• 31 December 2010

Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights

Wayne A. Logan Florida State University School of Law

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Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality.  As John Jay observed in The Federalist Papers, “we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection.”1 The sense was first given structural effect with the Constitution’s Supremacy Clause and later the Fourteenth Amendment, which served as a fulcrum to extend the U.S. Bill of Rights to the nation as a whole.  As a consequence, federal constitutional rights today serve as a “floor” for the nation’s political subunits, which, although permitted to provide their residents more in the way of rights, can provide nothing less.2

Over the years, the perceived perils of constitutional disuniformity, especially as a result of nonfederal influence, have been the subject of frequent denunciation.  Echoing Madison’s view that the “mutability” of state laws represented a “serious evil,”3 the Supreme Court in particular has lamented the specter of “arbitrarily variable protection.”4> Permitting federal rights to depend on state laws would allow protections “to turn upon … trivialities,”5 resulting in rights “‘vary[ing] from place to place and from time to time.’”6 The upshot, as Justice Scalia recently asserted, would be to “change the uniform ‘law of the land’ into a crazy quilt.”7

In reality, however, a crazy quilt does indeed exist.  Although federal constitutional law nominally serves as the nation’s connecting sinew, its application, as this Article makes clear, hinges on state and local legal norms, which are highly variable and create a functionally irregular rights regime.  Police authority to search and seize individuals, regulated by the Fourth Amendment, for instance, hinges on state and local decisions to criminalize particular acts or omissions, which can be variously defined.  Consequently, one’s Fourth Amendment freedom from search and seizure in California differs from that enjoyed in Florida, Texas, Maine, and the Dakotas.  It also differs within states themselves, as a result of the significant criminal lawmaking authority of local governments.

The variable constitutional landscape stems from two central features of the nation’s governing structure.  The first is federalism, the decentralizing effect of which preserves the authority of national political subunits to enact and enforce laws, especially relative to police power.8 As the Court stated in Danforth v. Minnesota, “{n}onuniformity is … an unavoidable reality in a federalist system.”9 There exists a “fundamental interest” in preserving subnational authority, the 7-2 majority insisted, that cannot be constrained by “any general, undefined federal interest in uniformity.”10

The second catalyst is incorporation doctrine, which despite seeking the nationalization of the Bill of Rights in lieu of the historically variable state-based rights regime, has created a variable rights regime of its own.  Today, of course, federal constitutional rights apply to the nation as a whole; however, the actual application of such rights turns on triggering conditions contained in state and local criminal laws.  State and local laws serve as a legal endoskeleton of the federal rights regime, infusing the nation’s constitutional order with significant variability.

State and local laws have perhaps their most direct and widespread influence on federal constitutional criminal procedure rights, a domain where life and liberty are most seriously imperiled.11 A survey of how the laws affect several core criminal procedure protections in particular—such as the Fourth Amendment protection against unreasonable searches and seizures and Sixth Amendment rights to appointed counsel, freedom from police questioning, and trial by jury—reveals that, although federalism and incorporation have long defined American governance from a structural perspective, their real world impact on the actual distribution of federal constitutional rights has gone unaddressed.  This Article remedies this oversight and highlights the critically important distributive consequences of the subnational normative variation that underlies the nation’s constitutional order.  State and local normative preferences, reflected in laws targeting various behaviors for criminalization, containing distinct definitions of crimes, and prescribing varied punishments for convictions, drive the real-world applicability of Fourth and Sixth Amendment rights.

In contemporary times, it is widely acknowledged that the state and federal governments significantly influence one another.  State preferences, for instance, are regularly considered by the federal judiciary in determining federal constitutional norms, such as whether there exists a right to engage in specific conduct under the Fourteenth Amendment.12 Federal courts also regularly lend constitutional credence to state preferences in assessing whether a particular application of the death penalty satisfies Eighth Amendment “evolving standards of decency.”13 Finally, federal constitutional outcomes can depend on discrete community norms, such as those of tribal reservations and military bases, and, relative to obscenity, local standards of decency.14

Such instances, however, differ in important ways from the phenomenon considered here.  Most fundamentally, contingent constitutionalism does not influence the substantive content of federal constitutional norms but rather whether the norms themselves are actually triggered.  It thus operates organically as a matter of course, in “Red” and “Blue” and small and large jurisdictions alike, directly affecting the scope of constitutional protections available to the nation’s denizens.  Moreover, rather than reflecting headcounts of aggregated preferences of subnational political units, contingent constitutionalism reflects—and instantiates—the actual individualized normative preferences of such units.  As a result, state and local preferences, rather than creating constitutional norms from the top down, drive the application of federally recognized norms from the bottom up.

