Bring on the Heavy Constitutional Artillery: A Brief Response to Professor Mitchell’s Reconsidering Murdock

Richard A. Epstein - New York University Law School

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In his recent article in The University of Chicago Law Review, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance,1 Professor Jonathan Mitchell has challenged one of the bedrock principles of federal jurisdiction. His thesis is that, in limited cases, the United States Supreme Court should take it upon itself to review certain matters of state law in order to avoid resolving difficult constitutional questions.  In arguing his case, he takes on the venerable Supreme Court decision of Murdock v City of Memphis,2 which held precisely the opposite.

Mitchell’s impetus for this novel departure from traditional conceptions of federal jurisdiction is to allow the Supreme Court yet one more technique to avoid deciding contentious constitutional questions before they are institutionally ripe for decision.  According to Mitchell, on rare occasions at least, the Supreme Court should be able to decide for itself a question of state law so that it need not be pinioned in the unhappy choice of either allowing a bad decision to remain in effect or needlessly intervening on broad constitutional grounds.

In spite of his many ingenious arguments on this point, I think that Murdock is one instance where the stable practice of the last 135 years should continue, both as a matter of constitutional law on the one hand, and of political prudence on the other.  Let me examine both sides of this coin quickly.

I. The Constitutional Issues

One way to think of Murdock is to view it as the constitutional reciprocal of Martin v Hunter’s Lessee.3 Martin read § 25 of the Judiciary Act of 17894 to allow the Supreme Court to review those decisions of state courts that rejected a federal constitutional challenge to a state law.5 Martin itself involved some interpretive high stepping, because there is no firm textual authorization for this kind of review in Article III, § 2, which clearly allows the Supreme Court to wrench these decisions out of the state system.6 Yet whatever the difficulties with the original constitutional decision, the received wisdom holds that Justice Joseph Story’s aggressive reading on this point was critical to the preservation of the union, which might not survive if each state court could be a final arbiter of the constitutionality of its own laws under the federal Constitution.  Thus, in a famous aphorism, Oliver Wendell Holmes contrasted Martin with Marbury v Madison7: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”8

It takes little imagination to see that the centralization of federal authority through Martin, Marbury, and other Marshall Court decisions was not greeted with rapturous praise by state court judges.  Indeed, Mitchell lays out in exquisite detail the long simmering conflict between the Supreme Court of Virginia and the United States Supreme Court over the Fairfax devise that sparked the entire controversy.9 The revisions of the original § 25 in the Judiciary Act of 186710 were a big deal because they reflected a critical change in the balance of power wrought by the victors of the then-recent Civil War.  These changes were introduced to allow the federal government to assert greater power over the states than ever before.  The new statute removed a critical proviso of the original § 25 that precluded the Supreme Court from hearing cases that did not call into question any constitutional provision of the United States.11 And, for the first time, the statute allowed for the execution, upon a final judgment, of cases that had not been previously remanded to the states for further consideration,12 in anticipation of resistance from the newly returned states to the Union.

Murdock did not on its facts trigger any high emotions.  The case concerned the dry question whether land that had once been held by the United States as a naval base belonged to the City of Memphis, to whom the United States had conveyed it, or whether it reverted to the heirs of the original grantor.  But the institutional significance of the case lay in whether the United States could encroach on the domain of the states in determining the scope of state law when there was no federal interest involved.  The decision held that the Constitution did not give the federal government that power,13 and thus ushered in the modern era in which the federal review of state laws is limited to those cases in which some federal interest is involved.

To my mind, this outcome makes perfectly good sense for two reasons.  First, the rule of strict separation is an important cog in making sure that the jurisdictions of both the federal and the state courts are confined to their respective spheres in dealing with delicate matters of constitutional interpretation.14 After all, if this power could be granted to the United States Supreme Court by statute, why not grant the same power to lower courts as incidental to their general jurisdiction over federal matters?  Second, Murdock has troublesome implications both for the scope of that intervention in the particular case and for the future development of state law.  Does the decision of the federal court become part of the binding law of the case, even if this particular dispute is referred back to state court at some later time?  And more importantly, does the decision have any status as precedent for subsequent decisions of state court judges that are, or may be, covered by the earlier decision?

