Volume 106

Constitutionalism in Unexpected Places

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and restricted government action. The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood. Instead, both originalists and scholars of the “living” constitution think of 1787 as a hard break from the past and a starting point for their investigations.

But Americans of the Founding generation did not share our view that the only constitution that mattered was the one the Framers designed. This Article focuses on a feature of American colonial life that reappeared with striking continuity for three generations after Independence—the vindication of unwritten constitutional rights by mob action, and specifically, the tradition of mobs turning to Indian costume to express a specific series of constitutional grievances. During the age of the Revolution, many Americans believed that mobs in the streets performed a legitimate role in the enforcement of their unwritten constitution. These mob actions involved ritualistic violence and consistent, non-linguistic symbolism. The endurance of this form of constitutional engagement, employing the same symbols to assert the same suite of legal claims, is simply astonishing. It is evidence of the tenacity of a series of constitutional commitments predating the Founding that were not encompassed by, or replaced with, a written constitution.

This Article also makes a methodological point. An exclusive focus on official texts and the words, pamphlets, and letters of great men robs historical investigation of its depth and risks missing crucial insights about the past. Important evidence revealing how Americans conceived of their constitution and of themselves as legal actors can be found in their customs, in behavior, in performances in public spaces, and in the life of important ideas in literature and art. This Article focuses on a peculiar phenomenon as a way of modeling this point. The white protestor in Indian costume may seem like an oddity, but a deeper investigation reveals him to be a missing link, a key to how Americans believed their society was constituted, how they thought about justice, and how they understood the obligations the Revolution laid upon its inheritors.

Introduction

What every schoolchild learns about the Boston Tea Party is that a group of men dressed themselves as Indians and dumped tea into the Boston Harbor. If the social studies teacher is good and the child is paying attention, the lesson will also connect those actions to the proto-Revolutionary slogan, “no taxation without representation.” But why do we teach the Boston Tea Party this way? We do not remember what other men were wearing when they did other historically significant things. For this event, however, the choice of costume has always been an integral element of the story. In the 1830s, an old shoemaker looking back on his role in the Tea Party began his recollections of that night this way:

It was now evening, and I immediately dressed myself in the costume of an Indian, equipped with a small hatchet, which I and my associates denominated the tomahawk, with which, and a club, after having painted my face and hands with coal dust in the shop of a blacksmith, I repaired to Griffin’s wharf, where the ships lay that contained the tea. When I first appeared in the street after being thus disguised, I fell in with many who were dressed, equipped and painted as I was, and who fell in with me, and marched in order to the place of our destination.1 1.A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834).Show More

A legal scholar reading this should immediately have a few questions. He dressed as an Indian, complete with a symbolic weapon that was not a tomahawk but that he decided to call a tomahawk. He painted his skin, and not just his face in order to disguise himself, but his hands, too. This was a performance meant to express something. If the shoemaker’s recollection is accurate, then the blacksmith from whom he borrowed coal dust would have understood its message and so would all of the men out that night in the streets of Boston. And whether accurate in every detail or not, there is significance in his choice to remember it that way. Those mechanics, artisans, and labor organizers who discovered and elevated this shoemaker in the 1830s as one of the last surviving members of a heroic generation, and who promoted his memoir as part of an elaborate Independence Day commemoration, must have understood the message he conveyed by making Indian costume so central to the story.2 2.See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981).Show More They must, in fact, have meant to amplify it. But from this distance of time, we no longer understand it.

Scholars know (or should know) the Boston Tea Party as a legal event. The Tea Party protestors asserted that their constitutional rights had been violated and demanded redress. But what we have failed to appreciate is that the Bostonians believed that their costumes added something to that claim.3 3.For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles . . . mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”).Show More It is important that Americans dressed up to assert their rights and it is just as important that Americans remembered the costume as integral, although we may not understand why. And the mystery of it grows in importance when we realize that the costume element of the Boston Tea Party demonstration was far from unique to that event. From the 1760s through at least the 1840s, this was a common element in many protests against sheriffs bearing eviction notices or threatening action from a creditor. White Americans would dress up in Indian costume, make up their faces with their idea of Indian war paint, and participate in destructive and sometimes violent demonstrations.

This is a strange fact about the past, and difficult to square with our lionization of that group of ordinary men now ennobled by the title, “the Founding generation.” But this oddity, and others like it, are critical evidence if we are to understand the constitutional ideas and legal imaginations of men of that generation and those that followed. The Boston Tea Party participants thought they were making a constitutional argument and so did the all of the protestors dressing in costume to assert their claims in the decades that followed. But what did “constitution” mean? We are accustomed to using that word in one way before the Founding-era, and in a completely different sense as soon as Americans began writing their plans of government down. But the longevity and apparent power of this protest symbol attests to the endurance of a British North American form of constitutional expression that did not die out at the Founding and that was not successfully replaced by written constitutions for several generations.

Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that confirmed ancient rights and that restricted government action. In discussing an “unwritten constitution,” this Article does not draw the distinction that some scholars have between the text of the written Constitution and the policies and principles that underlie it. Nor does it mean to invoke the distinction between the text of the Constitution and the penumbra that has developed around it since. To Americans of the Founding generation, the unwritten constitution was simply the fundamental law: the law of their forefathers, the law justifying their pride in their English heritage, the law that they fought to defend in the Revolution.

The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood.4 4.In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period.Show More Originalists have missed its importance because of their focus on the meaning of ratified constitutional text. They believe that the moment of ratification “fixed” constitutional rights and obligations, and that these may be found in the Constitution’s words. The main branches of originalist debate concern where to find the meaning of those words, whether in convention debates or in the ratification debates or elsewhere.5 5.It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.”Show More A premise underlying this view is that Founding-era Americans would have agreed that the written Constitution was the be-all-end-all, at least as far as constitutions go.6 6.See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory​ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”).Show More

Non-originalist scholars, on the other hand, have sought to identify values that have come into the Constitution over its two hundred year “life.”7 7.Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not.Show More Building on the concept of a “penumbra” around constitutional terms, these scholars observe that the Constitution’s words have thickened with meaning over time and through their use by an evolving society.8 8.This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”).Show More Akhil Amar’s recent book, America’s Unwritten Constitution, is a prime example of this genre: he argues that that through court cases and rights movements, Americans have built interstitial meanings into the Constitution.9 9.Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012).Show More But even those scholars start from the premise that all of this development began in 1787.

In short, originalist and non-originalist scholars share a perspective on the written Constitution: that it operated as a hard break.10 10.See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning . . . of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787.Show More Even when scholars and jurists look back further than the 1780s, they do so largely to learn whether certain terms contained in constitutional text incorporated a pre-existing common law meaning.11 11.See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”).Show More They do not look back to a constitution that exists separately from our written one. They share a view that whatever American colonial subjects believed a “constitution” was before the Revolution, Americans altered that idea completely once the property-holding gentlemen among them met and decided to write something down.

