the political rally, you have violated the First Amendment.  The First Amendment severely limits the government’s power to place content-based restrictions on speech in traditional public forums, which the Court defines as public parks, streets, and other “places which by long tradition or by government fiat have been devoted to assembly and debate.”[1] Further, government may not ban speech activities in such forums.  Thus, your town must allow at least some assembly and debate in the park.

Next, a local religious group asks permission to place a permanent monument in the park.  They explain that the monument will display the central tenets of their faith, which they consider their equivalent of the Ten Commandments.  You deny this request and explain that the only permanent structures allowed are those that serve the park’s recreational purpose.  The religious group points out, however, that you have already allowed placement of a veterans monument.  You respond that a war memorial is a more appropriate message for a public park than a religious monument.  The religious group catches your slip here.  They explain that the park is a traditional public forum, and that you are excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial).  As a result, they claim, your decision to exclude the religious monument violates the First Amendment.  Incredulous, you object that a permanent monument must be different than more temporary speech, such as a rally or movable display.  After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones.  The religious group persists.  Are they right?

This November, the Supreme Court will hear arguments on this question in City of Pleasant Grove v. Summum.[2]   The precise issue is whether placement of a permanent monument is part of the public’s right to use a traditional public forum.  This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results in applying that doctrine.  On the one hand, the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum.  This ruling bars the government from regulating private monuments based on their content, effectively leaving a choice between allowing all or no such monuments.  On the other hand, other courts have held that the public’s right to use a traditional public forum does not include placement of permanent structures.[3]   These courts typically announce the rule as a matter of judicial fiat, offering little, if any, reasoning.[4]   Their logic is internally inconsistent and, if applied generally, would lead to unacceptable consequences.

Both of the lower court approaches ultimately prove unsatisfactory because the decisions lack a principled basis to distinguish temporary speech from permanent monuments.  This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so.  The lower courts, then, have been trapped in the current doctrinal box.

Is Military Law Relevant to the "Evolving Standards of Decency" Embodied in the Eighth Amendment?

By Corey Rayburn Yung[*]

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On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution.[1]  The Court reached a contentious five-to-four decision with Justice Kennedy writing for the majority. Applying the “evolving standards of decency” approach to determine whether the punishment at issue was “cruel and unusual,” the Court examined the laws of the states and federal government.  In so doing, the Court wrote that, “Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.”[2]

Just three days after the opinion was issued, Colonel Dwight Sullivan noted on the CAAFlog blog that the Court’s statement concerning federal law did not tell the whole story.[3]  In fact, amendments made by Congress in 2006 to the Uniform Code of Military Justice (UCMJ) explicitly allow for the death penalty in child rape cases.[4]  Colonel Sullivan’s post about the omission in the Court’s opinion might have been relegated to the dustbin of Internet history had the leading Supreme Court reporter not taken notice.

On July 2, Linda Greenhouse wrote an article in the New York Times that expanded upon the observation expressed in Colonel Sullivan’s blog post.[5]  Greenhouse noted that it was not just Justice Kennedy’s majority opinion that had overlooked the UCMJ amendment.  There was no mention of the UCMJ in the party briefs, amicus curiae briefs, or Justice Alito’s dissenting opinion.

Greenhouse’s short column set off a firestorm of media criticism attacking the Court’s opinion in Kennedy.[6]  While the criticism initially erupted from traditionally conservative media outlets, calls for rehearing were soon made by those across the political spectrum[7] and throughout the legal blogosphere.[8]  Louisiana filed a petition for rehearing based largely upon the Court’s failure to address the UCMJ amendment.[9]  Although absent from the initial briefing in the case, the Solicitor General’s office also filed a motion in support of rehearing based upon the Court’s omission.[10]  While rehearing motions have very rarely been granted, on September 8 the Court took the unusual step of requesting further briefing on whether the case should be reargued or the original opinion should be amended.[11]  That move by the Court potentially indicates that it is seriously considering rehearing the Kennedy case.

While many of the critics and the Louisiana brief used the omission of the military code revision as a vehicle to attack the greater substance of the Court’s opinion, there emerged a legal issue that clearly required attention: was military law relevant to the Court’s reasoning in such cases?  Based upon an exhaustive review of prior Supreme Court cases and the role of the military in American society, the answer is clearly “no.”  Consequently, it would be a mistake for the Court to grant Louisiana’s motion to rehear the case.

Child Rape, Moral Outrage, and the Death Penalty

By Susan A. Bandes[*]

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Is raping a child as heinous an act as taking a life?  How should the comparative moral depravity of child rapists and murderers be measured?  By what metric can the irrevocable harm murder inflicts on its victims be weighed against the long-term anguish inflicted on child rape victims?  What is the judicial role in gauging the societal outrage and revulsion elicited by these two crimes, and in determining whether the death penalty is an appropriate response to those emotions?

