Inkblots: How the Ninth Amendment and the Privileges or Immunities Clause Protect Unenumerated Constitutional Rights – Note by Kyle Alexander Casazza

From Volume 80, Number 6 (September 2007)

One commentator has rightly noted that “principles of natural justice are summoned to highlight moral requirements of the legal and political order, to defend individual rights against the utilitarian interests of a political majority, or to guide the adjudication of hard cases which fall into textual gaps or open ended clauses of the Constitution.” Despite the presence of these open-ended clauses, our Framers “understood and observed a distinction between ‘natural’ rights and…‘positive’ rights.” The former are comprised of “Lockean notions concerning the ‘unalienable’ rights of the people,” while the latter look to “common, constitutional, and statutory law.”

The Framers’ enumeration of some rights did not distinguish between the two – the Bill of Rights enumerated traditionally natural and positive rights because both are “essential to secure the liberty of the people.” The Ninth Amendment and the Privileges or Immunities Clause can be read to protect distinct classes of unenumerated rights across these two categories. Under such an approach, the Ninth protects unenumerated rights inherent in all persons, while the Privileges or Immunities Clause protects a unique class of unenumerated rights born in both civil government and the Constitution itself.

General attitudes toward the Ninth Amendment are perhaps best exemplified by the statement of then-Judge Robert Bork during his 1987 confirmation hearings, in which he stated that the Ninth Amendment should be viewed as “‘an amendment that says “Congress shall make no” and then there is an inkblot, and you can’t read the rest of it, and that is the only copy you have.’” Interestingly enough, Robert Bork has referred to both the Ninth Amendment and the Privileges or Immunities Clause as inkblots.



Remedies for California’s Death Row Deadlock – Article by Judge Arthur L. Alarcón

From Volume 80, Number 4 (May 2007)

The unconscionable delay in the disposition of appeals and habeas corpus proceedings filed on behalf of California’s death row inmates continues to increase at an alarming rate. It is now almost double the national average. Procedural changes must be made to the manner in which death penalty judgments are reviewed to avoid imprisoning a death penalty inmate for decades before the condemned prisoner’s constitutional claims are finally resolved.

This Article identifies the woeful inefficiencies of the current procedures that have led to inexcusable delays in arriving at just results in death penalty cases and describes how California came to find itself in this untenable condition. It also recommends structural and procedural changes designed to reduce delay and promote fairness. These recommendations include: transferring exclusive jurisdiction over automatic appeals from judgments of death away from the California Supreme Court to the California Courts of Appeal; requiring that capital case state habeas corpus petitions be filed in the trial court with the right to appeal to the California Courts of Appeal, rather than filing the petitions with the Supreme Court in the first instance; providing adequate training and compensation for counsel appointed to represent indigent death row inmates; and providing continuity of counsel for state and federal habeas corpus proceedings. These changes would significantly reduce delay and promote a more just resolution for death penalty inmates and society.



A Political Process Theory of Judicial Review Under the Religion Clauses – Note by Carlton Morse

From Volume 80, Number 4 (May 2007)

Few areas of constitutional law remain more captive to the subjective whims of judicial preference than the First Amendment’s religion clauses. This condition results in part from the Court’s notorious inability to agree on a uniform standard of review under either the Free Exercise or Establishment Clauses. This instability matters because, as Justice Scalia notes, “[w]hat distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” As concerns the religion clauses, a stabilizing principle may be found in political process theory, a set of ideas that, while generally familiar to constitutional theory, have yet to be comprehensively applied to either free exercise or establishment controversies.

Process theory embraces “[t]he notion that courts should exercise judicial review almost exclusively to protect democracy and guarantee the fairness of legal processes.” Conversely, process theory rejects the notion that courts should enforce “substantive” policy preferences that cannot be justified on these “process-oriented” grounds, as they are more properly left to the vicissitudes of the political branches. Borrowing heavily from the literature of civic republicanism, this Note argues that process theory should be broadened to account for the unique contributions of religion to the political process. This Note further argues that, using process theory, courts should interpret the First Amendment’s religion clauses as process-oriented safeguards for the political contributions of religious faith and institutions. Finally, courts should reject a jurisprudence that employs the religion clauses as vehicles for the enforcement of substantive conceptions of free exercise and disestablishment.