This Article starts from a different premise: that Americans of the Founding generation did not share our view that the only “constitution” that mattered was the one the Framers designed. Instead, having grown up as Britons, and having lost friends and family in a war to defend their rights as such, they still thought of themselves as the beneficiaries of a constitution of customary right. This is not to deny the importance of the written Constitution, or to dispute that it was significant that the Founders decided to write something down.12 12.See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019).Show More It is only to assert, as does the written Constitution itself, that the Founders did not intend that “[t]he enumeration in the Constitution[] of certain rights” would “be construed to deny or disparage others retained by the people.”13 13.U.S. Const. amend. IX.Show More

The way legal scholars ask historical questions has hindered our ability to appreciate the endurance and the continuity of unwritten constitutional­ism. It is common for a legal scholar to plumb the historical record to either confirm or deny a theory about what the Constitution means for us right now. But the archive does not function well as a magic eight ball. The yes/no/maybe/ask again approach to historical research, by fixating on narrow questions about constitutional text, forecloses really interesting questions about what a constitution is.

The problem with the way legal scholars use history is not only the questions we ask, it is also our methodology.14 14.Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561.Show More As any historian can tell you, going into an archive can be a humbling experience. What one finds in a historical record provides a small window onto the past, through which we can dimly perceive only a part of the action. When a legal scholar goes into the archive with a fixed question in mind, she must dismiss as irrelevant anything that is not responsive, along with anything that she does not understand. But given the very limited view the historical record provides, dismissing any evidence at all risks missing important truths. The puzzles one encounters during primary research are actually the archives’ greatest prizes. Instead of skipping over these to chase after hints in the records that might confirm a favorite hunch or cherished thesis, it is worthwhile to linger on the oddities. Exploring these reveals the past on its own terms, allowing the record to propose its own questions, and suggest its own answers.

This Article is about a protester that I will call the “white Indian,” because that is what this man would have called himself. He emerged again and again from archival research while I was hunting for something else. Wherever conflicts arose over the fairness of a law pitting owners or creditors against renters and debtors, whether in staid newspaper debates or in all-too-frequent armed insurrections, this white man in moccasins, or with a blanket around his shoulders, or with a painted face, or wielding a tomahawk, appeared as the avatar of the honest debtor or the dispossessed squatter. I was so puzzled by him that I stopped what I was doing and gave this recurring figure a closer look. I found that at least two scholarly works had already lingered over white Indians: an elegant short essay by Alan Taylor, written when he was still a graduate student, and a thoughtful full-length intellectual history by Philip Deloria.15 15.Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985).Show More But given my preoccupations as a legal historian, I read these figures in a different light. I came to understand that they represented a series of interconnected ideas about authentic American identity and virtue.16 16.This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5.Show More And more than this, the Indian dress was a potent legal symbol, both for the people who wore the costume and the people who saw it.

I came to see the white man in Indian dress as an assertion of rights under America’s unwritten constitution. This Article will explain why, and in the process, model an alternative way of bringing history into legal scholarship. To take Americans’ unwritten constitution seriously, one has to see as relevant behaviors, norms, and cultural practices typically invisible to the legal scholar. Scholars parsing and reparsing text, opinions, dictionaries, and the like have missed the unwritten constitution because its defenders often made their claims out of court. My goal is not to resolve the relationship between the unwritten constitution and the written one. My goal is simply to convince you that it exists, to suggest that the relationship between it and the written Constitution is important, and to begin looking for this constitutionalism, which appears more often than not in unexpected places.

This Article proceeds in three parts. First, it explains why this strange artifact, mob action by white men in Indian costume, should be read as an expression of unwritten constitutionalism. Then, it will sound a theory on some of the specific constitutional rights this costume invoked. And finally, it will show how long this form of constitutional expression persisted and discuss some of the implications of this long life for how we should understand our legal past.

  1. * Associate Professor of Law and History, University of Virginia School of Law. I would like to thank Bridget Fahey, Risa Goluboff, Sally Gordon, Hendrik Hartog, Tony Kronman, Bill Nelson, Rich Schragger, and Eugene Sokoloff for helpful comments on an earlier draft. I am also grateful to the participants in the faculty workshop at Georgetown University Law Center and at the University of Pennsylvania School of Law’s Legal History Workshop. ↑
  2. A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834). ↑
  3. See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981). ↑
  4. For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles . . . mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”). ↑
  5. In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period. ↑
  6. It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.” ↑
  7. See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory​ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”). ↑
  8.  Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not. ↑
  9. This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”). ↑
  10. Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012). ↑
  11. See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning . . . of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787. ↑
  12. See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”). ↑
  13. See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019). ↑
  14. U.S. Const. amend. IX. ↑
  15. Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561. ↑
  16. Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985). ↑
  17. This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5. ↑

Self-Portrait in a Complex Mirror: Reflections on The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens

Immediately after his death last year, Justice John Paul Stevens received a number of moving eulogies, several by former law clerks published in the Harvard Law Review, along with a tribute from Chief Justice Roberts.1 1.Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020).Show More Former law clerks—and I am one myself—must be given the latitude to reminisce about what they learned from their judge and what the judge’s contributions were. This Essay takes up a different task: to reflect on the man, the lawyer, and the judge as portrayed in his memoirs, The Making of a Justice: Reflections on My First 94 Years, published only months before he died at age ninety-nine. If the reflections in this Essay suffer from the distortions of hagiography, I hope they do so only to this extent: in observing that Justice Stevens does not need hagiography and would not have wanted it. On the contrary, he thought he could win any argument without fear or favor of any kind. And by the same token, he would have been completely confident of his account of his life and career. A comment by Paul Clement, a leading member of the Supreme Court bar, sets the tone for these reflections: Justice Stevens’s questions at oral argument were “[o]ften fatal; always kind.”2 2.Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27].Show More

Such paradoxes lie at the center of Justice Stevens’s character and his career as a lawyer and a judge. He showed extraordinary independence in a branch of government and a profession immersed in rules. He had a keen sense of competition, evident outside of court in his pursuit of golf, tennis, and bridge. In his memoirs, he confesses to only a few errors in his many opinions as a judge, and he points repeatedly to cases in which the Supreme Court eventually came around to the position he first took in dissent.3 3.John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases).Show More Yet he was known to be genial as well as generous in victory (which he much preferred) and in defeat (which he would rarely concede).4 4.Id. at 143 (conceding a mistake in one of five capital cases decided the same term).Show More He also had a fine sense of irony and a sharp sense of humor, notable for its telling and understated delivery. In a personal jurisdiction case, familiar mainly to experts in the arcana of civil procedure, the Court reached a unanimous result by way of several separate opinions. Justice Stevens agreed with the judgment in the case but not with the separate opinions, making clear his reservations in this footnote: “Perhaps the adage about hard cases making bad law should be revised to cover easy cases.”5 5.Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment).Show More

