The Dare Doctrine

With Justices Alito and Roberts now comfortably on the Supreme Court, state legislatures are getting busy. South Dakota has just passed a law making it a crime to perform any abortion, except to save the life of the pregnant woman. The law has no rape or incest exception and no exception for the health the mother.  This bill is uncontroversially unconstitutional. The aspiration of the South Dakota legislators must be that when they swore to uphold the Constitution of the United States (as well as the South Dakota constitution) they were not committing perjury not because the Supreme Court got it wrong 33 years ago when it decided Roe v. Wade, and wrong each time since 1973 when it has reaffirmed a woman’s right to terminate a pregnancy when the pregnancy threatens to harm her body (most recently, three months ago, in November, in Ayotte v. Planned Parenthood of Northern New England, authored by Justice O’Connor). 

I wonder if the South Dakota legislation isn’t also unconstitutional because it calls the Supreme Court into a game of chicken.  “We know you, Supreme Court of the United States, have explicitly held otherwise, but we are right and you are wrong.  We dare you to make us take it back.” (This might be a new constitutional doctrine, birthed here, “the dare doctrine of unconstitutionality.”)  But really, isn’t there a constitutional problem when state legislatures openly defy the Supreme Court of the United States in an effort to egg on its newest members to reverse entrenched precedent? Hasn’t the Supreme Court said as much, and recently, when it chided the New Hampshire legislature for passing a clearly overbroad law (one, interestingly enough, that did not provide for a health exception in the case of a minor seeking an abortion), because New Hampshire was hoping (expecting?) that the Supreme Court would whittle it down to a constitutional size for them?  See Ayotte v. Planned Parenthood of Northern New England (“we are wary of legislatures who would rely on our intervention because it would certainly be dangerous to let legislatures set a net large enough to cast all possible offenders and leave it to the courts to step inside”).

You might say this is what the laboratories of the states are for – to encourage and push change on a national level.  But this is not a case of creative litigation, challenging the doctrine around its edges, or making room in the legal landscape for new and improved technology that changes how we live as a society.  Here, the states are openly defying clearly established constitutional law, depriving its citizens (citizens of both the state and the federation) of constitutionally protected rights. If a state can violate the supreme law of our land with impunity – daring the Court that defines that law to a challenge much like when a child tests her parents by asking “did you mean it when you said 'no'” – what is next? What prevents a state from ever passing a law contrary to clearly established Supreme Court precedent because it hopes (expects) that the Court will someday soon change its mind?

Comments

[Tim of Angle]

Well, the point is that it's NOT "clearly established constitutional law", it's merely clearly established recent constitutional interpretation, which has no explicit basis in the Constitution, and implicit support only by perching on top of similar nebulous rationalizations. Different things entirely. The state is saying "We think that you pulled this so-called right out of your ass, not the Constitution, and we're going to give you a chance to fix what you broke." It's just that simple.

What is next? Well, maybe the Supreme Court will stick to the Constitution as it is, rather than rewriting it the way they wished it would be.

That's just a guess, of course.

[JSilbey]

I am not sure how one "sticks to the Constitution as it is" rather than "rewriting it" as every act of interpretation inevitably involves a rewriting. I wonder if by your reading, Griswold, Brown, West Coast Hotel -- or even Marbury -- were all "rewritings" as well. And if so, the Constitution is thin indeed.
Sincerely, I have always been awed at people who claim to be able to interpret and apply the Constitution without rewriting its reach or promise (or at least without importing into the interprtation part of today's world). Like even great science fiction, our interpretations come from our own minds, our own circumstances -- inevitably -- so that we cannot help but remake and make anew the law to which we claim allegiance.

[Marty Lederman]

Jessica: Is the question different at the state level than at the federal? After all, when the Court declared certain New Deal programs invalid, FDR and Congress just kept reenacting them (sometimes in slightly different dress) until the Court said "uncle." More recently, the flag-burning statute invalidated in Eichman and the federal so-called "partial-birth" abortion ban were, when enacted, clearly unconstitutional under governing doctrine, and were enacted precisely in order to have the Court reconsider. So was 18 USC 3501, enacted in the teeth of Miranda, and designed *expressly* to provide for the return of the "totality of the circumstances" test if the Court were ever to overrule Miranda. As Eichman and Dickerson (and to similar effect City of Boerne) suggest, it's not often a very *wise* move to antagonize the Court. But as the New Deal experience, and Agostini, indicate, it's not necessarily futile, either.

More to the point, I don't quite see why it's in any way an *illegitimate* tactic, even if the South Dakota bill is odious. Indeed, if *no* legislature ever pushed up against governing doctrine, there would rarely be an occasion for an overruling of precedent in cases where the Court has ruled that some state action is unconstitutional.

[Donald McConnell]

Would you have objected to state legislatures defying the high courts opinions in Dred Scott or Korematsu? I think legislators can reject the court's opinion if they have a higher law (her a right to life on the part of the unborn child) to support their actions.

[Jeffrey Pokorak]

Thank you for this.