In Kennedy v. Louisiana[1] the Supreme Court struggled with this daunting set of issues, which called for judgments that are inescapably moral and emotional.  The Court also faced contentious questions about the nature and longevity of the psychological injuries to child rape victims and to their families,[2] about whether a capital prosecution would ameliorate or exacerbate those harms,[3] and about whether the strong emotions jurors feel in child rape cases are likely to overwhelm their capacity to decide fairly.[4]  The Kennedy decision is a vivid illustration of the central point Douglas Berman and Stephanos Bibas make in Engaging Capital Emotions: that it is impossible to evaluate the legal issues raised by capital punishment without addressing the role of emotion.[5]

I’ve argued that once we acknowledge “the emotional wellsprings of the retributive calculus” we can have “a more clear-eyed debate about retribution’s proper role in our capital punishment system.”[6]  Berman and Bibas begin this debate.[7]  They argue that child rape should be a capital crime, drawing support from the widely shared moral outrage the crime evokes, and from the crime’s emotional toll on child rape victims and their families.  Although I reach the opposite conclusion on the merits, their essay models precisely the sort of conversation we ought to be having.

Part I of this Reply considers the role of emotion in capital jurisprudence.  Section A discusses the importance of confronting emotion’s role in capital punishment.  Section B explores the difficulties with using moral outrage as a metric.  Section C argues that the penal system should not merely reflect moral outrage, but channel and educate it.  Part II focuses on the role of emotion in deciding whether child rape should be a capital crime.  Section A considers the relevance of victim harm to the question facing the Kennedy court.  Section B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious impact of anger and empathy, the problem of generic prejudice, and the issue of race.

What Riegel Portends for FDA Preemption of State Law Products Liability Claims (Part II)

By Catherine M. Sharkey[*]

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[Editor's Note: This week, we are pleased to present Professor Sharkey's Essay on FDA preemption in light of Riegel v. Medtronic.  Part II appears today.]  

II.  Judicial Review

The Riegel majority had little to say about judicial review of agency actions or interpretations, given the primacy and determinacy of statutory text to the question at hand. But what little the Court did have to say may have resolved (at least in dicta) a simmering debate over the appropriate level of deference due to agency views on preemption:

In the case before us, the FDA has supported the position taken by our opinion with regard to the meaning of the statute. We have found it unnecessary to rely upon that agency view because we think the statute itself speaks clearly to the point at issue. If, however, we had found the statute ambiguous and had accorded the agency’s current position deference, the dissent is correct that—inasmuch as mere Skidmore deference would seemingly be at issue—the degree of deference might be reduced by the fact that the agency’s earlier position was different.[46]

Wrapped up in this quixotic counterfactual musing are two salient doctrinal points: first, that “mere Skidmore” deference—which is meted out according to the agency’s “power to persuade” the court, as opposed to unconditionally[47]—is the appropriate level of judicial deference; and second, that agency inconsistency is a salient factor, weighing against an agency’s new-found (and by hypothesis, turn-about) position. What is missing is a framework for the Court to undertake judicial review, probing the adequacy of the reasons given by the agency for taking a particular action, as well as for changing tack and taking a different course of action.

What Riegel Portends for FDA Preemption of State Law Products Liability Claims

By Catherine M. Sharkey[*]

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[Editor's Note: This week, we are pleased to present Professor Sharkey's Essay on FDA preemption in light of Riegel v. Medtronic.  Part I appears today.  Part II of this Essay will appear on Thursday.]  

Introduction: Preemption Cases in Search of a Framework

In Riegel v. Medtronic, Inc., the U.S. Supreme Court held that a federal statute governing regulation of medical devices expressly preempts, or displaces, state tort law claims when a device has received FDA premarket approval.[1]  A month after the Court issued this opinion, Justice Scalia inveighed against the news media coverage of Riegel (an opinion that he authored) at a meeting convened by the Food and Drug Law Institute:

Scalia said news organizations often fail to focus on the text of the laws the Court interprets . . . . The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case . . . . In some instances, said Scalia, the news media leave the impression that no ruling based on the text of a law “is even possible.”[2]

Scalia’s majority opinion can indeed be fairly characterized as a “narrow, textual interpretation” of the preemption clause of the congressionally enacted Medical Devices Amendments of 1976 (MDA) to the Federal Food Drug and Cosmetics Act (FDCA).[3]  Express preemption cases, at least in theory, can begin and end with statutory text.

But it is rare to find a products liability preemption case where, in Justice Scalia’s words, “the statute itself speaks clearly to the point at issue.”[4]  Far more typically, disagreements erupt among the Justices over whether statutory language is in fact clear.  Often congressional legislation touches on some aspects of federal regulation of consumer products, motor vehicles, or recreational boats (to name a few examples), without clearly specifying the interrelationship with state common law tort claims.  In such legislation, Congress often creates confusion by including both a preemption clause, which mandates displacement of competing or conflicting state law standards, and a savings clause, which purports not to upend existing state common law liability.[5]

Where the language of the preemption and savings clauses points in opposite directions, or where Congress has been cryptic or silent on the matter, Justice Scalia’s ode to text will ring hollow.  Courts will have to decide on the basis of implied conflict preemption (as opposed to express preemption), looking at the entire statutory and regulatory framework to determine whether state laws either “make it ‘impossible’ for private parties to comply with both state and federal law,”[6] or, more broadly, whether state laws frustrate or “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[7]  Justice Ginsburg’s lone dissent in Riegel may well portend the true battleground in implied conflict preemption challenges to come: “In the absence of legislative precision . . . courts may face the task of determining the substance and scope of Congress’ displacement of state law.”[8] Where statutory text is indeterminate, where are courts to look?