Justice Stevens’s independence raises pointed questions: Independence from what? And with allegiance to what principles? No individual, let alone a lawyer or a judge, would admit to a lack of independence. So does Justice Stevens’s independence really distinguish him from others in the same profession? The answer is a matter of both degree and kind: in degree, in his enthusiasm for the back-and-forth of legal argument, and in kind, in his skill and affinity for “the artificial reason and judgment of law,” as Lord Chief Justice Coke put it in confronting James I over his royal prerogative to act as a judge.6 6.12 Edward Coke, Reports of Sir Edward Coke 65 (1738).Show More Justice Stevens was a lawyer’s lawyer in his facility and engagement with the dialectic of legal discourse. This accords with both his competitiveness and his genial irony. Legal advocacy is a winner-take-all sport. It requires a truly competitive spirit, yet at the same time a willingness to graciously accept defeat.

In genuinely hard cases, the kind that make it to the Supreme Court, lawyers and judges must accept something like a major league batter’s average—ideally .500, but realistically .300. They prevail in hard cases or on difficult issues about a third of the time. This figure holds for Justice Stevens, as assessed through his opinions. He wrote a record-breaking 628 dissents as compared to 398 opinions for a majority or a prevailing plurality, and for good measure, he also wrote 375 concurring opinions.7 7.Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015).Show More It follows that a certain degree of humility is in order. This attitude might be hard to miss in Justice Stevens’s memoirs, which can be read as a history of arguments he won—or thought he should have won. To take this view, however, would be to discount Justice Stevens’s love of legal argument. As one of his former clerks, now Judge David Barron, observed: “Have you ever seen someone chuckle while reading a brief in a difficult case?”8 8.David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020).Show More

This Essay proceeds in three parts: first, in examining Justice Stevens’s personal and professional background and how that might have influenced his decisions as a judge; second, in accounting for the growing salience of the positions he took over his career; and third, in assessing the lessons from his long tenure as a Justice.

I. Individual and Family

Looking back over a life that extends to nearly a century, and over a career that was only a few decades shorter, requires continued adjustment of focus. Justice Stevens grew up in another era, one in which he could see Babe Ruth’s “called shot” before he hit a home run in the World Series.9 9.The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id.at 18.Show More He served with distinction in World War II and graduated from Northwestern University School of Law shortly after the war.10 10.Id.at 35–41, 53–59.Show More He then served as a law clerk for Justice Wiley Rutledge in the 1947 term of the Supreme Court.11 11.Id.at 61–68.Show More He returned to Chicago to practice law, focused upon antitrust cases, and returned only briefly to Washington to serve on the staff of the House Judiciary Committee.12 12.Id.at 69–92.Show More He was appointed to the U.S. Court of Appeals for the Seventh Circuit in 1970 and then to the Supreme Court in 1975.13 13.Id.at 107–10, 124–32.Show More

Justice Stevens established his reputation outside the antitrust field when he volunteered to serve, pro bono, as the general counsel to a commission investigating corruption in the Illinois Supreme Court.14 14.Id.at 101–06.Show More The commission, composed of practicing lawyers, was widely expected to exonerate the justices on the court, but Justice Stevens’s vigorous investigation corroborated the charges against two justices, who promptly resigned after the commission recommended that they do so. The investigation made Justice Stevens a prominent member of the Chicago bar, and soon after it concluded, Senator Charles Percy approached Justice Stevens about the possibility of appointment to the Seventh Circuit.15 15.Id.at 107–08.Show More The rest is history.

The smooth upward rise in his legal career might lead an observer to conclude that his personal life exemplified a similarly tranquil progression. This partly results from the illusion of a retrospective account of his career and partly from the evident satisfaction that Justice Stevens took in both his professional and his personal life. This mistake is understandable, but still a mistake. In his youth, his father was tried and convicted of financial fraud relating to the operation of the Stevens Hotel, which Justice Stevens’s family owned and managed. His father succeeded in having his conviction reversed on appeal a year after it was entered, but the entire process took a toll on the family, apparently contributing to a stroke suffered by Justice Stevens’s grandfather and the suicide of one of his uncles.16 16.Id.at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned).Show More Justice Stevens’s father never recovered his financial position, experienced failure as a restaurateur, and later had only limited success as the owner of a resort in Wisconsin.

After he reached the Supreme Court, Justice Stevens faced other personal trials. His adopted son, John Joseph Stevens, served in Vietnam and then encountered difficulties in civilian life. He died prematurely from a brain tumor in 1996.17 17.Barnhart & Schlickman, supra note 16, at 139, 193, 252.Show More Earlier, in 1979, Justice Stevens divorced his first wife, Elizabeth, and immediately married his second wife, Maryan. She had been the wife in a couple who lived near the Stevens family in Chicago and socialized with them, including with the children.18 18.Id. at 220–22.Show More The lessons from his personal life do not yield determinate implications for his judicial career or, indeed, for his life as a whole. What they do show, along with his service in World War II, is that he was someone acquainted with the crises in human affairs and their profound effects on individual lives, including his own.

His practice as a lawyer in Chicago, and a Republican in the era of the Democratic Daley machine, also reveals his ambivalent status as an establishment figure who was nevertheless, in some respects, an outsider. He notes in his memoirs, with characteristic irony, that when he entered the practice of law, “the Republican Party was still the party of Abraham Lincoln.”19 19.The Making of a Justice, supra note 3, at 81.Show More Now, of course, Republicans of this persuasion are as scarce nationally as all Republicans were in Chicago during his time there. After he became a judge, Justice Stevens refused to reveal his political affiliation, and several of his former law clerks speculate that he would have resisted the label that he was the leader of the liberal wing of the Supreme Court.20 20.He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican).Show More An accurate account of his judicial philosophy is so elusive partly because he was temperamentally averse to anything that resembled the party line.

II. The Evolution of a Justice

It is only a slight exaggeration to say that Justice Stevens moved from the center to the liberal wing of the Supreme Court without ever changing position. He did change position on issues such as affirmative action and capital punishment, moving away from disapproval of the first and approval of the second.21 21.He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id.at 141–44, 476–77.Show More But as Justice Stevens himself has noted, the Court changed around him more than he changed within it. Every Justice appointed during his time at the Court was more conservative than the Justice he or she replaced.22 22.Peñalver, supra note 20, at 765.Show More That change brought into greater relief the distinctiveness of his opinions and reasoning. When he challenged the old orthodoxy of the Warren and Burger Courts early in his career, his arguments mattered less to observers because that orthodoxy seemed so firmly established. As it has been systematically dismantled by the Rehnquist and Roberts Courts, the positions that he took appeared to be far more consequential. He ended his career challenging the emerging orthodoxy of originalism, textualism, and the primacy of rules over standards, and he invoked precedent more frequently to defend established doctrine as he saw it.

