Posted by: captainfalcon | July 6, 2010

The Case of the Scottish Precedents

[Updated]

This is a generally excellent post about McDonald v. Chicago. I think Balkin is correct about what motivates Alito’s doctrinal cheats, correct that McDonald is anachronistic, and correct that it distinguishes the Second Amendment from rights to grand and civil juries in an ad hoc way. But I have a quibble about another of the doctrinal cheats Balkin claims to identify.

Balkin says that M[a]cDonald reinterprets Duncan v. Louisiana to give “it a strongly nationalist (i.e., opposed to foreign law)” flavor. For Balkin, McDonald’s reinterpretation holds that “Duncan stands for the proposition that rights are fundamental if they are deeply rooted in American traditions, so that the experience of other countries is irrelevant” (emphasis original). The error, by Balkin’s lights, is to interpret Duncan as asserting that a right is fundamental if it has some connection to that which is distinctively American.*

I’m not sure Balkin’s diagnosis is correct. McDonald’s reinterpretation of Duncan has two errors, one related to, but not identical with, that of which Balkin accuses it, the other unremarked.

The first error is that McDonald doesn’t recognize that Duncan announces a test for deciding whether procedural rights internal to the American justice system are fundamental. Ducan‘s rationale for this context-sensitive test – that anything more universal would fail to recognize that the American justice system cannot be remade willy-nilly – does not justify extending the context-sensitivity to  other, less rule-dependent, realms. The second Amendment obviously lies outside the scope of Ducan’s test.

The second error, related to the one Balkin identifies, is that McDonald says that the Duncan‘s test is whether a right is deeply rooted in American traditions. This is a different test from the one Balkin thinks McDonald attributes to Duncan, viz. whether a right is deeply rooted in American traditions.

Pace Balkin, Duncan does seem to stand for the proposition that the “American-ness” of a procedural right is relevant to whether it is fundamental. Footnote 14 says:

Earlier the Court can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection…The recent cases, on the other hand, have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental — whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.

This test does ask whether a right is, in some sense, distinctively American, and it does militate against using non-Anglo-American law to decide whether a (procedural) right is fundamental. What it doesn’t do, though, is assert that a right is fundamental only if it is rooted in American traditions. It must be “necessary to an Anglo-American regime of ordered liberty,” but this leaves open the possibility that its necessity has been hitherto unrecognized.

Alito’s mistake is not to give Duncan a strongly nationalist flavor, but to give it a strongly traditionalist flavor. (That said, Balkin is right in the final analysis: it is wrong to read into Duncan a blanket denial of the constitutional relevance of foreign law. But this is because Duncan’s test does not apply to all rights, not because Duncan isn’t, in any sense, “nationalist.”)

* Alito lures Balkin into this analysis by selectively quoting one of the tests that Duncan lays out for whether a right is incorporated – whether it is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” – and then emphasizing the “our.” (See page 16 of McDonald, linked above.)

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