The Researcher’s Second Laboratory: Protecting Our Children from Social Surveys in Public Schools in Light of Fields v. Palmdale School District – Note by Jesse Fu

From Volume 80, Number 3 (March 2007)

Vanessa Shetler was shocked to learn what her eight-year-old son went through one seemingly ordinary day in his third-grade class. After coming home from school, Ms. Shetler’s son informed his mother that instead of spending the day learning math and reading, he was asked by the school how frequently he thought about having sex or touching other people’s “private parts.” Had these questions been presented as part of a routine sex and health education program for elementary school students, perhaps Ms. Shetler would not have been so upset. These questions, however, were not a part of such a program. Instead, the school, in collaboration with a mental health counselor, distributed a survey containing numerous sexually charged questions to some of its students. The survey asked students how often they thought about washing themselves because they felt dirty inside or if they ever had “sex feelings” in their bodies, for example. What is more, it asked if they ever thought that they touched their own “private parts” too much and if they ever could not stop thinking about sex.

Ms. Shetler was just one out of many parents who became outraged because of the survey and believed that the questions were “putting poison into kids’ minds” because it discussed sex and other subjects that third graders should not be learning about. The survey was not given solely to third graders, however – first and fifth graders were also asked to answer these same questions. The school claimed that the survey was designed to establish a baseline for measuring trauma in children, for the purpose of ascertaining any impediments to the students’ abilities to absorb material in school. Unpersuaded by the school’s rationale, parents claimed that the survey was inappropriate and, in response, filed suit against the school district.



The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges – Note by Jeff Sklar

From Volume 80, Number 3 (March 2007)

As word of the decision in Hosty v. Carter spread in the summer of 2005, many college journalists were outraged. To them, it was the end of free speech as they knew it. In Hosty, the en banc Seventh Circuit became the first court to apply in a college the framework of the Supreme Court’s Hazelwood case, which for nearly twenty years had given high school administrators wide latitude to restrict the content of student-run newspapers. As a result, many college journalists believed they were powerless against university presidents and deans, who they believed could charge into their newsrooms, lock up their computers, and even stop their presses – all with the blessing of the First Amendment.

In truth, the outrage did not begin with Hosty. It began seventeen years earlier with the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. In Hazelwood, the Supreme Court held that in high schools, where school-sponsored student speech does not occur in a public forum, the school may regulate the content of that speech for reasons that are “reasonably related” to any of a range of “legitimate pedagogical concerns.” Thus, many people believed Hazelwood gave high school administrators near free reign to stop students from participating in one of our nation’s most sacred traditions – a free and independent press. And in Hazelwood, the Supreme Court explicitly left open the possibility that the case’s analytical framework might be applied to student publications in colleges too. But until June 2005, no court had dared to do so. Hosty was the first.



An Unworkable Rule of Law: The ADA, Education, and Sovereign Immunity; An Argument for Overruling Seminole Tribe of Florida v. Florida Consistent with Stare Decisis – Note by Christopher Cowan

From Volume 80, Number 2 (January 2007)

On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (“ADA”), signed into law by the former President Bush. In the proclamation, President Bush “call[ed] on all Americans…to fulfill the promise of the ADA [and] to give all people the opportunity to live with dignity, work productively, and achieve their dreams.” At the time of its signing there were more than forty-three million disabled persons in the United States; this number has grown to more than forty-nine million. The purpose of the ADA was to eliminate discrimination against this growing population in a number of areas by providing a “legal recourse to redress such discrimination.”

While the overall success of the ADA is debatable, it is clear that private enforcement of the ADA has been under attack for the last ten years – at least when the defendant is a sovereign state. Since the controversial Seminole Tribe of Florida v. Florida decision in 1996 – holding that Congress can abrogate a state’s sovereign immunity only through a valid exercise of Section 5 of the Fourteenth Amendment – the survival of a private cause of action against a state entity under the ADA has been questionable. In the last five years, the Court has attempted to provide an answer. In Board of Trustees of the University of Alabama v. Garrett, the Court held that Title I of the ADA, which prohibits disability discrimination in the context of employment, was not a valid exercise of Section 5 and therefore could not abrogate state immunity. Although the Garrett decision was limited to Title I, many of the lower courts assumed that the sovereign immunity bar would extend to Title II, which regulates access to public services and programs. Then, in Tennessee v. Lane, the Court held that Title II’s application to the fundamental right of access to the courts was a valid exercise of Section 5, and the immunity bar was tentatively lifted.