Tracing continuous themes in his career is a daunting task, made more daunting as his judicial record expanded over more than thirty-four years on the Court, and it has been augmented by the books he has published in retirement. The overall contours of his jurisprudence threaten to dissolve into a pointillist array of particular decisions and case-specific reasoning. General observations remain subject to qualifications, exceptions, and even refutation from the imposing number of opinions that he wrote, more than any other Justice in history. Hence, any attempt to identify principles and methods characteristic of his decisions has to be selective and by way of example rather than by an attempt to be comprehensive and definitive. This Essay therefore focuses on three opinions in which he took distinctive and noteworthy positions: Craig v. Boren,23 23.429 U.S. 190 (1976).Show More on sex discrimination and equal protection; Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,24 24.467 U.S. 837 (1984).Show More on judicial review of administrative action; and District of Columbia v. Heller,25 25.554 U.S. 570 (2008).Show More on the right to bear arms under the Second Amendment.

Each of these opinions comes from a different era in Justice Stevens’s tenure as a Justice—early, middle, and late—and each has had varying degrees of influence—from indirect and implicit, to significant and canonical, to oppositional and dissenting. The following discussion takes them up in chronological order.

A. Craig v. Boren

This case concerned two Oklahoma statutes that prohibited the sale of 3.2% beer to young men aged eighteen to twenty, but not to women of the same age. The majority opinion, by Justice Brennan, applied a form of “intermediate scrutiny” to hold the statutes unconstitutional because they did not “serve important governmental objectives” and were not “substantially related to achievement of those objectives.”26 26.Craig, 429 U.S. at 197.Show More The statistical evidence marshalled by the state did not establish a sufficient relation between the discrimination against young men and the state’s legitimate interest in traffic safety. Several separate opinions, either concurring or dissenting, raised issues about the appropriate standard of review.27 27.Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting).Show More Justice Stevens wrote another concurring opinion where he roundly declared: “There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”28 28.Id.at 211–12 (Stevens, J., concurring).Show More The Equal Protection Clause, as he read it, did not divide cases into those triggering strict scrutiny, rational basis review, and intermediate scrutiny.

Adherents to the orthodox view of judicial review would find this claim to be heresy, as it was then and still is now. The only difference in constitutional doctrine since then has been the shift towards increased scrutiny of sex-based classifications from the standard applied in Craig v. Boren to the more exacting standard of United States v. Virginia, requiring “an exceedingly persuasive justification” for government action based on gender.29 29.518 U.S. 515, 531 (1996) (internal quotation marks omitted).Show More While Justice Stevens concurred in these later opinions, he never retreated from his skepticism over “tiers of scrutiny.” He was “still convinced that carefully analyzing in each case the reasons why a state enacts legislation treating different classes of its citizens differently is far wiser than applying a different level of scrutiny based on the class of persons subject to disparate treatment.”30 30.The Making of a Justice, supra note 3, at 155.Show More The reason for his skepticism has as much to do with the logic of equality as with text of the Constitution. Assuring equal treatment among persons does not obviously require different standards of review and, as Justice Stevens suggests, seems to preclude it.

Whatever the merits of this argument, it certainly has not proved to be persuasive. It has not attracted the agreement of any other Justice. The debate among the other Justices over standards of judicial review has, instead, taken place within the framework of different levels of scrutiny. Yet the paradox he has noted has not been resolved, and it reappears whenever a new basis of classification, such as sexual orientation, comes under constitutional attack.31 31.Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review).Show More Justice Stevens’s failure to address such questions in terms of strict scrutiny might lead one to conclude that he was unsympathetic to novel claims of discrimination. The reverse, however, is true. On the particular issue of sexual orientation, in his very first term at the Court, he dissented from a summary affirmance of a decision upholding a criminal prohibition against sodomy,32 32.Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument).Show More as he did years later from a decision of the Court reaching the same conclusion on the merits,33 33.Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting).Show More and when the Court eventually overruled the latter decision, he joined the opinion doing so.34 34.Lawrence, 539 U.S. at 561.Show More

On the general issue of sex discrimination, as in Craig v. Boren, Justice Stevens nearly always voted to hold government action on the basis of sex unconstitutional. He did so in dissent from a decision upholding sex-based distinctions in defining statutory rape,35 35.Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting).Show More as he did in joining the opinions for the Court that established an elevated standard of scrutiny for sex-based classifications.36 36.United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982).Show More His refusal to frame the issue in terms of standards of review did not prevent him from reaching largely the same results. Occasional departures from this trend, as in his early vote to join in an opinion upholding a statute requiring only men to register for the draft37 37.Rostker v. Goldberg, 453 U.S. 57, 58 (1981).Show More or a late vote to join in an opinion upholding different standards for proof of paternity, rather than maternity, in immigration cases,38 38.Nguyen v. INS, 533 U.S. 53, 56 (2001).Show More stand out as exceptions based on very narrow grounds. These are, in the case of the draft, entirely superseded by the subsequent integration of women into all parts of the armed forces.39 39.Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military).Show More

More prominent and more immediately influential was Justice Stevens’s insistence on a unitary approach to claims of sex discrimination under Title VII of the Civil Rights Act of 1964.40 40.Codified at 42 U.S.C. §§ 2000e et seq. (2012).Show More He treated these claims just like claims of race discrimination, subject only to the narrow exceptions in the statute for employment discrimination on grounds other than race. In an early decision, City of Los Angeles Department of Water & Power v. Manhart,41 41.435 U.S. 702 (1978).Show More he established what would soon become the dominant approach to sex discrimination under Title VII. His opinion held that an employer violated Title VII whenever it made a classification on the basis of sex that fell outside the exceptions found in the statute.42 42.Id. at 708–10.Show More In a dissent from an earlier decision, he had already applied this principle to classifications on the basis of pregnancy,43 43.Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting).Show More and Congress soon amended Title VII to reach the result for which he had advocated.44 44.Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012).Show More He then elaborated upon it in an opinion that held, paradoxically, that male employees could be victims of pregnancy discrimination that restricted medical coverage for their wives.45 45.Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983).Show More This opinion was then further extended by the Court to exclusions from employment based on a woman’s capacity to become pregnant.46 46.UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991).Show More The Court’s position became identical to his own.

