Criminal law scholars have pined for a substantive constitutional criminal law ever since Henry Hart and Herbert Packer first embraced the notion in the late 1950s and early 1960s.(1) To this day, scholars continue to search for a theory that gives content to, in Hart's words, "the Unmistakable indications that the Constitution means something definite and something serious when it speaks of `crime.'"(2) To their dismay, the Supreme Court has -- with two exceptions -- seemingly resisted the notion.
The two exceptions are familiar. First came the 1957 case of Lambert v. California,(3) in which the Court came as close as it ever has to constitutionalizing a mens rea requirement as fundamental to the just imposition of a criminal sanction. Lambert was followed in 1962 by Robinson v. California,(4) in which the Court came as close as it ever has to constitutionalizing criminal law's other Latin half, the element of actus reus. Both cases were certifiable breakthroughs that found previously unrecognized content in the Due Process Clause and the Eighth Amendment, respectively, to limit the power of American legislatures to define criminal laws.(5) Both decisions were tantalizzing symbols as well. They held out hope for a vibrant relationship between the Constitution and the criminal law, one that might develop new principles to help bring about a more humane, moral, and altogether more sound substantive penal law.
Yet what followed from Lambert and Robinson, the received wisdom holds, is a story of unfulfilled potential, the unexciting tale of an exciting substantive constitutional criminal law that never came to be. The curse that Justice Frankfurter cast upon the majority in his dissent in Lambert appears to have stuck, for the case indeed "turn[ed] out to be an isolated deviation from the strong current of precedents -- a derelict on the waters of the law."(6) Robinson, meanwhile, was consigned to a fate only slightly less forlorn, relegated to the outermost fringe of the criminal law by the narrow reading placed upon it six years later by the Court in Powell v. Texas.(7) Nor has a substantive constitutional criminal law sprung, as some have hoped, from robust interpretations of the presumption of innocence and the requirement that guilt be established by proof beyond a reasonable doubt.(8) The Court stiffened its back toward such interpretations in Patterson v. New York,(9) and its posture has shown no real signs of relaxation since. All in all, four decades have passed since Henry Hart lamented the Supreme Court's failure to forge a relationship between the Constitution and substantive criminal law,(10) and not much seems to have changed. As an heir to Hart's frustration recently put it, "[t]here is no real substantive due process aimed specifically at criminal law."(11)
That is the accepted story line anyway, the account to which law professors invariably subscribe and then pass on to succeeding classes of aspiring lawyers. It also happens to be a significantly incomplete account of our Constitution produced by a skewed set of expectations. As Part I of this article demonstrates, we are inclined to see no meaningful relationship between the Constitution and substantive criminal law because we expect the relationship to manifest itself only in the trappings of substance, in rights-based restraints on the criminal sanction that are grounded in some satisfactory substantive theory of crime, punishment, and individual liberty. That is our expectation, whether or not we are consciously aware of it, because that is exactly what forty years of legal scholarship devoted to the subject has taught us to expect. Ever since Henry Hart touched off the discussion, efforts to relate the Constitution and substantive criminal law have concentrated almost exclusively on constructing a theory of substantive justice, substantive rights, and substantive restraints -- in short, on a substantive constitutional criminal law.
Starkly absent form the academic discussion to date is a theory of process -- one that concentrates on the proper constitutional roles of judges and legislators and prosecutors and jurors in criminal law choices, on the relative strengths and weaknesses of the institutional players involved, on the function of political safeguards and institutional discretionary mechanisms, on the significance of federalism, and on the countermajoritarian difficulties attending judicial review under the capacious concept of due process. Scholars bent on substantive theorizing have ignored, sidestepped, or glossed over these process concerns, explained them away, or (if really pressed) simply tabled them. As we see in Part II, our understanding of constitutional practice suffers as a consequence. By refusing to squarely confront questions of process, we obscure the fact that process considerations have been shaping the Supreme Court's jurisprudence at the intersection of the Constitution and substantive criminal law for at least seventy-five years.