Clearly, state courts would have good reason to resist Mitchell’s proposed federal imposition.  It is very hard to claim that the state court, in future state law proceedings, could not reject the federal interpretation of a state law on the same issue.  Yet suppose that the case is then removed to federal court.  Does the federal precedent once again apply, in ways that expand the possibilities of strategic behavior over the removal question, which already raises enough difficulties of its own?  All in all, the clean separation seems better calculated to advance the appropriate federal–state balance. Murdock cut off a new development before it could sprout wings, and thus did a real service for us all.

II. Institutional Complications

As a matter of general federalism, there are high costs to pay for departing from Murdock.  The question is whether we can find some strong institutional reason to allow the federal government to inject itself into this potential maelstrom.  I confess that, in looking over the cases to which Mitchell refers, I do not see the reason for equivocating on some squishy middle ground.

In large measure, this judgment rests on my own constitutional orientation.  I am no fan of the current law of standing, which purports to rule out-of-court citizen and taxpayer standing cases as nonjusticiable under Article III, § 2.  It is one of the great mysteries of modern constitutional interpretation how that standing limitation can be found in the broad command of Article III:  “The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising” in various enumerated disputes.15 There is no limitation, explicit or implicit, in the word “extend.”  The reference to cases in equity confers on the federal courts the power to use all equitable remedies, many of which are intended to overcome collective action problems in controlling the illegal actions of corporations and municipal governments.  These remedies are of equal value when United States citizens and taxpayers seek to enjoin federal officials whose actions fall outside of their constitutional powers.16

The whole point of Article III, § 2 is to allow immediate judicial challenges to new laws, regulations, and executive actions before federal officials entrench their actions and rules.  The other system has worked well with state and municipal governments, and I can think of no institutional reason why this artificial barrier to the assertion of federal power does anything other than advance the sensible application of Marbury. I have much the same attitude toward various doctrines of ripeness and other similar political questions, which should be reserved for those cases—much of foreign affairs, for example—where the overall power seems to be divided in uncertain terms between the Congress and the President.

At this point, it is hard to see why anyone would want to champion some general doctrine of avoidance, which lets constitutional disputes simmer, when some degree of legal certainty should provide benefits to overall actors.  Nothing about the particular cases to which Mitchell refers leads me to reevaluate the situation.  Let me just briefly comment on some of the illustrations that he discusses in his article.

Long-Arm Statutes World-Wide Volkswagen Corp v Woodson17 involved the question whether an Oklahoma state court could use the Oklahoma long-arm statute to gain jurisdiction over an automobile distributor and retailer that sold the injured party the car in New York state.  The Supreme Court reversed the Oklahoma decision on grounds that personal jurisdiction did not extend that far.18 It is not all that clear what the ideal jurisdiction over product liability cases should be when the product seller, which for these purposes includes retailers and distributors as well as manufacturers, is in a state far removed from the place of the accident.  Questions of this sort arise all the time with products that easily move across state boundaries. Clearly, there is more than a modicum of state self-interest for Oklahoma to allow this case to go forward in its own courts.

As a matter of principle, there is something to be said for forcing injured parties to sue retailers and distributors in their own home court, given that automobiles can be driven all over the world.  Indeed, in this case, the joinder of World-Wide was not used just to gain jurisdiction over the company in Oklahoma. Rather, it was joined as a codefendant with the manufacturer and importer of the vehicle, over whom there was undeniable jurisdiction in Oklahoma.  The joinder maneuver was an effort to keep these defendants from removing their case to federal court given the want of complete diversity.  I see no reason why the Supreme Court should feel constrained to offer some interpretation of the Oklahoma long-arm statute to protect the strong federal interest in keeping the federal courts open to removal jurisdiction.  Better to resolve this question once and for all, so that all states know that they will be unable to resort to this maneuver regardless of the precise wording of their long-arm statutes.