Is there a contrast between the standard “to govern impartially” that Justice Stevens found in the Equal Protection Clause and the rule prohibiting almost all classifications on the basis of sex under Title VII? If any exists, it arises from the more specific and less abstract terms of the statute, which lends itself to interpretation as a rule. Even so, this rule of statutory interpretation admitted some classifications on the basis of sex beyond those covered by exceptions in the statute itself. For instance, Justice Stevens found a California statute requiring paid leave for pregnant employees, but not for prospective fathers, to be consistent with Title VII. He reasoned that it was “consistent with ‘accomplishing the goal that Congress designed Title VII to achieve.’”47 47.Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)).Show More Justice Stevens’s interpretation of Title VII did not have to overcome any established orthodoxy, unlike the different standards of judicial review under the Constitution. Justice Stevens took issue with the latter orthodoxy and continued to do so throughout his career and in his memoirs,48 48.The Making of a Justice, supra note 3, at 155.Show More even if he could not persuade his colleagues explicitly to depart from it.

B. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Justice Stevens’s opinion for the Court in Chevron has likely received more citations than any other of his opinions. It is cited in nearly 17,000 judicial opinions and over 20,000 secondary sources.49 49.WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations)(last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006).Show More By way of comparison, his decision upholding the exercise of the eminent domain power in Kelo v. City of New London,50 50.545 U.S. 469 (2005).Show More which he regards as the most unpopular of his career,51 51.The Making of a Justice, supra note 3, at 431.Show More has been cited in opinions just over 500 times and in secondary sources just under 6000 times.52 52.WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020).Show More In administrative law, Chevron has become something of a world unto itself. Its holding appears in a paragraph that has been endlessly interpreted by courts and commentators:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.53 53.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted).Show More

In his memoirs, as in his opinions after Chevron, Justice Stevens went to some length to downplay its significance, emphasizing its continuity with prior decisions deferring to agency expertise and reserving to the courts the power to decide “pure question[s] of statutory construction.”54 54.Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)).Show More For him, there was no “Chevron revolution.”55 55.Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”).Show More To the consternation of Justice Scalia, he departed from the orthodoxy that would have elevated the significance of his own opinion.56 56.Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment).Show More In its place, Justice Stevens relied on a disputable distinction between pure questions of law for the courts and questions of application of law to fact for the agencies, complicating the seemingly simple procedure endorsed in Chevron itself.57 57.Id. at 445–46 & n.29 (majority opinion).Show More As a consequence, he appears to have minimized the implications of one of his most influential decisions—and to be one of the few Justices in history to do so. His aversion to rigid rules of decision extended even to those derived from his own opinions.

The most fundamental objection to a broad view of Chevron goes to its deference to administrative agencies on questions of law. Under current doctrine, administrative agencies can essentially “say what the law is.”58 58.City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting).Show More This question has been, since Marbury v. Madison, traditionally thought to be “emphatically the province and duty of the judicial department.”59 59.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).Show More A further objection follows from the provision in the Administrative Procedure Act that authorizes judicial review of “all relevant questions of law”60 60.5 U.S.C. § 706 (2012).Show More and from the historical practice of review of agency action by writ of mandamus.61 61.Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017).Show More Justice Stevens’s view of Chevron reduces the force of those objections, as compared to the usual understanding of the decision, by opening the door at the outset of the inquiry to judicial resolution of “pure question[s] of statutory construction.”62 62.Cardoza-Fonseca, 480 U.S. at 445–46 & n.29.Show More Still, if Chevron means anything, it leaves some questions of law for agency determination. Justice Stevens’s view of the decision does not eliminate all objections to it or put an end to the seemingly endless disputes over its proper interpretation.63 63.Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46.Show More What it does illustrate is Justice Stevens’s preference for continuity and common sense over radical restructuring and formal inquiry.

In a revealing aside in his memoirs, Justice Stevens identifies Chevron as the only case in which he visited the chambers of another Justice to secure agreement with his draft opinion. He visited Justice Brennan to convince him to join the opinion for the Court, which made it unanimous.64 64.The Making of a Justice, supra note 3, at 205.Show More The need to secure another vote, when Justice Stevens already had a majority of five, does not seem obvious based on considerations internal to the opinion itself. Yet as an institutional matter, the Supreme Court was handicapped in deciding Chevron by the recusal of three Justices,65 65.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision).Show More making any bare majority a fragile basis for guiding lower courts and administrative agencies. Concerns over continuity of precedent influenced both the opinion itself and the method of securing support for it.

Scholars of administrative law might well find Justice Stevens’s attempt to generate consensus ironic, as it resulted in a precedent that has since become an occasion for proliferating disputes. In addition to the issues mentioned earlier, it has generated disputes over the deference accorded to an agency’s interpretation of its own regulations66 66.Auer v. Robbins, 519 U.S. 452, 461–63 (1997).Show More and over the forms of agency interpretations, from regulations to positions taken in litigation, that deserve deference.67 67.United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”).Show More A further limitation on the decision puts “question[s] of deep economic and political significance” beyond its scope.68 68.King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges).Show More It also does not apply to purely interpretive rules promulgated by an agency that Congress did not intend to have the force of law69 69.Gonzales v. Oregon, 546 U.S. 243, 268 (2006).Show More or when settled judicial interpretation has eliminated any ambiguity in a statute.70 70.United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment).Show More Instead of simplifying judicial review of administrative action, Chevron has resulted in the multiplication of doctrinal issues that limit or trigger its application. Perhaps the vast scale of the administrative state would have resulted in disputes over similar issues under different headings, but they now come under the heading of Chevron, limiting its scope and significance. If so, in another ironic twist, this development tends to support Justice Stevens’s view of the decision as a modest innovation on existing precedents.

C. District of Columbia v. Heller

Precedent figured far more prominently in Justice Stevens’s dissent from the Supreme Court’s reinvigoration of the Second Amendment as the source of individual rights to gun ownership, possession, and use. His opinion relied primarily on the authority of United States v. Miller,71 71.307 U.S. 174 (1939).Show More a decision from the 1930s that upheld a federal prohibition applicable to sawed-off shotguns. He fully endorsed the reasoning of that decision requiring that firearms protected by the Second Amendment must have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”72 72.Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178).Show More Justice Scalia, writing for the Court, took issue with the breadth and soundness of Miller because that opinion says “[n]ot a word (not a word) about the history of the Second Amendment.”73 73.Heller, 554 U.S. at 624.Show More After his own lengthy review of the historical record, Justice Stevens found that Scalia offered “insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.”74 74.Id. at 679 (Stevens, J., dissenting).Show More