Contrary to the conventional account, the Constitution and substantive criminal law in fact are engaged in a serious, long-running relationship that is amply manifested in dozens of Supreme Court opinions, ranging from Lambert and Robinson to the burden of proof and presumption cases, the vagueness decisions, and the Eighth Amendment proportionality and capital punishment cases. It is a coherent relationship grounded in process, and it is high time we take account of it.
The Ascension of Substantive Constitutional Criminal Law
The Origins of Substantive Constitutional Criminal Law Theory: The Academic Assault on Strict Liability
Few American law students graduate these days without some exposure to the vigorous attack on strict liability crimes waged by Henry Hart and the criminal law cognoscenti in the 1950s and 1960s. Professors know that one sure-fire way to impress upon students the central place that mens rea holds in the structure of the criminal law is to draw their attention to a world without it -- a world that imposes the criminal sanction without an individualized determination of the defendant's moral blameworthiness. One or two hypotheticals about an upstanding corporate executive(12) or bank director(13) tangled in the net of a strict liability crime usually sparks the desired discussion, and by the end of the hour, the classic critique of strict liability that informed the American Law Institute's work on the Model Penal Code(14) and that Hart authoritatively propounded in his influential The Aims of the Criminal Law(15) echoes off the classroom walls.
Today's students generally hit on all the salient points of the traditional argument, but one thing always seems to be missing. The idea that the criminal justice system might commit a few well-heeled elites to some undeserved jail time just does not send law students of the 1990s into the same high dudgeon that Hart and his contemporaries mustered. Perhaps it is a case of underdeveloped moral sensibilities, complicated by a propensity to discount injustices when they befall the socially fortunate, but I do not believe it is as simple as that. The hypotheticals, and the case against strict liability itself, appear to have lost a good bit of their urgency. Today, few people place the existence of strict liability high on the list of genuinely pressing problems facing the criminal law, whether as a source of particular injustice to individual defendants,(16) as an incentive to excessive criminalization in the name of social control,(17) or as a force that erodes societal respect for the criminal sanction.(18) Society seems to have its appetite for strict liability under control,(19) while new and different problems challenge the criminal law as it approaches the millennium. But for Hart and the generation that witnessed the rise of totalitarianism abroad and felt its reverberations here at home(20) legislative experimentation with strict liability presented very real concerns that it might escalate into a full-blown habit with tragic consequences. Society's capacity for generating temptations to employ strict liability "just this once" against the social danger of the month seemed limitless,(21) while the affairs of the day did not inspire confidence that the "legislature's sense of justice"(22) would know when to say "no" to the passionate urges of the moment. For Hart and his contemporaries, the need to hold the line against strict liability(23) assumed a political and moral imperative to save the people from themselves and to save the criminal law from a rampant utilitarianism unchecked by the limiting principle of retribution.
But if anxiety over strict liability is a thing of the past, why these reflections on it now? It is because the way we conceive of the Constitution's relation to substantive criminal law has been shaped -- and significantly skewed -- by that anxiety. Henry Hart could not have foreseen that his attack on strict liability might help send two generations' worth of academic thinking about criminal law and the Constitution into a singlemindedness about substance, inattentive to process concerns and to the complexities of institutional roles. But it did. That singlemindedness came to pass, at least in part because Hart himself, the acknowledged standard bearer of the legal process approach, fixated on substance.
Pictures of Perfection: Henry Hart's Substantive Constitutional Criminal Law
Hart started off The Aims of the Criminal Law true enough to his legal process commitments. The criminal law pursues multiple objectives and responds to multiple values, Hart emphasized at the outset, and "none may be thought of as wholly excluding the others."(24) Society's criminal law choices thus demand "multivalued rather than . . . single-valued thinking,"(25) a complex challenge made all the more complicated by the fact that the choices "do not present themselves . . . in an institutional...