Crack cocaine, congressional inaction, and equal protection.

• Author: Larkin, Paul J., Jr.
• Position: II. Crack Cocaine, Race, and Equal Protection Law B. Legislative Inaction and Equal Protection 3. Equal Protection Principles through IV. Conclusion, with footnotes, p. 266-294

The immediate purpose of Magna Carta was to end a civil war between King John and the English barons. (122) Drafted by the rebellious barons and other opponents of the crown and forced on a politically weakened king, (123) Magna Carta was an intensely practical document, unlike the philosophical statement of principle found in our Declaration of Independence. (124) Indeed, Magna Carta was originally thought to be a failure because the crown and barons resumed their civil war almost be fore the ink was dry. (125) But history has proved the charter's importance long after the death of its signatories.

Because Magna Carta was a written charter bearing King John's seal and committing him and his successors "publicly for all time" to observe its requirements, (126) the charter's "immediate result, apart from the reforms contained in it, was to familiari[z]e people with the idea that by means of a written document it was possible to make notable changes in the law," (127) a proposition that foreshadowed our written Constitution. Another "decisive achievement[] of 1215" was the "shift" from "individual" to "communal" or "corporate privilege," which laid the framework for our Bill of Rights. (128) In 1297, King Edward I placed Magna Carta on the Statute Books of England, (129) and in 1368 Parliament effectively bestowed on Magna Carta the status of a constitution,130 by providing that it would nullify the terms of any inconsistent law. (131) Over the ensuing 800 years, Magna Carta has become one of the foundational laws of Anglo-American legal history. (132)

The critical section in Magna Carta is Chapter 39, a provision that "stands out above all others," (133) perhaps to the point of being "a sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had.'" (134) It provided that "[n]o free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go send against him, except by the lawful judgement of his peers or by the law of the land." (135) By stating that even the king was subject to the rule of law, Chapter 39 imposed substantive and procedural restraints on the crown to prevent King John from abusing royal power. (136) It sought to protect parties against arbitrary detention and punishment by prohibiting such action "except by the lawful judgement of his peers or by the law of the land," (137) a term that Coke construed to refer to "'the Common Law, Statute Law, or Custome of England." (138)

The colonists brought English law, including Magna Carta and Coke's treatise, with them to the New World. (139) The guarantee of "the law of the land" or "due process of law" appeared in the charters of the colonies, in statutes passed by the colonial assemblies, in resolutions of the Continental Congress, in the Declaration of Independence, and in state constitutions. (140) Chapter 39 is the direct historical antecedent to the "cornerstone" principle carried forward into contemporary English law (141) and the Fifth and Fourteenth Amendment Due Process Clauses" (142) No one may be "deprived of life, liberty, or property without due process of law." (143)

Chapter 39 of Magna Carta was a historic guarantee in Western civilization, and it has served as a font of liberty in England and America. Yet, Chapter 39 did not impose any duty on the king to rule, make decisions, or issue edicts of any type. (144) On the contrary, the barons who forced Magna Carta on King John sought to weaken his ability to rule, and they likely would have been perfectly happy if he had left them alone and done nothing. Over time, English law recognized that Magna Carta also limited the authority of Parliament, which cannot enact legislation that conflicts with Magna Carta. But the Great Charter does not require Parliament to legislate at all. (145) The same principle took root in this nation. Early American judicial decisions and treatises regarded due process as a protection against government, including the legislature, not as a guarantee of action by government. (146) Contemporary Supreme Court decisions agree. (147) The bottom line is this: The English barons and American Framers intended that the guarantees afforded by "the law of the land" and "due process of law" would serve as entirely negative protections against the government, and they have been construed to afford only such protection ever since. Congressional inaction therefore cannot violate the Due Process Clause. (148)

