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Published online by Cambridge University Press: 25 April 2012
Proceeding inductively, starting with three standard examples of major constitutional change, this short essay offers a theory of the Constitution, derived from its historical imposition on the criminal law. The theory proposes to unite constitutional provision, structure, and operations within a single framework over time.
1. The most impressive work to date is Ackerman's, BruceWe The People (New Haven: Yale University Press), beginning with Volume I: Foundations, published in 1992Google Scholar. This work, however, suffers in both respects mentioned, perhaps through its concentration on “constitutional moments,” defined as points of major constitutional change, rather than on “normal politics.” I exclude from consideration theories of constitutional interpretation, which are explicitly normative in thrust, concerned with fundamental law's legitimate application.
2. By “developmental” I mean displaying durable shifts in governing authority. For an extended discussion see Orren, Karen and Skowronek, Stephen, The Search for American Political Development (New York: Cambridge University Press, 2004)CrossRefGoogle Scholar.
3. This is not the only periodization scheme of constitutional or political development extant. These periods, however, are the ones most consistently (and minimally) relied upon on by political scientists. See Burnham, Walter Dean, Critical Elections and The Mainsprings of American Politics (New York: W. W. Norton, 1970), 1970Google Scholar; Brady, David and Stewart, Joseph Jr., “Congressional Party Realignment and Transformation of Public Policy in Three Realignment Eras,” American Journal of Political Science 26 (1982): 333–60CrossRefGoogle Scholar; Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge, Mass.: Harvard University Press, 1997)Google Scholar.
5. Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969)Google Scholar, pp. 325 ff., 485 ff.
6. See on this point and for an excellent account generally, Mann, Bruce H., Republic of Debtors: Bankruptcy in the Age of American Independence (Cambridge, Mass.: Harvard University Press, 2002)Google Scholar.
7. Figures on debtors are from Christopher Walker, “Debtors and Paper Currency During the Articles of Confederation,” typescript, 2010, on file with the author.
8. Campbell, Stanley W., The Slave Catchers: Enforcement of the Fugitive Slave Law, 1840–1860 (Chapel Hill: University of North Carolina Press, 1970)Google Scholar, 111 and passim.
9. 5 Op. Atty. Gen. 287, January 17, 1851.
10. 6 Op. Atty. Gen. 237, December 20, 1853.
11. Appendix, Congressional Globe, 33rd Congress, 2nd sess., February 23, 1855. The quote from Wade is on p. 214.
12. Forbath, William E., “The Shaping of the American Labor Movement,” Harvard Law Review 102 (April 1989): 1187CrossRefGoogle Scholar, and footnotes 351 and 352. “Criminal” contempt usually refers only to contempts “in the face of the court,” before the judge in person.
13. Shesol, Jeff, Supreme Power: Franklin Roosevelt v. The Supreme Court (New York: W. W. Norton, 2010) pp. 222–24Google Scholar. The decision was Morehead v. Tipaldo, 298 U.S. 587.
14. This is also the thesis of my paper “The Criminal Law Foundations of American Constitutional Development and How it Matters,” prepared for the 2010 Annual Meeting of the American Political Science Association, Washington, D.C. For the concepts of “constitutional moments” and “normal politics,” see Ackerman, We the People.
15. The question might well arise whether this is not old wine in a new bottle, that the crimes described here are simply what other scholars have described as the oppressive exercise of government or private power. This dismissal is defeated, I believe, by the causal connection between law breaking and constitutional development—specifically, and not as a proxy for, say, a social movement explanation of constitutional change. As for the issue of redundancy more generally, I know of no theory whatever that links the constitutional and criminal law systematically rather than episodically (e.g., through criminal cases like United States v. Cruickshank), let alone across the full spectrum of constitutional affairs. Whether this produces a compelling picture of constitutionalism will remain open to argument. Whether one finds the prospect of unifying theory more satisfying than fragmented and localized theory may, in the end, come down to a question of intellectual taste.