Laughter at the Court: The Supreme Court as a Source of Humor – Article by Laura Krugman Ray

From Volume 79, Number 6 (September 2006)

The United States Supreme Court, with its black-robed justices and its marble columns, has long been regarded as the most formal and opaque branch of the federal government. While the president and the members of Congress have deliberately wooed the public with election campaigns that attempt to humanize the candidate, the justices have preferred to maintain the Court’s traditional aura of remote dignity by steadfastly refusing to televise its proceedings. Even the current willingness of some justices to present themselves directly to the public through extrajudicial writings and television interviews has not yet erased the public image of the Court as a solemn institution. When a legal scholar recently tracked the incidence of humorous exchanges during the Court’s oral arguments, the New York Times considered the idea of laughter at the Court worthy of a front page article. Yet even if there have been few occasions for laughter in the courtroom, the Court itself has in the past half century become a consistent source of humor in the pages of another, less solemn American institution, The New Yorker magazine. The emergence of the Court as a reliable subject for New Yorker cartoons suggests two related developments: the growing public awareness of the Court’s role in American life and the parallel willingness of the public to appreciate – and laugh at – the impact of the Court’s jurisprudence on its own domestic life.



Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence – Article by A. Benjamin Spencer

From Volume 79, Number 5 (July 2006)

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant’s conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement in State Farm Mutual Automobile Insurance Company v. Campbell, the Court indicated that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Unfortunately, neither the “guideposts” nor the single-digit multiple rule have any basis in the law of due process and represent nothing more than the imposition of the Court’s own standards for punishment in place of those of the states.

This Article reveals the defectiveness of this jurisprudence by exposing the absence of precedential foundation for the Court’s current view. More significantly, this Article demonstrates that the Court’s interpretation of the Due Process Clause is at odds with important rules of constitutional construction, mainly those supplied by the Ninth and Tenth Amendments, which protect unenumerated rights and limit the national government to exercising delegated powers, respectively. Together, these amendments prohibit expansive interpretations of the Constitution that disparage rights retained by the people and that arrogate to the national government powers that neither the states nor the people ever relinquished. The Court’s interpretation of the Due Process Clause with respect to punitive damages transgresses both of these limitations. This Article suggests that a proper understanding of due process reveals that the doctrine requires only that punitive awards be reserved for wrongdoing beyond simple negligence, jurors be instructed that any punitive award they impose must be designed to further states’ legitimate interest in punishment of instate conduct and deterrence, and judicial review of the awards be available to check adherence to these requirements. Beyond that, the Due Process Clause fails to require punitive damages awards be constrained to a particular level.



Legislative Arrogance and Constitutional Accountability – Article by Caitlin E. Borgmann

From Volume 79, Number 4 (May 2006)

A movement is quietly gaining traction – state legislatures are enacting social policy through laws specially designed to evade constitutional review by the courts. These laws give individuals a private right of action to seek massive damages against those who engage in constitutionally protected but controversial conduct. The coercive nature of potential, massive civil liability has the same effect as an outright ban on constitutionally protected acts. But federal appellate courts have found legal challenges to these laws barred by the doctrines of Article III standing and state sovereign immunity. The resulting legislative arrogation of power is a dangerous trend, forewarned of by the Framers of the Constitution. It contravenes federal supremacy and upsets the balance of power among coordinate branches of government. This Article argues that the courts can address this new phenomenon based on time-honored constitutional principles and a long-overdue reevaluation of the doctrine of Ex parte Young.



Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255 – Note by Julie Austin

From Volume 79, Number 4 (May 2006)

Historically, habeas corpus relief has provided a remedy in extraordinary cases for prisoners incarcerated in violation of the U.S. Constitution. Habeas relief brings to mind gross injustices – prisoners serving sentences for crimes they did not commit or prisoners who are incarcerated because they were not represented by counsel at their trials. Yet under current law, prisoners serving enhanced federal sentences may reduce their sentences without necessarily proving that any constitutional violation or error has occurred.