Contingent constitutionalism: state and local criminal laws and the applicability of federal constitutional rights.

AuthorLogan, Wayne A.

ABSTRACT

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation's mythic sense of shared constitutional commitment.

TABLE OF CONTENTS INTRODUCTION I. CRIMINAL LAW AND CONSTITUTIONAL VARIABILITY A. Fourth Amendment B. Sixth Amendment II. INSTITUTIONAL DESIGN A. Benefits B. Detriments III. NEW UNDERSTANDINGS A. The Myth of Rights Nationalism B. The Nexus Between Substantive Laws and Rights C. Legal Spatiality D. Incorporation's Legacy CONCLUSION INTRODUCTION

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. As John Jay observed in The Federalist Papers, "we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, protection." (1) The sense was first given structural effect with the Constitution's Supremacy Clause (2) and later with the Fourteenth Amendment, which served as a fulcrum to extend the U.S. Bill of Rights to the nation as a whole. (3) As a consequence, federal constitutional rights today serve as a "floor" for the nation's political subunits, which, although permitted to provide their residents more in the way of rights, (4) can provide nothing less. (5)

Over the years this sensibility has been fortified by frequent denunciations of the perceived perils of constitutional disuniformity, especially as a result of nonfederal influence. Echoing Madison's view that the "mutability" of state laws represented a "serious evil," (6) the Supreme Court in particular has lamented the specter of citizens being subject to "arbitrarily variable protection." (7) Permitting federal rights to depend on state laws would allow protections to "turn upon ... trivialities," (8) resulting in rights "'vary[ing] from place to place and from time to time.'" (9) The upshot, as Justice Scalia recently asserted, would be to "change the uniform 'law of the land' into a crazy quilt." (10)

In reality, however, a crazy quilt does indeed exist. Although federal constitutional law nominally serves as the nation's connecting sinew, its application, as this Article makes clear, hinges on state and local legal norms, which are highly variable and create a functionally irregular rights regime. For example, police authority to search and seize individuals, regulated by the Fourth Amendment, hinges on state and local decisions to criminalize particular behaviors, which themselves can be variously defined. Consequently, one's Fourth Amendment freedom from search and seizure in California differs from that enjoyed in Florida, Texas, Maine, and the Dakotas. It also differs within states themselves, as a result of the significant criminal lawmaking authority of local governments.

The state of affairs stems from two central features of the nation's governing structure. The first is federalism, the decentralizing effect of which preserves the authority of national political subunits to enact and enforce laws, especially relative to police power. (11) As the Court stated last Term in Danforth v. Minnesota, "[n]onuniformity is ... an unavoidable reality in a federalist system." (12) There exists a "fundamental interest" in preserving this subnational authority, the 7-2 majority insisted, that cannot be constrained by "any general, undefined federal interest in uniformity." (13)

The second catalyst is incorporation doctrine, which despite seeking the nationalization of the Bill of Rights in lieu of the historically variable state-based rights regime, has created a variable rights regime of its own. Federal rights apply to the nation as a whole, in substance, but their actual application depends on triggering conditions contained in state and local criminal laws. As a result of incorporation, such laws have come to serve as a legal endoskeleton of the federal rights regime, infusing the nation's constitutional order with significant variability.

This Article examines how state and local criminal laws affect federal constitutional criminal procedure rights, a domain where life and liberty are most seriously imperiled. (14) The discussion begins with a survey of how contingency plays out with respect to several core criminal procedure protections: the Fourth Amendment protection against unreasonable searches and seizures and Sixth Amendment rights to appointed counsel, freedom from police questioning, and trial by jury. Although federalism and incorporation have long defined American governance from a structural perspective, their real world impact on the actual distribution of federal constitutional rights has gone unaddressed. (15) Part I remedies this oversight and highlights the critically important distributive consequences of the subnational normative variation that underlies the nation's constitutional order.

Part II examines the phenomenon from an institutional design perspective. Today, it is recognized that state, local, and federal governments significantly influence one another. Just as the nation is no longer understood to operate under a strictly dualist governance regime, with the respective governments hermetically separated from one another in their functions, (16) it is well known that states affect the substantive shape of federal constitutional law. State preferences, for instance, are regularly considered by the federal judiciary in determining federal constitutional norms, ranging from whether there exists a right to engage in specific conduct under the Fourteenth Amendment, (17) to six-versus twelve-member jury composition in noncapital cases under the Sixth Amendment. (18) Federal courts also regularly lend constitutional credence to state preferences in assessing whether a particular application of the death penalty satisfies Eighth Amendment "evolving standards of decency." (19) Finally, federal constitutional outcomes can depend on discrete community norms, such as those of tribal reservations and military bases, and, relative to obscenity, local standards of decency. (20)

Such instances, however, differ in important ways from the phenomenon considered here. Most fundamentally, contingent constitutionalism does not concern the substantive content of federal constitutional norms, but rather whether the norms themselves are actually triggered. The phenomenon thus operates organically as a matter of course, in "Red" and "Blue" and small and large jurisdictions alike, (21) directly affecting the scope of constitutional protections available to the nation's denizens. Moreover, rather than reflecting headcounts of aggregated preferences of subnational political units, contingent constitutionalism reflects--and instantiates--the actual individualized normative preferences of such units. As a result, state and local preferences, rather than creating constitutional norms from the top down, drive the application of federally recognized norms from the bottom up.

This design outcome has both benefits and detriments. Perhaps the most significant benefit is that state and local governments are assured a voice in the rights regime that the federal government superimposes upon them. Their normative preferences, embodied in their criminal laws, are directly reflected in the federal rights that their inhabitants are accorded. This symmetry, however, gives rise to a variety of difficulties. Most critically, tying federal rights to the majoritarian democratic preferences of jurisdictions in which individuals are physically located renders such rights captive to state and local political prerogative. Moreover, the very process of making federal rights contingent on state and local political borders, not national citizen status, negatively affects an array of other important values, including the nation's shared sense of constitutional commitment and the premise of rights equality associated with it.

Part III examines the several ways in which recognition of contingent constitutionalism casts in new light current and traditional understandings of the nation's constitutional order. Chief among these is that rights nationalism is a myth, one that ironically itself has been subverted by the very process of nationalization intended to temper the variability of subnational influence. Laying this myth to rest, despite risking loss of a measure of the nation's collective identity, has a variety of potential epistemic benefits. Members of the public and political

leaders alike will hopefully gain greater awareness of the nexus between state and local substantive criminal laws and federal rights, holding promise for an enhanced (and long overdue) deliberateness in criminal law-making policy. Recognition of the contingent quality of federal rights also underscores the enduring importance of physical space to the application of legal norms. Despite sustained efforts at nationalization, federal rights remain highly sensitized to geography; their availability depends not on physical location on U.S. soil, but rather the substantive criminal law preferences of state and local governments.

Finally, recognition of contingency offers an important opportunity to reexamine the legacy of incorporation doctrine. For years, the process of incorporation inspired sharp judicial disagreement, with a prime concern centering on whether state law norms should figure in the delineation of federal constitutional...

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