an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The essays in The Constitution in 2020 ask not only what the Constitution can do for us, but what we can do for the Constitution. In other words, the book offers both visions of what constitutional law should be and concrete suggestions for how to make it so. Optimism—pragmatic, cautious, yet still resolute—characterizes discussions of equal protection, social and economic rights, free speech, and religious liberty. The book says very little, however, about the most litigated provisions of the Bill of Rights, the provisions to which individuals facing an exercise of state power most often appeal. I refer to constitutional criminal procedure, and I wonder: Is the criminal justice system no place for constitutional optimism? Is criminal justice a realm where we can do little with the Constitution, and where it can do little for us?
American policing and punishment practices are characterized by considerable racial and economic disparities. And at least at a certain level of abstraction, equality is a powerful constitutional norm. So we might look for constitutional levers to address inequality in the criminal justice system. Tracey Meares takes this approach in “The Progressive Past,” the sole essay in The Constitution in 2020 directly focused on criminal justice. As Meares notes, in the 1960s and 1970s, courts applied constitutional protections for criminal defendants in attempts to address widespread racial discrimination. But this project was never fully successful, and at any rate, in more recent decades courts have read the Bill of Rights to provide much narrower protections to defendants and thus to permit a much wider range of state practices. Toward a new (or revived) effort to address inequality, Meares suggests that we think of constitutional criminal procedure not merely in terms of protections for individual defendants, but as a source of public legitimacy for the criminal law. Her “public-regarding approach” would identify disparities that undermine public perceptions of fairness and legitimacy, such as race-based juror selection or race-based defendant selection (selective prosecutions), and it would use constitutional levers to address those disparities.
There is much to be gained by invoking antidiscrimination norms to reform American penal practices. Of course, we will still argue about what constitutes equality. As noted in Robin West’s essay in the 2020 volume, the legal conception of equality emphasizes treating like cases alike. In criminal justice (and elsewhere), there is considerable disagreement about how to classify “like cases.” For example, many would argue that racial disparities in American prison populations simply reflect patterns of offending. We impose like punishments on like offenders, the argument goes, and it’s unfortunate but true that racial minorities more often commit serious crimes. There are ways to undermine this claim, including Meares’s proposed attention to selective prosecutions. But even if we could agree on what equality means, and even as we pursue more egalitarian practices, it is not clear that equality is enough. I think observers of America’s sprawling penal system must ask whether inequality is the only constitutionally suspect feature of that system.
Assume, far-fetched as the notion may be, that our criminal laws and enforcement practices were purged of racial discrimination. Assume, also, that the expansive conception of the state’s penal power persisted. Legislatures still possessed the same broad discretion to criminalize conduct and to prescribe lengthy prison sentences that they have today; police officers still possessed the same broad discretion to search and seize persons in the investigative process; and prison officials still possessed the same broad discretion to use force within the prison to maintain order and discipline. In this imagined world, none of this discretion would be exercised in a racially discriminatory manner, but it would still be used to police and punish aggressively. In this imagined world, the criminal justice practices currently directed disproportionately at non-whites would be experienced by everyone. Would the Constitution be satisfied?
The question is whether and how the Constitution imposes any limitations on the state’s use of force independent of requirements to use force in a nondiscriminatory manner. Do constitutional provisions such as the Fourth and Eighth Amendments restrict state power in ways not addressed by the Equal Protection Clause? Earlier this year I wrote about the use of the term “violence specialists” to describe agents of the state authorized to use physical force for public ends. The authors who use this term assume that every society has its violence specialists, but constitutional democracies are distinctive in that the violence specialists are subordinated to the rule of law. But which law? What I’d like to figure out—before 2020, I hope—is whether the Fourth and Eighth Amendments could provide more meaningful restrictions on state officials’ decisions to use force to police or punish.