Several options present themselves.  First, courts may resort to the “presumption against preemption” statutory canon to raise the bar against interpretations favoring preemption absent clear language by Congress.[9]  While this approach retains some appeal for judges and academic commentators,[10] it has receded of late in the imagination of the Supreme Court Justices.  In fact, this canon was not even mentioned by the majority in Riegel.[11]

Heller's Future in the Lower Courts

By Glenn H. Reynolds[*] & Brannon P. Denning[**]

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The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,[1] and the buzz has been considerable.  Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point.  What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.

The repudiation of this extensive body of case law[2]  suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws.  Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts.

If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity.  Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions.

In the pages that follow, we take a look at these aspects of Heller.  The triumph of the Standard Model of the Second Amendment is examined in Part I.  Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic.  Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller.

The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda

By Mitchell H. Rubinstein[*]

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Professors Gregory and Secunda and I are all interested to see what impact Sprint/United Management Company v. Mendelsohn[1] will have on the admissibility of “me too” evidence in employment discrimination litigation, and in particular, comparative evidence from another employee of the defendant-employer who did not share the plaintiff’s supervisor, but was affected by a similar type of adverse employment action—such as the reduction in force (and accompanying layoffs) at issue in Sprint.  Professor Gregory and I predict that Sprint will result in much more litigation over this issue of admissibility,[2] while Professor Secunda remains skeptical that Sprint will have much of an impact at all.[3]

Professor Gregory’s essay highlights the central problem in employment discrimination jurisprudence today—proving or disproving claims of harassment with only circumstantial evidence. Discussing sexual harassment cases, Professor Gregory states that many cases boil down to nothing more than “‘he said, she said’ debate[s].”[4]  He goes on to compare “he said, she said” with “me too” cases and postulates that while the admission of “me too” evidence will provide more support for claims of harassment, one result of Sprint may be that litigants will attempt to present an endless line of “me too” witnesses.[5]  Professor Gregory does not opine on what Sprint means with regard to the actual admissibility of “me too” evidence; instead he simply concludes that this will be left “to the pragmatic wisdom of trial court judges.”[6]

Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of "Me Too" Evidence of Discrimination

By David L. Gregory[*]

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Introduction

In the essay that started this discussion, Professor Mitchell Rubinstein provides a clear analysis of the Supreme Court’s decision in Sprint/United Management Company v. Mendelsohn[1] and points out the lack of consistency in post-Sprint decisions.[2]  Professor Rubinstein correctly concludes that, on balance, plaintiff-employees in employment discrimination cases ultimately stand to benefit more than defendant-employers from the Sprint decision.[3]  And, equally important, he predicts “that Sprint is going to result in much more ‘me too’ evidence being admitted, [which may result in] more expansive plaintiff discovery requests seeking out comparative employees and where such evidence is found, lengthier trials.”[4]

Sprint is a substantially practical decision.  Accordingly, Professor Rubinstein does not attempt to impose an abstract theoretical framework onto the Sprint decision.[5]  Indeed, “me too” cases will continue to be decided on a case-by-case basis, without reference to a larger theoretical picture.  An analogy to the proverbial “forest and the trees” is tempting, with the trees being various employment discrimination decisions and the forest the jurisprudence underlying employment discrimination cases.

Yet, perhaps it is more helpful to think instead of an already dense, and now dramatically proliferating underbrush composed of employment discrimination cases turning on the admission of “me too” evidence and testimony.[6]  Whether the courts clear out, set fire to, or fertilize this underbrush, is the open question with which Professor Rubinstein concludes his essay: “because the Court did not definitively resolve the issue, there likely will be additional litigation until the Supreme Court resolves it once and for all.”[7]  Hence, litigators and particular parties seem destined, at least for now, to continue trudging through the underbrush of “me too” evidence and employment discrimination law.  But, if we ever make it through the post-Sprint underbrush, where, exactly, will we be?

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota

By Ilya Somin[*]

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Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the Federal Constitution.  More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights.  Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the Federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota.[1]  In a 7-2 decision joined by an unusual coalition of liberal and conservative justices, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions.  I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the Federal Constitution.  The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

Part I briefly describes the facts and background to Danforth.  In Part II, I provide a doctrinal justification for the Supreme Court’s decision.  It makes sense to allow state courts to provide more generous remedies than those mandated by the federal courts in cases where restrictions on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy grounds.  State courts can legitimately conclude that these policy grounds are absent or outweighed by other considerations within their state systems, even if they are compelling justifications for restricting the scope of remedies available in federal courts.  State courts are in a better position to weigh the relevant tradeoffs in a state legal system than federal courts are.

Part III explains the potential policy advantages of allowing interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to provide for diverse citizen preferences and local conditions across different parts of the country.  The optimal remedy for a constitutional rights violation in New York may well be different from the optimal remedy for one that occurs in Mississippi.