This institutional design outcome has both benefits and detriments.  Perhaps the most significant benefit is that state and local governments are assured a voice in the rights regime that the federal government superimposes upon them.  Their normative preferences, embodied in their criminal laws, are directly reflected in the federal rights that their inhabitants are accorded.  This symmetry, however, gives rise to a variety of difficulties.  Most critically, tying federal rights to the majoritarian democratic preferences of jurisdictions in which individuals are physically located renders such rights captive to state and local political prerogatives.  Moreover, the very process of making federal rights contingent on state and local political borders, not national citizen status, negatively affects an array of other important values, including the nation’s shared sense of constitutional commitment and the premise of rights equality associated with it.

Recognition of contingent constitutionalism has several important consequences for current and traditional understandings of the nation’s constitutional order.  Chief among these is that rights nationalism is a myth, one that ironically itself has been subverted by the very process of nationalization intended to temper the variability of subnational influence.  While repudiation of the myth risks loss of a measure of national collective identity, gain potentially lies in the promotion of a greater sensitivity to the nexus between state and local substantive criminal laws and federal rights, holding promise for an enhanced (and long overdue) deliberateness in criminal lawmaking policy.  Finally, recognition of rights contingency underscores the enduring importance of physical space to the application of legal norms.  Despite sustained efforts at nationalization, federal rights in fact remain highly sensitized to geography, anchored in state and local substantive law.

Ultimately, recognition of contingency affords an opportunity to reexamine the legacy of incorporation doctrine.  For years, the process of incorporation inspired sharp judicial disagreement, with a prime concern centering on whether state law norms should figure in the definition of federal constitutional rights.  Such influence ultimately came to pass with the preferences of some (but typically not all) states being reflected in the rights identified by the Court and imposed as a constitutional floor on the nation as a whole.

Today, subnational constitutional influence persists, reflected not in the substantive content of constitutional rights, as in the formative era of incorporation, but rather in the availability of such rights, on the basis of the substantive criminal law of such governments.  As a consequence, the nation’s ostensibly uniform federal rights regime remains a crazy quilt of rights, marked by variability akin to that of pre-incorporation times.

  1. The Federalist No. 2, at 38-39 (John Jay) (Clinton Rossiter ed., 1961).
  2. See, e.g., Pointer v. Texas, 380 U.S. 400, 413 (1965) (Goldberg, J., concurring) (noting that states lack the “power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights”).
  3. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 1 The Founders’ Constitution 644, 646 (Phillip B. Kurland & Ralph Lerner eds., 1987).
  4. Devenpeck v. Alford, 543 U.S. 146, 154 (2004).
  5. Whren v. United States, 517 U.S. 806, 815 (1996).
  6. Virginia v. Moore, 128 S. Ct. 1598, 1607 (2008) (quoting Whren, 517 U.S. at 815).
  7. Kansas v. Marsh, 548 U.S. 163, 185 (2006) (Scalia, J., concurring) (quoting U.S. Const. art. VI, cl. 2).
  8. See, e.g., United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (“Under our federal system, the ‘States possess primary authority for defining and enforcing the criminal law.’” (citation omitted)).
  9. 128 S. Ct. 1029, 1041 (2008).
  10. Id.
  11. Subnational influence of course evidences itself in other federal rights areas as well, perhaps most notably in Fourteenth Amendment due process litigation, where the question of whether a putative entitlement is constitutionally protectable can turn on state or local law. See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 756-57 (2005).
  12. See, e.g., Lawrence v. Texas, 539 U.S. 558, 562, 570-71 (2003) (invalidating a Texas law criminalizing adult consensual sodomy).
  13. See, e.g., Atkins v. Virginia, 536 U.S. 304, 313-16 (2002) (deferring to state government aversion for execution of mentally retarded capital defendants).
  14. See Mark D. Rosen, Our Nonuniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community, 77 Tex. L. Rev. 1129 (1999).

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