Combining constitutional clauses.

• Author: Coenen, Michael
• Position: IV. The Pros and Cons of Combination Analysis through Conclusion, with footnotes, p. 1101-1130

4. THE PROS AND CONS OF COMBINATION ANALYSIS

   The discussion thus far has attempted to show that combination analysis qualifies as a doctrinally familiar and conceptually coherent method of constitutional decisionmaking. But determining that combination arguments are allowed is not the same thing as determining that they are good. This Part thus turns to this next question: Should courts utilize combination analysis as a means of deciding constitutional cases? It begins by sorting out several "results-neutral" reasons that militate for and against the use of combination analysis in constitutional cases, the force of which should not depend on one's prior commitments to a particular set of constitutional outcomes. The analysis then turns to the results-oriented dimensions of the problem, asking whether and to what extent different forms of combination analysis might align with different substantive visions of constitutional law.

   1. Reasons to Combine

      1. Avoiding Anomalous Results

         Imagine two tort cases, the first involving the negligent operation of a motor vehicle and the second involving the negligent publication of a defamatory statement. In the car crash case, the defendant collects $100,000 in compensatory damages and $1.5 million in punitive damages. In the defamation case, the defendant collects $100,000 in compensatory damages and $1.2 million in punitive damages. Outsized ratios between punitive and compensatory damages render both judgments susceptible to invalidation under due process doctrine, which disfavors punitive-to-compensatory ratios in excess of ten-to-one. (138) But the defamation case, unlike the car crash case, also presents a potential First Amendment problem, as the Court has read the Free Speech Clause to limit recovery in some cases involving negligent acts of defamation. (139)

         Now, let us suppose that an honest, all-things-considered application of the Court's punitive damages case law ultimately yields the conclusion that the $1.5 million punitive damages award in the car crash case violates the Due Process Clause, while also yielding the conclusion that the $1.2 million award in the defamation case barely passes muster. Thus, on a purely clause-specific approach to the problem, the defamation judgment is unconstitutional if and only if it violates the First Amendment. That analysis will in turn depend on whether the plaintiff qualifies as a "public figure" or whether the defamatory statement involved an issue of "public concern." (140) And let us suppose on that score that a comprehensive application of free speech doctrine yields the conclusions that (a) the defamation plaintiff, though bearing some of the hallmarks of a public figure, does not qualify as such; and (b) the subject of the defamatory publication, though bearing some of the hallmarks of a public issue, does not qualify as such. Consequently, the defamation judgment counts as constitutionally permissible as a First Amendment matter, constitutionally permissible as a due process matter, and hence constitutionally permissible overall.

         An anomalous result thus arises: The damages award in the car crash case presented one and only one constitutional problem. The damages award in the defamation case was only slightly less problematic from a due process perspective, but far more problematic from a First Amendment perspective. That makes the defamation case seem constitutionally worse overall than does the car crash case, meaning that the invalidity of the defamation judgment ought to follow a fortiori from the invalidity of the car crash judgment. Yet, a clause-specific application of Supreme Court case law produces the result that the car crash judgment warrants constitutional invalidation whereas the defamation judgment does not. Such an outcome would strike many individuals as improvident, counterintuitive, and unfair. And it is only by combining the clauses that the apparent anomaly can be avoided; only by adding together the free speech and due process difficulties with the defamation judgment can one demonstrate that it in fact qualifies as constitutionally worse (rather than better) than its car crash counterpart. (141)

         Generalizing from this example, we reach the central point: combination analysis facilitates improved forms of analogical reasoning. When deciding a case in light of previous precedents, courts can compare the overall constitutional picture of the former with the overall constitutional picture of the latter. Clause-specific analysis, by contrast, forces the Court to construct precedential walls that obscure important features from view: if a court cannot combine the First Amendment with the Due Process Clause when seeking guidance from past First Amendment and due process precedents, then its evaluation of the case will be distorted, ft must ignore the First Amendment features of the case when applying due process precedents, and it must ignore the due process features of the case when applying First Amendment precedents. And that, in turn, increases the likelihood that the Court will render a judgment that seems to be at odds with common sense, either by validating government action that seems constitutionally worse than past actions it has invalidated, or by invalidating government action that seems constitutionally better than past actions it has allowed. (142)