Debate has ensued over whether the difference between the two opinions arose from applying a common originalist methodology75 75.Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”).Show More or from contrasting originalism with adherence to precedent.76 76.Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”).Show More To be sure, Justice Stevens felt the need to meet Scalia’s arguments from the historical record on their own terms, even though he believed Miller to provide an entirely sufficient basis for his dissent.77 77.The Making of a Justice, supra note 3, at 485.Show More He did not become an originalist by taking on originalist arguments. Indeed, his appeal to the historical record appears to be confirmed on a crucial issue in Heller: whether “the right to bear arms” in the Second Amendment was primarily understood at the time of its ratification in a military context. Scalia conceded that the phrase took on that meaning when it was used with the preposition “against,”78 78.Heller, 554 U.S. at 586.Show More as in “the right to bear arms against a foreign enemy.” More recent and more extensive searches of eighteenth-century texts reveal that the phrase was used most commonly in a military context.79 79.Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019).Show More A rigorous originalist, who would overrule precedents contrary to the common public meaning of constitutional language at the time of enactment, might well have doubts about the continued force of Heller itself as a precedent.80 80.Id.at 10–15.Show More

In his dissent, Justice Stevens did not appeal directly to public policy but to the need to give elected officials the power to make the policy judgments inherent in gun control legislation.81 81.Heller, 554 U.S. at 679–80 (Stevens, J., dissenting).Show More His memoirs, like his previous book, Six Amendments, are another matter. He “find[s] it incredible that policymakers in a democratic society have failed to impose more effective regulations on the ownership and use of firearms than they have.”82 82.The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground).Show More He also regrets that he did not emphasize the human costs of the decision in his conversations with fellow Justices.83 83.The Making of a Justice, supra note 3, at 485.Show More While the coincidence of his views on the policy issue and the constitutional issue is not surprising, the framing of his legal argument to turn decisively on precedent is revealing. His heavy reliance upon Miller was not an instance of looking into a crowd and seeing his friends. Miller was the only decision on point from the Supreme Court. His faith in precedent went hand-in-hand with his emphasis upon case-by-case adjudication.84 84.William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10.Show More

In this respect, he was a Burkean conservative, who could depart from precedent only if he understood all features of the past decision and all features of the present case. Incremental change for Edmund Burke was far superior to revolutionary transformations. As Burke said, “I must see with my own eyes, I must, in a manner, touch with my own hands, not only the fixed but the momentary circumstances, before I could venture to suggest any political project whatsoever.”85 85.Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901).Show More So too, Justice Stevens had to see and handle all the dimensions of a case or a precedent. This can prove maddening to anyone trying to extract general principles from his opinions, but it is an undeniable characteristic of his jurisprudence.86 86.Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”).Show More

While Justice Stevens was reluctant to overrule past decisions, he could readily distinguish them. For instance, in a case on sovereign immunity, Seminole Tribe v. Florida,87 87.517 U.S. 44, 84 (1996) (Stevens, J., dissenting).Show More he questioned the scope of a precedent that extended the Eleventh Amendment to suits by a citizen of a state against that citizen’s own state. He did not, however, see any need to overrule it because it did not, like Seminole Tribe, concern a claim under a federal statute.88 88.Id.at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute).Show More Justice Stevens took the same position on the scope of the Eleventh Amendment in his book, Six Amendments, urging that the Amendment itself should be amended to make clear that it does not apply to claims under federal statutes or the Constitution.89 89.Six Amendments, supra note 82, at 146–47.Show More In a later case, Kimel v. Florida Board of Regents,90 90.528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part).Show More he would have overruled Seminole Tribe, but on the ground that that decision itself did not respect precedent.91 91.Id. at 97–99 (Stevens, J., dissenting in part and concurring in part).Show More Whether or not one finds this intricate reasoning persuasive, it indicates the lengths to which he would go in order to preserve a semblance of continuity in the Court’s rulings.

This strategy had untoward consequences in Heller and in the ensuing decision in McDonald v. City of Chicago,92 92.561 U.S. 742 (2010).Show More which applied the Second Amendment to the states. The majority opinions in both cases have a decidedly anti-precedential undertone, arguing that the Second Amendment has not received the respect it deserves. The majority opinion in Heller concluded that “it is not the role of this Court to pronounce the Second Amendment extinct,”93 93.District of Columbia v. Heller, 554 U.S. 570, 636 (2008).Show More and the majority opinion in McDonald decided “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”94 94.561 U.S. at 767.Show More The Court in McDonald also noted that a number of decisions selectively incorporating the Bill of Rights in the Fourteenth Amendment also overruled prior precedents.95 95.Id. at 763–66.Show More When overruling is the order of the day, an appeal to precedent can seem to be both futile and self-defeating.

That still leaves open the question of how a nonconformist, like Justice Stevens, could genuinely follow precedent. The answer goes back to an opinion early in his career. In Runyon v. McCrary,96 96.427 U.S. 160, 173 (1976).Show More the Supreme Court applied the Civil Rights Act of 186697 97.Codified at 42 U.S.C. § 1981 (2012).Show More to private discrimination, based on its earlier decision in Jones v. Alfred H. Mayer Co.98 98.392 U.S. 409, 420–21 (1968).Show More In a concurring opinion, Justice Stevens stated that his “conviction that Jones was wrongly decided is firm,” but that Jones accorded with the “policy of the Nation as formulated by the Congress in recent years.”99 99.Runyon, 427 U.S.at 190–91 (Stevens, J., concurring).Show More The statutory context favored the continued vitality of Jones even if it was wrongly decided in the first instance. By contrast, when the statutory or constitutional context of a prior decision had changed to its disadvantage, Justice Stevens favored overruling or drastically narrowing its scope, as he said in opinions in areas as different as maritime law and habeas corpus.100 100.Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district).Show More Precedent for him, perhaps more so than for most judges, enabled as much as it constrained his decision making. It provided the language of the law in which he framed his argument rather than dictating his decisions.

III. The Influence of an Iconoclast

Memoirs necessarily are a retrospective genre, looking back over an entire life and career. They invite the nostalgic thought that the author’s like will not be seen again. Of course, this is true. No veteran of World War II or a graduate from law school in the 1940s will be seen again on the Supreme Court. The more urgent question is whether conditions have so greatly changed that they leave no room for a Justice with the independence of mind that Justice Stevens displayed. It is, however, a question for the long term. It is not one that can be answered by a search for the acceptance of his views by a majority of Justices before his death. His memoirs could be read in this way, but scorekeeping along this dimension alone misses what was essential to his style of reasoning.

The justification for what he wrote in his many opinions was internal to the arguments he advanced, not external and dependent upon acceptance by others. An iconoclast, as he was in an insistent and understated way, does not expect to gain immediate agreement. Justice Stevens was not searching for the median position that would attract a majority of Justices. Anyone who spoke out against the established tiers of judicial review, as Justice Stevens did in Craig v. Boren, was not seeking consensus support for his views. Chevron might be taken to be an exceptional case in which Justice Stevens did seek consensus, but his minimalist interpretation of that decision represents a minority view. His attempt to confront originalism on its own terms in District of Columbia v. Heller hardly constitutes a concession to this influential method of constitutional interpretation. It instead rests on his refusal to depart from established precedent.