Civil Rights Cases Mitchell also points to various state court decisions that operated as a barrier against the enforcement of federal civil rights.19 On these cases, the last thing that makes sense from the point of view of comity is to wade into state law turf when local sensitivities are at fever pitch.  It is far better for the Supreme Court to affirm a clear statement of principle that binds not only in the one case, but sets a clear example that could be used against other actions by the same state court or by similar actions in other state courts.  To be sure, as Mitchell notes in citing NAACP v Patterson,20 there are grounds for federal review of state court rules that are interpreted in a profoundly perverse fashion, with the sole intention being to deny litigants a clear shot at their federal claims.21

Yet that form of intervention only applies to those cases in which the state procedural issue becomes an impediment toward federal right, at which point the principle of Murdock does not apply at all.  As the Supreme Court concluded in Patterson, “[n]ovelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.”22 Murdock was not cited. And the intervention of the United Supreme Court on state court matters was carefully hedged to make clear that the Court did not seek to remake any rule of state law.  Rather, the Court only imposed a consistency requirement on the state court so that it could not manipulate its own precedent to block the full consideration of a key federal question.  Finding a strong associational right that allowed the NAACP to keep its membership lists from the prying eyes of the Alabama Attorney General is exactly the kind of case in which the invocation of any constitutional avoidance canon creates serious dangers.

Antidiscrimination Laws. In Dale v Boy Scouts of America,23 the New Jersey Supreme Court upheld New Jersey’s Law Against Discrimination24 against a constitutional challenge by the Boy Scouts, who insisted that this law infringed on the Boy Scouts’ First Amendment rights of freedom of association.25 That decision was overturned in the United States Supreme Court, which divided 5–4 on the question.26 I have been a consistent, strong defender of the Supreme Court’s Dale decision,27 which—with shades of Patterson—places a strong barrier against state intervention in the affairs of private groups.  These groups bear no similarity at all to ordinary common carriers, where the sole duty of passengers is to pay their fare and obey the ordinary rules of good conduct.  The Boy Scouts have far more expressive reasons for their association, which make any common carrier analogy utterly inappropriate.  Indeed, in retrospect I wish that Dale had made clear that the state was not only prevented from abridging associational freedom through regulation, but that it was equally powerless to deny equal access to various public facilities to organizations like the Boy Scouts.

That omission turned out to be fatal ten years later when the Supreme Court, again by a 5–4 majority, issued its egregious decision in Christian Legal Society v Martinez.28 That case upheld the decision of Hastings College of Law, a state entity, to exclude the Christian Legal Society from using its various facilities (when not in use for academic purposes) to which it granted access to all other Hastings student groups.29 Justice Ruth Bader Ginsburg simply brushed aside both Dale and the entire doctrine of unconstitutional conditions to reach a profoundly illiberal result.30 The stark differences in approach between the United States and the New Jersey Supreme Courts on vital matters of constitutional interpretation should not be papered over by a federal rereading of New Jersey’s Law Against Discrimination, which the New Jersey court had correctly interpreted.  The Supreme Court was right to decide the case on its merit, even if it decided the case the wrong way.

Punitive Damages. In BMW, Inc v Gore,31 the United States Supreme Court invoked the Due Process Clause of the Fourteenth Amendment to invalidate a punitive damage award from Alabama that exceeded five hundred times the plaintiff’s actual damage.32 The entire case arose when BMW had refinished a car whose paint had been damaged by acid rain without disclosing the fact to the plaintiff.  The plaintiff received a jury award of $2,000 on a tenuous fraud claim.  The jury then proceeded to award $4 million on a punitive damage claim by taking into account similar new paint jobs throughout the United States.  The kicker was that this practice was entirely legal in many of these states.  The Alabama Supreme Court cut the punitive damage award in half, but held that it was proper for the jury to take these out-of-state cases into account. The United States Supreme Court knocked out the verdict on the ground that Alabama could not award punitive damages for actions that were legal in other states.

Mitchell is troubled by the use of substantive due process to achieve that result, noting the controversial status of a doctrine that reached its zenith in Lochner v New York.33 It is, however, far from clear that this should be treated as a substantive due process case at all.  As a matter of general state comity, the courts of Alabama could not reverse the law of other states that find these repaint jobs perfectly legal.  Why, then, should Alabama have the power to attack the law of other states indirectly, by calculating punitive damages for a wrong that was committed solely within the state of Alabama?  The case invokes strong federalism issues.  One of the key functions of the Supreme Court is to police state-to-state interventions on constitutional grounds.  BMW offers a bright line rule to achieve this result, which leads to a far better result than the invocation of the avoidance canon under Murdock.

