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
Does the Bill of Rights Apply Equally to the States?
One important question raised by McDonald v. Chicago is whether a right incorporated to apply against the states limits federal, state, and local governments in precisely the same way. Justice Alito’s majority opinion, quoting Malloy v. Hogan, says that the protections in the Bill of Rights “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” In other words, any restriction on a right, no matter what government institution adopts it, should be treated the same by the courts. Fred Schauer calls this “institutional blindness”: courts ignore the identity of the governmental actor behind a law.
In fact, however, the courts often do treat laws differently depending on who’s behind the law—or at least it appears that way. In an empirical study of free speech cases, I found that federal courts were far more likely to uphold a speech restriction adopted by the federal government than a state or local speech law. Fifty-six percent of federal laws survived, while state laws survived only 24% of the time and local laws were almost invariably struck down (3% survival rate). Rarely do these different levels of government pass exactly the same law, so comparisons are difficult. But even controlling for the type of case—e.g., whether it was a campaign finance restriction, a restriction on public forums—the courts were still more likely to uphold a federal law relative to a state or local law. A study of affirmative action cases found somewhat similar results. This tailoring phenomenon also occurs on a horizontal level, discriminating between state legislatures and, say, state universities (Grutter v. Bollinger) and state prisons (Turner v. Safley).
There are good structural reasons for considering the identity of the government actor behind a law. The “government” is not a monolithic entity; it’s a wide web of institutionally distinct entities, each with a different democratic pedigree. Madison himself recognized that state and local governments were more likely to burden rights than the federal government. “The smaller the society, the fewer probably will be the distinct parties and interests composing it” and the more easily “local prejudices and schemes of injustice” will be enacted. Modern public choice theory agrees: owing to the large number and strength of interest groups represented at the federal level, we should expect that federal laws will be, as Jonathan Macey calls it, a “higher quality product” than state or local laws.
We might also suspect that federal courts in particular will show relative deference to federal laws. There is a growing body of literature in political science and law showing that judges exercise judicial review strategically. The “separation-of-powers” game means that federal judges will want to minimize conflict with Congress to protect the judiciary from backlash. State and local governments can’t discipline the federal courts as easily as Congress can.
None of this is to suggest that the Court was wrong about the Second Amendment. But we should recognize that all governmental entities are not the same and that the differences between them might argue for distinct treatment by courts.