The strange bedfellows presented so far in the series have been
pairings of cases that reveal something interesting or unexpected about
the substance of constitutional law. But as we all know, courses in
Constitutional Law are required at most schools only in part for their
substance. Since the substance is subject to (comparatively rapid)
change, much of the value in the course is in how it can teach the set
of legal skills necessary when dealing with a controlling text that
where “majestic generalities” predominate. The next few posts looks at
cases that could be taught together (or at the very least, linked
together orally if not taught the same day) for their similarities of
legal reasoning.
A recurring issue in any young area of law—and US Constitutional Law
is young when compared to the common law topics like contracts and
property—is how to reason from sparse precedents. Specifically, in an
area with only a handful of decisions on point, do those precedents
represent a ceiling or a floor?
The question is presented unusually cleanly in Caperton v. Massey Coal
(2012), which asked whether an elected judge violated procedural due
process by failing to recuse himself from a case where one of the
litigants had spent millions on advertising to put that judge into
office. Two earlier SCOTUS decisions involved the due process
ramifications of judicial recusal. Tumey v. Ohio (1927) found
that it violated due process for a judge sitting without a jury to
decide cases under a system where his compensation would be greater if
he convicted than if he acquitted. (As it happens, this structure was
also part of the federal Fugitive Slave Act of 1850, but the due process
implications were not explored at the time.) In re Murchison
(1955) found that a due process violation where a judge tried a criminal
contempt charge that occurred before him during an atypical grand jury
proceeding. For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well. For the Caperton
dissenters, the two cases were a ceiling: “Until today,” wrote Chief
Justice Roberts, “we have recognized exactly two situations in which the
Federal Due Process Clause requires disqualification of a judge.”
In Ingraham v. Wright (1978), the plaintiff secondary school
students argued that their public school district’s use of corporal
punishment amounted to cruel and unusual punishment. All of the
previous SCOTUS decisions decided under the Cruel and Unusual Punishment
Clause involved criminal defendants objecting to their sentences or the
methods by which the sentences were carried out. For the majority, the
precedents represented a ceiling, indicating that the Clause would
protect no more than the criminal defendant, and hence offer nothing to a
public school student. For the dissenters, the precedents were a
floor: they meant that, at least, cruel and unusual punishments could
not be inflicted on criminal defendants, but perhaps others were
protected against them as well. (Ingraham is an excellent
showcase for a number of other methods of interpretation, including
disagreements over the meaning of text, history, consequences, values,
and constitutional structure; for this reason I have had good success
starting my courses with it, and now my casebook.)
Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989).
Once you have sensitized students to how different judges can
approach precedential ceilings and floors, you can then see a very
similar contrast of interpretation with regard to the text of the
Constitution itself, particularly with regard to enforcement of
unenumerated principles. If the two precedents from Caperton
are a ceiling, limited to their facts, then perhaps Bill of Rights
should be read the same way: as precise enumerations of narrow
principles without Griswold-style penumbras that form a
subterranean rational continuum. And the same could be said for the
various Art. I, §10 limitations on state commerce regulation: they mean
only what they say (no duties of tonnage, no non-essential imposts on
imports or exports), and do not contribute to a larger rule against
state laws that impose burdens on interstate commerce in unenumerated
ways.
Sure enough, one often sees exactly this combination: Justice Scalia
opposes broad applications of the dormant commerce clause doctrine and
substantive due process, and frequently reads precedents narrowly as
well. The reverse combination is usually true for Justice Breyer.
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