Defamation In New York Times v Sullivan,34 the United States Supreme Court overturned a $500,000 libel judgment that the Alabama Supreme Court had affirmed against the Times on grounds that were as wrong as wrong could be.  I have strongly criticized the United States Supreme Court for going overboard in fashioning a lot of First Amendment law out of whole cloth.35 But my reasons for concern were quite different from Mitchell’s.  I raised no objection to the application of the First Amendment to libel cases.  One key question in the law of libel is whether a statement that is damaging to the plaintiff is in fact libelous, and it seems that this question of constitutional fact has constitutional dimensions that cannot be ignored.  My objection to New York Times was that it fashioned the wrong constitutional doctrine, most particularly by adopting an actual malice standard for liability on false statements of fact that were, as the phrase goes, of and concerning the plaintiff.  One can reverse that mistake without appealing to Murdock and without trying to manipulate the state law to be applied by a hostile Alabama Supreme Court.

Elections The last case to which I shall refer is Bush v  Gore,36 which in effect resolved the Florida election dispute—which Mitchell scrupulously recounts37—by an appeal to a strained reading of the Equal Protection Clause.  I would have much preferred that all five justices concurred in applying the specific language in Article II, § 1, clause 2, which states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for seats in the Electoral College.38 Mitchell’s account of the various ins and outs of the litigation in Florida tracks my own earlier analysis of the decision.39 He is surely correct in concluding that the decisions of the Florida Supreme Court are “irreconcilable with the provisions in Florida’s election-protest statute.”40

The normal response to this sad truth is to say that this question is, under the standard view, a matter exclusively of state law, which thus ties the hands of the United States Supreme Court unless and until it invokes its tenuous equal protection theory.  I do not think that this is a correct reading of the dividing line between the state and federal interpretation.  I wish that I had been aware of Justice John Marshall Harlan’s treatment of the state law issues in Patterson, in which he refused to let a misinterpretation of state procedural law block consideration of the NAACP’s constitutional claims.  I take the same approach in the Bush v Gore case.  The mangling of the state election law was not just a state issue.  The constitutional provision said that the state legislature should have the last say on the procedures that it adopts to select its members of the electoral college.  That will is frustrated by the indefensible interpretation put on this provision by the Florida Supreme Court.  The clear federal interests involved make it eminently correct for the United States Supreme Court to say that this interpretation should not stand when the state judiciary has usurped a legislative function under the guise of interpretation.

As an institutional matter, it would have been far better if all five justices in the majority of the Supreme Court had signed on to the opinion of Chief Justice William Rehnquist, who was joined by Justices Antonin Scalia and Clarence Thomas.  The stronger focus would have put the attention back on the misdeeds of the Florida Supreme Court, which in turn might have softened the chorus of protest against the vulnerable equal protection claim, which I thought was wrong then and continue to think is wrong today.41 But once again, these arguments have nothing to do with Murdock given that there is a proper and direct route for attacking the state court decision.


Jonathan Mitchell’s Reconsidering Murdock is a highly sophisticated analysis of one of the most neglected doctrines of Supreme Court law.  His analysis of the individual cases to which he applies his keen analytical mind show a real command of subject matter, which shines through no matter what one thinks of the larger thesis that he wishes to advance and defend.  But on that large thesis, I find myself firmly on the other side.  As a matter of standard constitutional interpretation, Murdock’s older view, which held that the Supreme Court has no business trenching into state matters, is one that strikes me as manifestly correct.  In addition, the particular cases that Mitchell advances to show the utility of his limited and focused form of federal intervention are all better decided under traditional constitutional doctrine.  We should be aware of the overuse of the constitutional trope of “avoidance.”  Most constitutional questions should be decided in clear and forthright terms when they are raised.  The Supreme Court should not hesitate to call out the heavy constitutional artillery.  May it have the wisdom to direct its guns to the right constitutional targets.


Richard A. Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School.

Copyright © 2011 University of Chicago Law Review.

