Constitutional road maps.

Author:Luna, Erik


Generations of constitutional scholars have obsessed over the Supreme Court's unique power of review, reiterating the anti-democratic perils that attend judicial scrutiny of majoritarian legislation.(1) To some, "judicial review is a deviant institution in the American democracy,"(2) allowing unelected members of a politically insular, life-long fraternity to second-guess the policy choices of the people or their elected representatives. Others seem less disturbed by the countermajoritarian nature of judicial review, noting that although "[d]emocracy does not insist on judges having the last word, ... it does not insist that they must not have it."(3) As such, the focus of the countermajoritarian difficulty might be narrowed to the ensuing reaction or "dialogue" between the judicial and political branches. This dialogue is not unlike interpersonal communication, with one party (usually the legislative branch) suggesting a solution to a given problem and the other party (usually the judicial branch) critiquing the solution against important background principles (the Constitution, for instance). Whether the dialogue continues is the true difficulty of countermajoritarianism: Can lawmakers or law enforcers affirmatively respond to a judicial decision and, if so, what form can the reaction take?

These questions are, in fact, part and parcel of a related academic debate--increasing interbranch dialogue. For decades, some of the most respected legal scholars have sought to enhance the discourse of judges and politicians--particularly between the Supreme Court(4) and lawmakers(5)--suggesting that the lack of communication coupled with obstinate decisionmaking resulted in inferior legislation or judicial imperialism. Better government, these commentators argued, requires an ongoing conversation among the branches of government on the fundamental principles in a constitutional democracy.(6) Yet no advocate of interbranch dialogue takes lightly the Court's authority to invalidate majoritarian decisionmaking. When striking down legislation pursuant to the Constitution, the Justices not only void a particular law but may also stifle future legislation. By its constitutional pedigree, a decision can dissuade further debate and political action, as lawmakers seldom rally around a law that will be dead on arrival at the Supreme Court.(7)

In the course of striking down legislation, however, the Court can also spur political discourse and lawmaking through the crafting of opinions. It is true, of course, that the Justices rarely speak solo voce. Instead, nine separate individuals offer their views, often in voting blocks, without a prefabricated "game plan" of vote distribution and opinion content to achieve optimal interbranch dialogue.(8) But the Court's nature as a group of distinct jurists rather than a monolithic entity does not prevent it from being anthropomorphized by the political branches and the public. To legislators, the written decision is a holistic instrument of a single "being"--the United States Supreme Court--that either allows or prohibits a political reaction. And although the Court does not have human will, opinions demonstrate a type of "intent" or mens legis that can inform the actions of lawmakers. In particular, an opinion can: (1) actively encourage political dialogue; (2) actively discourage such dialogue; or (3) have no dialogic aspirations whatsoever. While the second option largely precludes normal lawmaking,(9) the first option (and possibly the third) leaves the door open for a legislative response.

Among the more radical forms of post-invalidation encouragement is what I call a "constitutional road map." Under this judicial strategy, the Supreme Court strikes down the law in question but then suggests legislative alternatives consistent with the Constitution. In other words, the opinion offers a "road map" for lawmakers to follow in creating a constitutional statute. Although not unprecedented in First Amendment doctrine, for example,(10) the strategy was foreign to criminal procedure jurisprudence. This changed, however, with the Court's recent decision in City of Chicago v. Morales.(11) At issue was the constitutionality of Chicago's gang-loitering law,(12) a statute that empowered law enforcement to prevent public congregation of gang members and their associates; and in a splintered opinion, the Supreme Court held that the ordinance violated due process. Yet the most significant portion of Morales was not the judgment or its rationale but the concurrence of Justice Sandra Day O'Connor. Despite agreeing that the gang-loitering ordinance was unconstitutional, O'Connor suggested that Chicago had lawful alternatives at its disposal. Her concurrence then sketched out potential statutory provisions that would survive judicial scrutiny,(13) offering a constitutional road map for lawmakers to follow in reenacting the ordinance.