In offering his many separate dissents and concurrences, Justice Stevens did not expect to be vindicated by agreement. It is not that he was indifferent to the outcome in those cases. Even a cursory look at his dissents, for instance, in the cases in which he would have denied First Amendment protection for flag burning,101 101.United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting).Show More demonstrates this conclusion to be deeply erroneous. He was by nature too serious and competitive to be indifferent. Otherwise, he would not have written his book, Six Amendments,102 102.Six Amendments, supra note 82, at 15–17.Show More arguing for changes to the Constitution to overrule several decisions, from most of which he dissented. The question elided by that book is whether he would have overruled those precedents once they had been handed down. Proposing amendments finessed this question and relieved him of the need to reveal how far he would depart from his general respect for precedent.

The hazards of a purely effects-based test for influence put skeptics of the reigning orthodoxy at a systematic disadvantage. It also invites a premature historical inquiry into the legacy of a Justice’s tenure at the Supreme Court. The evidence is not all in, even after a tenure and life as long as his. The vicissitudes of historical understanding, with each generation of historians offering an account that might be at odds with its predecessors, adds another dimension of uncertainty to the assessment of effects. Is Justice Story now regarded as highly as he was in the early nineteenth century, when he was well known as a prolific treatise writer and an influential professor at Harvard Law School, in addition to his role as a Justice of the Supreme Court?103 103.See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”).Show More One hesitates to offer any simple, formulaic answer to such questions.

Our assessment now must be based on the integrity, originality, and soundness of Justice Stevens’s judicial record. Members of the legal profession would admire all these attributes of his decisions, even as they disagreed with him on the merits. One suspects that he would demand as much independence of judgment from them as he expected of himself. As Professor Olatunde Johnson wryly recounts of her clerkship with him: “We discussed the cases vigorously. He listened to us carefully and graciously; it often seemed hard to change his mind.”104 104.Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020).Show More His legacy rests for the present on the example he set. It offers, within the legal profession, an alternative to the divisive politics that mark the current era. Whether it is an alternative that will be embraced or forsaken in American public life remains to be seen. His memoirs demonstrate exactly what is at stake in this choice.

  1. * John Barbee Minor Professor of Law, University of Virginia. I clerked for Justice Stevens in the 1975 term of the Supreme Court. ↑

  2. Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020). ↑
  3. Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27]. ↑
  4. John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases). ↑
  5. Id. at 143 (conceding a mistake in one of five capital cases decided the same term). ↑
  6. Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment). ↑
  7. 12 Edward Coke, Reports of Sir Edward Coke 65 (1738). ↑
  8. Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015). ↑
  9. David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020). ↑
  10. The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id. at 18. ↑
  11. Id. at 35–41, 53–59. ↑
  12. Id. at 61–68. ↑
  13. Id. at 69–92. ↑
  14. Id. at 107–10, 124–32. ↑
  15. Id. at 101–06. ↑
  16. Id. at 107–08. ↑
  17. Id. at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned). ↑
  18. Barnhart & Schlickman, supra note 16, at 139, 193, 252. ↑
  19. Id. at 220–22. ↑
  20. The Making of a Justice, supra note 3, at 81. ↑
  21. He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican). ↑
  22. He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id. at 141–44, 476–77. ↑
  23. Peñalver, supra note 20, at 765. ↑
  24. 429 U.S. 190 (1976). ↑
  25. 467 U.S. 837 (1984). ↑
  26. 554 U.S. 570 (2008). ↑
  27. Craig, 429 U.S. at 197. ↑
  28. Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting). ↑
  29. Id. at 211–12 (Stevens, J., concurring). ↑
  30. 518 U.S. 515, 531 (1996) (internal quotation marks omitted). ↑
  31. The Making of a Justice, supra note 3, at 155. ↑
  32. Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review). ↑
  33. Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument). ↑
  34. Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting). ↑
  35. Lawrence, 539 U.S. at 561. ↑
  36. Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting). ↑
  37. United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982). ↑
  38. Rostker v. Goldberg, 453 U.S. 57, 58 (1981). ↑
  39. Nguyen v. INS, 533 U.S. 53, 56 (2001). ↑
  40. Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military). ↑
  41. Codified at 42 U.S.C. §§ 2000e et seq. (2012). ↑
  42. 435 U.S. 702 (1978). ↑
  43. Id. at 708–10. ↑
  44. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting). ↑
  45. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012). ↑
  46. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983). ↑
  47. UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991). ↑
  48. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)). ↑
  49. The Making of a Justice, supra note 3, at 155. ↑
  50. WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006). ↑
  51. 545 U.S. 469 (2005). ↑
  52. The Making of a Justice, supra note 3, at 431. ↑
  53. WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020). ↑
  54. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted). ↑
  55. Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)). ↑
  56. Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”). ↑
  57. Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment). ↑
  58. Id. at 445–46 & n.29 (majority opinion). ↑
  59. City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting). ↑
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). ↑
  61. 5 U.S.C. § 706 (2012). ↑
  62. Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017). ↑
  63. Cardoza-Fonseca, 480 U.S. at 445–46 & n.29. ↑
  64. Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46. ↑
  65. The Making of a Justice, supra note 3, at 205. ↑
  66. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision). ↑
  67. Auer v. Robbins, 519 U.S. 452, 461–63 (1997). ↑
  68. United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”). ↑
  69. King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges). ↑
  70. Gonzales v. Oregon, 546 U.S. 243, 268 (2006). ↑
  71. United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment). ↑
  72. 307 U.S. 174 (1939). ↑
  73. Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178). ↑
  74. Heller, 554 U.S. at 624. ↑
  75. Id. at 679 (Stevens, J., dissenting). ↑
  76. Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”). ↑
  77. Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”). ↑
  78. The Making of a Justice, supra note 3, at 485. ↑
  79. Heller, 554 U.S. at 586. ↑
  80. Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019). ↑
  81. Id. at 10–15. ↑
  82. Heller, 554 U.S. at 679–80 (Stevens, J., dissenting). ↑
  83. The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground). ↑
  84. The Making of a Justice, supra note 3, at 485. ↑
  85. William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10. ↑
  86. Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901). ↑
  87. Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”). ↑
  88. 517 U.S. 44, 84 (1996) (Stevens, J., dissenting). ↑
  89. Id. at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute). ↑
  90. Six Amendments, supra note 82, at 146–47. ↑
  91. 528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part). ↑
  92. Id. at 97–99 (Stevens, J., dissenting in part and concurring in part). ↑
  93. 561 U.S. 742 (2010). ↑
  94. District of Columbia v. Heller, 554 U.S. 570, 636 (2008). ↑
  95. 561 U.S. at 767. ↑
  96. Id. at 763–66. ↑
  97. 427 U.S. 160, 173 (1976). ↑
  98. Codified at 42 U.S.C. § 1981 (2012). ↑
  99. 392 U.S. 409, 420–21 (1968). ↑
  100. Runyon, 427 U.S. at 190–91 (Stevens, J., concurring). ↑
  101. Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district). ↑
  102. United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting). ↑
  103. Six Amendments, supra note 82, at 15–17. ↑
  104. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”). ↑
  105. Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020). ↑