      2. Narrowness and Transparency

         Combination analysis might also prove useful to a court wishing to narrow the scope of a doctrinal holding. This point may seem counterintuitive: combination analysis, after all, both draws from and contributes to multiple doctrinal areas at once and would thus seem to amplify, rather than diminish, the precedential implications of a given judicial holding. The breadth of a decision, however, cannot be measured solely in terms of the number of different clauses whose decision rules it affects; of no less importance is the range of different fact patterns for which the holding will carry force. (143) And on this metric, combination-based holdings will sometimes qualify as narrower than their clause-specific counterparts, furnishing courts with an effective means of limiting the precedential sweep of the holdings they pronounce.

         Recall Justice Black's opinion in Griffin v. Illinois, which concluded that the Equal Protection Clause and the Due Process Clause together prohibited Illinois from requiring defendants to pay a transcript fee as a condition of filing a criminal appeal. (144) The reasoning of the opinion may not have been narrow in an absolute sense, but it was likely narrower than it would have been if Justice Black had invoked only the Equal Protection Clause or only the Due Process Clause as the basis for the Court's decision. Why? Because each of the two clauses helped in its own way to make a particular aspect of the case's fact pattern relevant to the Court's legal reasoning. The Equal Protection Clause rendered relevant the fact that the Illinois transcript fee imposed disparate burdens on the basis of wealth. (145) And the Due Process Clause rendered relevant the fact that the transcript fee limited access to procedural rights in the criminal setting. (146) By relying on both clauses, the Griffin plurality could and did construct an opinion about both wealth-based classifications and the criminal justice system together, rather than a broader "equal protection-only" opinion about wealth-based classifications inside and outside of the criminal justice system, or a broader "due process-only" opinion about discriminatory and nondiscriminatory rules of criminal procedure. Put differently, by grounding its reasoning in two clauses rather than one, the plurality in Griffin helped to confine the precedential scope of the opinion to the narrowed zone of overlapping territory that the two clauses shared.

         None of this means that combination analysis is necessary to the issuance of narrow doctrinal holdings: the clauses certainly can give rise to highly fact-specific holdings on their own. And even in cases that might lend themselves to combination-based reasoning, a pro-minimalism but anti-combination court could still render a narrow holding by dictating that additional factual features of a case do in fact bear relevance to the application of a seemingly unrelated clause. The Court might have held in Griffin, for instance, that the Equal Protection Clause carries special force in cases involving criminal appeals, while taking pains not to mention the Due Process Clause. Alternatively, it could have said that the Due Process Clause carries special force when the government discriminates on the basis of wealth, while taking pains not to mention the Equal Protection Clause. If the Court is determined enough to narrow without combining, it can always do so by simply specifying that its holding should extend no further than the particular factual scenario to which it applies.

         But while this alternative strategy can certainly produce narrowness, it will often do so at the expense of introducing new problems related to the overall coherence of the doctrine writ large. If, for instance, the Court were to render an "equal protection-only" holding emphasizing the special procedural value of the right to appeal, it would be introducing into its equal protection doctrine a set of orphaned, quasi-due process precedents with an uncertain connection to the lion's share of access-to-justice cases. Likewise, if the Court were to render a "due process-only" holding that emphasized equality-related values, it would be introducing into its due process doctrine a set of quasi-equal protection precedents with an uncertain connection to the lion's share of cases dealing with wealth-based classifications. By invoking both of the clauses and precedents associated with these values, by contrast, the Court can more precisely situate its holding within the existing universe of its prior cases--explicitly drawing from...