To me, the constitutional question of whether Roe was rightly decided (7 to 2) by the Supreme Court as mentioned by the first poster is less interesting than the constitutionality of the South Dakota legislatures actions.

There are (at least) three facts with which everyone agrees:

1) As the federal constitutional law (yes, as interpretted by the body charged wth its interpretation) currently stands, the South Dakota Act violates Roe and Casey;

2) The South Dakota legislature and Governor (recognizing #1) expressly supported the law to test the new bounds of Roe post-Alito confirmation; and

2) The South Dakota legislature only passed the law after an "anonymous donor" offered at least one million dollars to support the state in any legal challenges.

So, why does this not run afoul of Muskrat v. United States (1911) which found no case or controversy in similar circumstances? Remember, in Muskrat, simply, Congress enacted a law and alotted money to pay for a test case to the United States Supreme Court because there were grave doubts about the acts constitutionality. No reaching th emerits, the Supreme Court held that such "test" legislative acts presented no true case or controversy. Is it different if it is the same set up but from a State legislative body?

Also, South Dakota's constituion is somewhat unique. the most recent version (enacted after the equal rights amendment flip flop bu that State in the 70's) specifically states:

Sec. 26. All political power is inherent in the people, and all free government is founded on their authority and is instituted for their equal protection and benefit, and they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper. And the state of South Dakota is an inseparable part of the American Union and the constitution of the United States is the supreme law of the land.

Doesn't that mean that by passing this law (which everyone agrees is currently illegal under the federal constitution) that the legislators have violated their oaths to uphold both the Constitution of the United States AND the South Dakota Constitution?

I will save my questions about independent state action if the law ever reaches a court for later.

[JSilbey]

In response to Marty's post, I grudglingly have to confess to my own formalistic desires. "Pushing up against governing doctrine" with factual scenarios that present wrinkles seems one thing, whereas enacting a law that would have been struck down by the court four months ago when O'Connor sat on it rather than Alito seems to be another thing. But this is then just a matter of degree, and isn't much of legal argument? The phrase "clearly established law" begs the question as the earlier posts say, and (all?) precedent is, perhaps, less worthy of the authority it has been traditionally granted.

So while I agree with the constitutional normative arguments made that it is, of course, not only the Supreme Court who "says what the law is" (it is legislatures, citizens, public officials, corporations...) and thus the meaning of the Constitution must and does change, even drastically, aren't we required in our law-revering ways to appreciate and follow the lead of the Court when it makes efforts to distinguish precedent rather than overrule it. In other words, to make what South Dakota did more legitimate, shouldn't they at least make an effort to distinguish their bill from Roe and Casey, or otherwise explain why violating the Supreme Court's command isn't a violation of their oaths. (Perhaps such efforts at justification lead to more odious statements, such as the infamous Torture Memo, and that is reason enough to stop distinguishing cases and just admit to violating the law and following your own.)

[Steve Lubet]

Whatever you think about the merits, there is certainly nothing new about the idea of a "dare" doctrine.

When Lincoln ran for the senate in 1858, he argued that Congress should ignore the Dred Scott decision. As history has shown, Lincoln was right and the court was wrong.

(I am not trying to compare Dred Scott to Roe v. Wade, as some have done; just pointing out that Lincoln was in favor of daring the court.)

[A Quiet Lawyer]

Hi, Jessica. I doubt that the SD legislators would have any problems squaring the law with their oath.

The legislators swore to uphold the Constitution of the US. The legislators also believe that Roe v. Wade incorrectly interprets the Constitution.

Now, let's suppose the Supreme Court *correctly* interpreted the Constitution in Roe. In that case, the legislators are merely wrong about what the Constitution says. It's not really that different from a legislature passing any other statute that they believe to be constitutional, but that the courts later strike down.

Suppose, on the other hand, that the Supreme Court *incorrectly* interpreted the Constitution in Roe. In that case, the legislators are vindicated.

Either way, though, the legislators didn't violate their oaths.

I should also recall Holmes's assertion that law is nothing more than predictions about how the courts will rule. And let's face it -- on this issue, there's reason to doubt how the Supreme Court will rule. So that, too, would give the SD legislature latitude to pass this law.

[Lawyer Guy]

Jessica,

With respect, I don't buy it at all, and have a hard time believing you'd make the same argument about legislatures testing SCOTUS rulings you dislike.

Ad hominem aside, I'd turn it around and say that the SD legislature has a DUTY to pass that law if they think it's important and constitutional -- which they patently do. They swore an oath after all, and now they are fulfilling that oath.

[pk]

What about Sec. 1983? Any attempt to enforce this law in situations clearly covered by Casey would lead to civil liability.

A more interesting argument would be that the SD legislators themselves violate Sec. 1983 by enacting a law that is clearly unconstitutional. The SD legislators act under the color of state law (the SD Constitution) and their action "cause" a citizen of the United States "to be subjected" to a deprivation of her federal constitutional rights.