3. Equal Protection Principles

Equal protection law demands that the government justify the distinctions it draws. (149) That rule applies to courts as well as to legislatures and executive officials. (150) The argument therefore could be made that it would be irrational, so irrational as to be unconstitutional, for a court to construe the Due Process Clause in a manner that distinguishes congressional inaction from congressional action, or distinguishes congressional inaction from state legislative inaction. After all, it is possible for Congress to pass legislation with a benign intent that becomes malignant as time goes by, legislation that a majority of each chamber of Congress cannot or refuses to modify. Leaving in place a law that has a racially offensive effect, the argument continues, is not materially different from enacting such a law today. Finally, it also makes little sense for due process to have one meaning for purposes of the Fifth Amendment and a different one for the Fourteenth Amendment.

Is the premise of that argument possible? People certainly could act in a group for illicit reasons that no individual would endorse. Yet, the political world today is not dead set on discriminating against African-Americans, who occupy important positions in the federal, state, and local governments and other policymaking arenas. (151) Civil rights laws such as the Voting Rights Act of 1965 have outlawed the racially discriminatory practices that previously resulted in widespread disenfranchisement of African-Americans. (152) Congress is not chock full of legislators whose judgments could be deemed presumptively racist. (153) Arguably, that outcome is far less likely to happen on Capitol Hill than elsewhere. The national media focuses their attention on Capitol Hill, making it highly unlikely that the actions of a bigoted Congress could go unnoticed. If a Senator or Representative were shown to have intended to discriminate against African-Americans, the media would pillory him, and the electorate would exact retribution at the next election. Unfortunately, it nonetheless is the case that there will be politicians who may act with discriminatory purposes or who may delight in seeing discriminatory outcomes--just as there will be politicians who commit crimes. (154) Still, unless that discriminatory intent becomes positive law, it does not violate the Constitution any more than an "evil intent" constitutes a crime before it accompanies a criminal act. (155)

Subjecting congressional inaction to equal protection review also poses a raft of decisional problems for the courts. For example, courts would have to define a time period past which they would deem unreasonable Congress's failure to pass remedial legislation. Any period chosen by the courts would be entirely arbitrary, however, because neither Article I nor the Due Process Clause supplies a yardstick for fixing its length. Some courts might select a two-year period because that is the term held by a member of the House of Representatives; others might select a six-year period because that is the tenure for a Senator; and a third group might split the difference and use a four-year span, which also coincides with the term of the President. Alternatively, courts might calculate the mean period that it takes for Congress to pass legislation and use it as the standard. But even this approach would lead to an arbitrary result. Unless every bill were treated the same as every other, courts would be forced to define categories of legislation--appropriations bills versus substantive bills, environmental bills versus criminal bills, civil rights bills versus tax bills, and so forth--to use for comparison without being able to draw upon any textual guidance from the Constitution regarding how long a particular bill should take to become law. Trying to decide how to treat bills negotiated by a conference committee after passage by each chamber or negotiated between the Congress and the President before a bill is introduced in either chamber further exacerbates the complexity of the undertaking. Thus, there is no objective way for the courts to define the amount of time Congress may have to address a particular problem before the courts would find its inaction unconstitutional. (156)

An additional factor that the courts would need to evaluate is the reason why each chamber did not remedy the identified racially discriminatory law. But that inquiry would force courts to decide why each member voted as he or she did, to gauge the seriousness of each of the manifold issues facing Congress, and to rank problems by their severity, immediacy, or irreparability. For example, who can answer objectively which concern is more important, more urgent, or more demanding of legislators' immediate attention than the others--remediating the radioactive waste generated at nuclear power plants and nuclear weapons facilities, identifying the precise combination of tax benefits and spending cuts that will best reduce the federal deficit without stalling the economy, choosing between greater federal spending for medical or scientific research, or deciding whether the federal crack cocaine sentencing laws unfairly burden African-Americans--without measurably deterring use of that drug? Again, there is no objective metric that courts can use to define those cardinal values or to establish ordinal relationships ranking those problems, and reasonable...