Clio on steroids: historical silence as a presumption of unconstitutionality.

• Author: Camardo, Sam
• Position: III. The Presumption of Invalidity Is Unsound through Conclusion, with footnotes, p. 563-587

3. THE PRESUMPTION OF INVALIDITY IS UNSOUND

   "[W]hat history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.... No formula could serve as a substitute, in this area, for judgment and restraint." (277)

   This section discusses the logical flaws of a presumption of invalidity for novel governmental actions. The first issue, explained by Justice Harlan above, is that tradition is a living thing. It did not die in 1789. American society has changed drastically since then and will continue to change in the future. Second, what the history books actually reveal is debatable, if not completely unclear. Such debate invites the advocate--even the judge--to employ, consciously or not, his or her own values and preferences to resolve it. The problem is most obvious when political questions, purportedly decided long ago, are "constitutionalized" by unelected Supreme Court justices. Resolution of a historic debate about what the founders intended or meant by non-historian Supreme Court justices should not decide concrete cases that deal with today's issues. That problem is then compounded when the debate is whether the page is blank, which elicits the third issue: As a practical matter, how is silence read? Supreme Court justices cannot read the minds of our ancestors. Nor can they read the collective minds of every member of Congress until the unprecedented action was taken to ascertain why Congress waited. Lastly, though perhaps most problematic, a presumption of invalidity inverts the principle that the Court should defer to its coordinate branches' actions. This section concludes that a presumption of invalidity is untenable and should be avoided.

   1. The Dynamic Conception of Tradition

      That first issue is history's enduring and dynamic nature--indeed, "tradition is a living thing." (278) This Note does not argue that the Constitution should be construed as a living document. The argument here is narrow: history--which is dynamic and evolves over time--should not be fixed at 1789 by the Court; doing so effectively murders tradition in cold blood. A novel government action subjected to a presumption of invalidity is as dead as the abacus, the typewriter, and the Atari. The difference is that the novel government action is likely to deal with new issues caused by new technology, which was the death knell for things like the Atari.

      The case of the Atari provides a helpful example. As one of the first companies to develop a video game system, Atari marketed games such as Asteroids and Pong. Those types of games did not require government regulation regarding distribution of violent content to minors. Fast forward roughly forty years, and there are major concerns with games like Grand Theft Auto and Postal 2. (279) Those games, which, among other things, allow the user to "pour gasoline over [victims], set them on fire, and urinate on them," (280) are cause for concern when placed in the hands of highly impressionable, young children. Attempting to deal with that problem, California passed a law that prevents children from purchasing, without their guardian's consent, such violent video games. (281)

      Is that law constitutional? Or does it violate the video game maker's (or the child's) First Amendment rights? The law is novel and unprecedented: no legislature, state or federal, has ever placed restrictions on the distribution of violent expression. But that fact reveals very little about the law's constitutionality. Video games that allow the user to perform violent and sadistic actions to virtual humans were not available to our Founding Fathers' children. (282) Indeed, such games were not available until very recently. There is no way of knowing what the founders, or anyone in 1789, would have thought about restricting children's access to these games.

      But that is the precise question the unprecedented argument elicits: "Was there any indication that anybody thought, when the First Amendment was adopted, that there ... was an exception to it for ... speech regarding violence?" (283) That question is unhelpful because there is nothing in history, especially in pre-1800, even remotely similar to Grand Theft Auto or Postal 2. A person could make threats or falsely yell fire in a crowded parlor, but those utterances are not protected speech. (284) One could paint a violent picture or write a violent book, but there was no medium to express--or act out--violence like Xbox or PlayStation, especially one marketed towards the young. The First Amendment rights of the purveyors of such violent expression (or of children playing the games) were never debated. The conclusion follows that laws were never passed to curtail those rights. Despite the historic dearth of violent video games, the Supreme Court found that there was no traditional First Amendment exception for violent expression (analogizing games like Postal 2 to Snow White and Cinderella), subjected the California law to strict scrutiny, and invalidated it. (285) Whether the law passes constitutional muster should not depend on such an arbitrary inquiry that can only have one answer.

   2. Law-Office History Applied

      Even if the presumption of invalidity is appropriate, the issue of ambiguous history--and the Court's struggle with historical accuracy--remains. It is one thing for Justices to debate the meaning and import of the Court's own decisions. (286) That is their expertise. But with respect to historical assertions of fact, there is cause for concern. The problem was recognized by historian Alfred H. Kelly in 1965. (287) Judges are ill-equipped to decide historical questions in general. That concern is amplified when the historical assertion is what did not happen or was not said, especially when there is valid disagreement.

      This is not to say there is no place for history. Demonstrated in Part I and reiterated here, history can be extremely informative of, for example, what works, what does not, and what is good, bad, or ugly. The Court, however, must be candid and objective when it uses history as authority. (288) If the historical facts are clearly contradicted or ambiguous, the Court should follow the lead of one of its most noteworthy opinions: Brown v. Board of Education. (289) In 1953, when the Court ordered re-argument, (290) it asked about the history of the Fourteenth Amendment, specifically, whether the framers of the amendment intended to outlaw segregation or thought that a future Court could do so. (291) Kelly, who assisted writing the NAACP's brief for re-argument, noted that the result was "elaborate pieces of law-office history" on both sides. (292) The Court's response--the correct one--was to dismiss the history as inconclusive. (293) Kelly's "half-educated guess" was "that the competing briefs exposed too grossly ... the entire fallacy of law-office history." (294) Whether or not that was the Court's reasoning, today's Court should take heed. The modem Court's opinions--and attacks in footnotes--demonstrate the embarrassment the Court saved itself from in Brown.

      For example, in Printz the Court took fourteen pages to assert that commandeering state and local executives was a novel exercise of power. (295) First, did the framers mention it? In Federalist 27, Hamilton noted: "The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws." (296) Later, in the same paragraph, Hamilton stated:

      It merits particular attention ... that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. (297) Those passages seem clear enough. At a minimum, Hamilton's discussion showed that the governmental action taken in Printz was not thought forbidden. The majority discounted Hamilton's essays as coming "from the pen of the most expansive expositor of federal power." (298) According to Justice Scalia, writing for the majority, "[t]o choose Hamilton's view, as Justice Souter [dissenting] would, is to turn a blind eye to the fact that it was Madison's--not Hamilton's--that prevailed." (299)

      So apparently the question is: What did Madison think? In Federalist 44, responding to the question of why state executives and legislators must be bound by oath to the Constitution, Madison stated, "The members and officers of the State governments.., will have an essential agency in giving effect to the federal Constitution." (300) Madison went on to note that the election of federal officers necessarily depended on the states. (301) In Federalist 45, Madison, after discussing the limited number of federal employees, noted, "[i]ndeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union." (302) The position is somewhat ambiguous, but it does not support the assertion that Madison viewed commandeering state executives prohibited by the Constitution. Indeed, four Justices--and commentators--read the history quite differently than the Printz majority. (303)

      That "none of these statements necessarily implies ... that Congress could impose the[] responsibilities without the consent of the States" (304) is true. That formulation, whether the Federalist Papers necessarily imply the power, is far too narrow. Even...