Just this past term, the Supreme Court had another opportunity to employ the road mapping strategy in a criminal procedure case. In Dickerson v. United States,(14) the Court addressed for the first time a 32-year-old federal law(15) purporting to overrule Miranda v. Arizona(16) and its consequences for custodial interrogation. For any number of reasons, both legal and pragmatic, this statute had real difficulty withstanding judicial review. But even if the Justices felt compelled to invalidate the law, they could have encouraged further political dialogue and possibly offered a road map toward constitutional legislation. The Court did not choose this path and instead struck down the statute without offering encouragement, let alone guidance, for any political response.

Was the road mapping strategy appropriate in Morales and should it have been employed in Dickerson? The answer depends on, among other things, the ability of less aggressive judicial techniques to encourage political responses, the Court's past experience with the road mapping strategy, and the balance of arguments for and against constitutional road maps both in the abstract and in particular cases. The goal of this Article, then, is to explore the concepts of interbranch dialogue and judge-made road maps in light of the Supreme Court's opinions in Morales and Dickerson. Part I details the background of Chicago's gang-loitering ordinance, the noteworthy aspects of Morales, the law's reenactment pursuant to the O'Connor road map, and the likely court challenges to the new ordinance. Part II describes the Court's seminal decision on custodial interrogation, Congress' attempt to abrogate Miranda by statute, the intervening three decades of relative desuetude, the invalidation of the federal confession law in Dickerson, and the improbability of congressional reenactment in its wake. Part III considers leading dialogic theories, their limited application to the criminal process, and the prospects of road mapping as an alternative judicial technique. Finally, Part IV presents the likely arguments for and against constitutional road maps and offers a framework for analyzing the propriety of this judicial strategy in specific disputes. This Part then applies the framework to Supreme Court cases and, in particular, Morales and Dickerson.


    The history of vagrancy-type laws(17) is long and complex, dating back to the decline of feudalism and the economic devastation that accompanied the Black Plague.(18) As a surrogate for serfdom, vagrancy tied workers to their jobs by criminalizing both able-bodied idleness and migration for higher wages,(19) thereby buttressing a European caste system against the threat of class instability and social disorder.(20) The concept of vagrancy was carried over to the British colonies and remained a tool of government after the American Revolution.(21) Although primarily aimed at vagabonds,(22) vagrancy-type laws were also used to harass prostitutes and amblers and to arrest suspicious characters without proof of crime.(23) Vagrancy was part of the "Black Codes" as well, offering the antebellum South another means of racial subjugation in the absence of slavery.(24)

    Scholars and activists of the mid-twentieth century challenged the continued validity of vagrancy-type laws under modern notions of due process.(25) The Supreme Court eventually agreed that the Constitution does not allow unduly vague statutes used to sweep the streets of undesirables or detain suspicious individuals.(26) It was also aware that vagrancy weighed heavily on minority communities and served as a blunt instrument against civil rights activists.(27) Over two decades, the Court struck down pure vagrancy and loitering laws,(28) anticongregation bans,(29) and statutes requiring, on demand, proof of identification and a valid purpose.(30)

    Against this background, the entire Morales affair can be seen as a series of interactions between Chicago's local government and the judiciary on the fitness of specialized loitering laws. This section describes the initial three rounds of this exchange--ordinance enactment, adjudication, and reenactment--as well as the possible hurdles facing the new law in the next round of adjudication.


      Like most metropolitan cities, Chicago has a gang problem. Many of its urban neighborhoods are dominated by street gangs and their tactics--staking out turf, selling drugs, and commanding authority through violence. Even stalwarts of the city are intimidated by the hostile environment created by gangland activity, while law-abiding citizens become prisoners in their own homes.(31) More police officers on the streets--as well as employment opportunities, job training, and community outreach programs for at-risk youth--would obviously be a move in the right direction, but the electorate and its chosen officials provided insufficient resources toward these ends.(32)

      It is unsurprising, then, that Chicago...

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