Of course, This claim is surely a loser, but interesting nonetheless.

[Thom]

Jessica,

Could you explain how you square your aversion to South Dakota's actions, in testing the "current" Constitutionality of their anti-abortion law, with your belief that: "Like even great science fiction, our interpretations come from our own minds, our own circumstances -- inevitably -- so that we cannot help but remake and make anew the law to which we claim allegiance."

If the answer is merely that your personal preferences are entitled to be remade into the Constitution as if chiseled into stone, than there is no need to respond.

[Thomas]

Thom has it right. Jessica's follow-up comment makes it clear that there are no fixed points in the interpretive process--every interpretation "makes anew" the constitution--and also suggests that inevitably the interpretive process involves "importing into the interpretation part of today's world." All standard stuff, but very hard to square with the notion that a state legislature could ever possibly defy the Supreme Court. The legislature's interpretation, it seems to me, is simply 'making anew' the constitution, and, in this case, bringing into their interpretation 'part of today's world.' Just as the Supreme Court isn't obligated to follow its precedents or any particular understanding of the constitution, so too no legislature would be bound.

I'm surprised to read that you believe Ayotte reaffirmed a constitutional right to abortion (whether limited to particular circumstances or otherwise). I read the decision quite differently (and thus I can understand and explain why those justice who have never found a constitutional right to abortion would vote as they did). Note the introductory phrase to the opinion: "We do not revisit our abortion precedents today..." Without revisiting, how could they possibly reaffirm?

[JSilbey]

In response to above posts, I think it fairly easy to say that the Constitution must be interpreted in order to be applied (and thus is always made "anew" if not ever made entirely new, that is, unrecognizable in its bases and foundational assumptions), and that this does not preclude the belief that there are interpretations that are better than others, even some right and some wrong. What SD is doing is saying the Court got it wrong in Roe and, despite 30 years of precedent supporting Roe, and because there are new justices on the Court, we are challenging the Court to either (1) say it again, Roe is affirmed; or (2) overrule Roe. If SD thinks that (1) is a viable option and (2) a dream, I wonder if SD legislators aren't at least vulnerable to a 1983 action? Sure, legislators can pass laws that defy Supreme Court precedent, just as the Supreme Court can overturn its own. But does this happen very often? I wonder what the empirical statistics are on this and, if they are low, what theories of interpretation and judicial decision making explain it?

To answer Thomas' interesting post about Ayotte: I, too, was intrigued by the unanimous opinion. I read the first line differently, however. By not revisiting the abortion precedents, I understood the Court to say that those cases stand for what they stand for and they are unweakened by today's opinion. I read it this way and not the other way ("Today's opinion doesn't reinforce the earlier opinions"), because (1) the Court's decision cites as precedent Roe's central holding, as modified by Casey; and (2) because the Ayotte case could be seen as weakening earlier precedent were it not for the Court's opening caveat suggesting otherwise.

[JSilbey]

To respond to Steve's graceful post about Lincoln, I do sometimes feel that the dare doctrine has embedded in it the implication that civil war or revolution or constitutional amendment is inevitable.

[Chris Wuestefeld]

There's nothing new under the sun. This kind of thing seems to go on all the time. I'm immediately reminded of McCain-Feingold, which was generally understood to be unconstitutional (including by GWB, iirc, and this was used as a political ploy so that it could be "supported" without fear of abiding by it); and the various iterations of the Communications Decency Act and its evolutions were transparently unconstitutional. Particularly in the case of BCFR, legislators freely acknowledged that the Act was unconstitutional, while voting for it just the same.

[aLs]

This law is going to be struck down. South Dakota should be slapped in the face for this stupid law. It is so clearly unconstitutional that it is insulting to anyone that is being intellectually honest with themselves.

If South Dakota had an ounce of brains they would have passed a law that eroded Roe v. Wade, not one that attempts to blast it out of the water. If Roe v. Wade is going to be reversed, it's going to happen over the course of many rulings that slowly dissolve the protections that it was meant to provide.

[lexrex]

jeffrey, you have your facts wrong about when the south dakota legislature decided to pass the abortion ban. i was there. i was a lobbyist. its passage had nothing to do with an anonymous donor.

also, to your first point that the judiciary is the body charged with interpretation of the constitution, i would add that it, however, is not the only body charged with that duty.

after thomas jefferson pardoned several people convicted for violating a sedition law, he said, “My position [is] that each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question.”

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[Coach Outlet]

Chief Justice Robert's decision for the unanimous Court in in the law school/military recruiting

[Strategies]

An sich eine gute Sache, ich bin mir nur unsicher, ob dies langfristig umsetzbar ist!

[bookofra]

Wahnsinn dass sowas tatsachlich passieren kann :-)

[Lottozahlen heute]

Heftig! So eine Story hätte ich gar nicht gedacht ;)

[Spielautomaten Tricks]

Also ich vermute das ist eh nur eine Mode

[Bookofra Tricks]

Herrlich, jetzt endlich habe ich das Problem kapiert :-)