  1. 77 U Chi L Rev 1335 (2010).
  2. 87 US (20 Wall) 590 (1874).
  3. 14 US (1 Wheat) 304 (1816).
  4. Judiciary Act of 1789 § 25, 1 Stat 73, 85–87.
  5. See 14 US (1 Wheat) at 351.
  6. See US Const Art III, § 2, cl 1 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.”).
  7. 5 US (1 Cranch) 137 (1803).
  8. Oliver Wendell Holmes, Collected Legal Papers 295–96 (Harcourt 1920).
  9. See Mitchell, 77 U Chi L Rev at 1346–50 (cited in note 1).
  10. Act of Feb 5, 1867, ch 28, § 1, 14 Stat 385.
  11. The original proviso stated: “{N}o other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.” Judiciary Act of 1789 § 25, 1 Stat at 86–87, discussed in Mitchell, 77 U Chi L Rev at 1346–47 (cited in note 1).
  12. Compare Act of Feb 5, 1867, ch 28, § 1, 14 Stat at 387 (“{T}he Supreme Court may, at their discretion, proceed to a final decision of the same, and award execution, or remand the same to an inferior court.”), with Judiciary Act of 1789 § 25, 1 Stat at 85–87 (“{T}he Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution.”). See also Mitchell, 77 U Chi L Rev at 1346–47 (cited in note 1).
  13. See Murdock, 87 US at 627–28.
  14. On which, see William J. Brennan, Jr, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489, 501 (1977). Addressing state court decisions dealing with matters of state law, Brennan asserted that state court interpretations of state constitutional provisions “not only cannot be overturned by, they indeed are not even reviewable by, the Supreme Court of the United States. We are utterly without jurisdiction to review such state decisions.” Id.
  15. US Const Art III, § 2.
  16. For my discussions of the point, see generally Richard A. Epstein, Standing in Law & Equity: A Defense of Citizen and Taxpayer Suits, 6 Green Bag 2d 17 (2002); Richard A. Epstein, Standing and Spending—The Role of Legal and Equitable Principles, 4 Chap L Rev 1 (2001).
  17. 585 P2d 351, 354–55 (Okla 1978), revd 444 US 286 (1980).
  18. World-Wide Volkswagen, 444 US at 295–99.
  19. See Mitchell, 77 U Chi L Rev at 1336 n 2 (cited in note 1), citing Ex parte NAACP, 91 S2d 214 (Ala 1956); City of Columbia v Bouie, 124 SE2d 332 (SC 1962).
  20. 357 US 449, 462–63 (1958).
  21. See Mitchell, 77 U Chi L Rev at 1356 (cited in note 1).
  22. Patterson, 357 US at 457–58.
  23. 734 A2d 1196 (NJ 1999).
  24. NJ Stat Ann § 10:5-4 (West).
  25. Dale, 734 A2d at 1230.
  26. See Boy Scouts of America v Dale, 530 US 640, 647–48 (2000).
  27. See generally Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy Scouts, 74 S Cal L Rev 119 (2000).
  28. 130 S Ct 2971 (2010), criticized in Richard A. Epstein, Church and State at the Crossroads: Christian Legal Society v. Martinez, 2010 Cato S Ct Rev 105.
  29. Christian Legal Society, 130 S Ct at 2995.
  30. See id at 2975 (distinguishing the case from Dale on the ground that Dale dealt with antidiscrimination law “that compelled a group to include unwanted members, with no choice to opt out”), criticized in Epstein, 2010 Cato S Ct Rev at 109–10, 125–29 (cited in note 26).
  31. 517 US 559­ (1996).
  32. Id at 585.
  33. 198 US 45, 56 (1905), cited in Mitchell, 77 U Chi L Rev at 1384 n 193 (cited in note 1).
  34. 376 US 254, 279–83 (1964).
  35. See Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U Chi L Rev 782, 797 (1986), cited in Mitchell, 77 U Chi L Rev at 1386 n 202 (cited in note 1).
  36. 531 US 98, 110 (2000).
  37. See Mitchell, 77 U Chi L Rev at 1373–82 (cited in note 1).
  38. US Const Art II, § 1, cl 2.
  39. See generally Richard A. Epstein, “In such Manner as the Legislature Thereof May Direct”:  The Outcome in Bush v Gore Defended, 68 U Chi L Rev 613 (2001). As Mitchell notes, the received wisdom of the legal academy was decidedly opposed to this view.  See Mitchell, 77 U Chi L Rev at 1373 & nn 148–49 (cited in note 1), citing David A. Strauss, Bush v Gore: What Were They Thinking?, 68 U Chi L Rev 737, 738 (2001).
  40. Mitchell, 77 U Chi L Rev at 1375 (cited in note 1).
  41. See Epstein, 68 U Chi L Rev at 614 (cited in note 39) (“Any equal protection challenge to the Florida recount procedure quickly runs into insurmountable difficulties.”).

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