16. See Orren, Karen, “Officers Rights: Toward a Unified Field Theory of American Constitutional Development,” Law and Society Review, 34 (2000), 873–905CrossRefGoogle Scholar.
17. The current “clearly established” standard is usually located in Harlow v. Fitzgerald, 457 U.S. 800 (1982), p. 815.
18. In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held habeas appeal available in immigration disputes, setting the habeas appeal directly under the Supremacy clause. In 2005, Congress passed the REAL ID Act, aimed expressly to reverse that decision. The Court has yet to resolve the Act's constitutional validity. In Boumedienne v. Bush, 553 U.S. 723 (2008), the Court held that prisoners at Guantanamo Bay had full rights to congresssional provision in accordance with the Suspension clause.
19. Since the 1960s, most suits against officeholders have been filed under Sec. 1983 of the federal civil code. Section 1983, first promulgated in 1871, has a criminal counterpart, punishing many of the same acts by fine and imprisonment under various sections of the U.S. Criminal Code, principally Chap. 18, Sec. 242.
20. For instance, Milsom, S. F. C.: “The miserable history of [criminal law] in England can be shortly told. Nothing worth-while was created. There is no achievement to trace.” Historical Foundations of the Common Law (London: Butterworths, 1969), p. 353Google Scholar.
21. Rossman, David, “‘Were There No Appeal’: The History of Review in American Criminal Courts,” Journal of Criminal Law and Criminology 81 (1990): 549CrossRefGoogle Scholar.
22. “Officism” and “citizenism” are more fully elaborated in Orren, “Criminal Law Foundations of American Constitutional Development,” footnote 14 above.
23. The diagram, originally published in 1886, is reprinted in Marsden, George M., Fundamentalism and American Culture (New York: Oxford University Press, 1980), p. 69.Google Scholar
24. 558 U.S. 50 (2010).
25. 494 U.S. 652 (1990).
26. 539 U.S. 558 (2003).
27. A formulation of the pro-choice argument consistent with these remarks is in McDonagh, Eileen, Breaking the Abortion Deadlock: From Choice to Consent (New York: Oxford University Press, 1996)Google Scholar.
28. See Jamison, Cynthia C., “The Cost of Defiance: Plaintiffs' Entitlement to Damages under the California Civil Rights Initiative,” 33 Southwestern University Law Review 521 (2004)Google Scholar; and Coalition for Economic Equity v. Wilson, 122 F.3d 692 (1997).
29. See, for instance, Friendly, Henry J., “The Historic Basis of Diversity Jurisdiction,” Harvard Law Review 41 (1928): 496–97CrossRefGoogle Scholar; and Mann, Republic of Debtors.
30. This situation is fully analyzed in Pope, James Gray, “The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of Constitutional Law, 1921–1935,” Columbia Law Review 102 (2002)CrossRefGoogle Scholar.
31. 304 U.S. 144 (1938), f.n. 4.
32. 60 U.S. 393 (1857).
33. See examples in Baker, John S., “State Police Powers and Federalization of Local Crime,” Temple Law Review 73 (1999)Google Scholar; Greenblatt, Nathan, “How Mandatory are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences,” American Criminal Law Journal 36 (2008)Google Scholar; Klein, Susan and Thompson, Sandra Guerra, “DOJ's Attack on Federal Judicial ‘Leniency,’ The Supreme Court's Response, and the Future of Criminal Sentences,” Tulsa Law Review 44 (2009)Google Scholar.
34. 545 U.S. (2005) 1.
35. Ibid., 42. Gonzales v. Oregon, 546 U.S. 243 (2006) upheld the Oregon judiciary's interpretation of that state's provision for physicians to administer medications regulated by federal law to assist the suicides of terminally ill patients, against U.S. Attorney General Ashcroft's decision that such administration was in violation of the Controlled Substances Act. 546 U.S. 243. Justice Thomas's dissent argues the majority's opinion is a repudiation of its reasoning in Raich. 546 U.S. at 299.