Redefining the Relationship Between Stone and AEDPA

This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have analyzed Fourth Amendment violations under a different legal regime than that used for other constitutional violations challenged on habeas corpus. This has persisted despite passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which amended the federal habeas corpus statute for state prisoners, 28 U.S.C. § 2254. Federal courts have largely held that AEDPA has not changed the relationship between Stone’s holding and Section 2254. This Note argues that the current conception of federal habeas corpus review of Fourth Amendment claims is fundamentally inconsistent and asserts that the AEDPA standard should be applied to Fourth Amendment claims brought by state prisoners.

Introduction

On June 17, 2013, the Baton Rouge Police Department received an unconfirmed anonymous tip that Cedric Spears was trafficking cocaine and in possession of a firearm in his home.1 1.Spears v. Vannoy(Spears I), Civ. No. 15-495-SDD-RLB, 2018 WL 2423017, *1 (M.D. La. Apr. 30, 2018).Show More Two police officers obtained Spears’s criminal history, confirmed only that he was a convicted felon, and, without a warrant, proceeded to his apartment complex.2 2.Id.Show More The officers waited in the parking lot until just before midnight to approach the apartment, when, coincidentally, Spears opened the door.3 3.Id.Show More The officers spotted a gun in his apartment.4 4.Id.Show More After officers gathered Spears and the apartment’s other occupants into a central location and patted them down, Spears was handcuffed and read his rights.5 5.Id.Show More

Spears admitted to owning the gun.6 6.Id.Show More On November 4, 2013, he was convicted on one count of felon in possession of a firearm and was sentenced to eighteen years of hard labor without benefit or probation, parole, or suspension of sentence.7 7.Id.Show More Spears filed a pro se appeal to the Louisiana Court of Appeal for the First Circuit, arguing that the trial court wrongly denied his motion to suppress the evidence resulting from the illegal warrantless search.8 8.Id.Show More His appeal was denied.9 9.Id.Show More He then petitioned for supervisory review in the Louisiana Supreme Court.10 10.Id.Show More His petition was denied.11 11.Id.Show More Spears then filed a pro se petition for federal habeas corpus relief in the Middle District of Louisiana.12 12.Id.Show More This petition was denied, as well.13 13.Spears v. Vannoy(Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018) (adopting the magistrate judge’s report and recommendation).Show More

In denying Spears’s habeas petition, the federal court simply stated that Fourth Amendment violations are “generally not cognizable on federal habeas review.”14 14.Spears I,2018 WL 2423017, at *2.Show More This categorical denial is based on the Supreme Court’s 1976 decision in Stone v. Powell,15 15.428 U.S. 465 (1976).Show More which held that a state prisoner may not be granted federal habeas corpus relief based on a Fourth Amendment violation “where the State has provided an opportunity for full and fair litigation of [that] Fourth Amendment claim.”16 16.Id. at 482, 494.Show More Despite Spears’s claim of a “defective warrant”—or lack of a warrant—the court held that the Fifth Circuit only requires the trial court to provide “an opportunity” to litigate one’s claim, nothing further.17 17.Spears I, 2018 WL 2423017, at *2–3.Show More A mere opportunity to litigate a Fourth Amendment claim in state court is all that is required for a federal court to refuse to even consider a state prisoner’s habeas petition.18 18.Id.at *2 (citing Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)).Show More In Spears’s case, the federal district court went on to deny him a certificate of appealability, terminating his one remaining option.19 19.Spears v. Vannoy(Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018).Show More Despite no search warrant and arguably no probable cause to approach the house, Cedric Spears was searched, tried, convicted, and sentenced to eighteen years in prison.20 20.Spears I,2018 WL 2423017, at *1, *3–4.Show More And the federal court would not even entertain his petition for habeas corpus.

As displayed in Spears’s case, federal courts currently hold Stone v. Powell to be controlling when state prisoners allege a Fourth Amendment violation on habeas. All other constitutional violations, on the other hand, are adjudicated under a different standard provided by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).21 21.Pub. L. No. 104-132, 110 Stat. 1218. AEDPA amended 28 U.S.C. § 2254, the sole statute governing habeas corpus review for state prisoners; thus, “the AEDPA standard” refers to the standard of review enacted as a result of the passage of AEDPA and is codified at 28 U.S.C. § 2254(d).Show More The two regimes have at least one primary difference. While Stone restricts the cognizance of such habeas petitions, AEDPA at least allows federal courts to review the petitioner’s claim. Fourth Amendment violations are the only constitutional violations not litigated under the AEDPA standard. Therefore, if Spears was alleging a due process violation or bringing a claim for ineffective assistance of counsel, his case would at least have been heard by a federal court rather than dismissed as not cognizable.

This Note argues that the current approach adopted by the federal courts is incorrect in light of AEDPA. Instead of looking to Stone for guidance, federal courts should adopt the AEDPA standard for habeas review in the context of alleged Fourth Amendment violations. This presents a rare opportunity to right the current course of the federal courts. With this approach, federal courts would treat Fourth Amendment violations the same as every other constitutional violation with respect to federal habeas petitions, instead of relegating Fourth Amendment claims to a lower tier.

Adopting the AEDPA standard will provide four primary benefits. First, this change will simplify the process for state prisoners. This is especially important for those representing themselves pro se, like Cedric Spears. Holding alleged Fourth Amendment violations to a different standard than all other constitutional harms only further complicates an already complex area of law that affects many criminal defendants.22 22.According to a study funded by the United States Department of Justice, state prisoners file about 16,000 to 18,000 habeas petitions every year. Unfortunately, a breakdown by constitutional violation is not available. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study, 2000–2006, at ii, iv (2013), https://doi.org/10.3886/ICPSR21200.v1 [https://perma.cc/Z7RS-AECM].Show More Second, it would resolve a split among the federal circuits as to how to interpret the meaning of the Court’s language in Stone, and thereby create a uniform, national standard of review. A uniform, national standard is vitally important because where one’s claim is brought should not determine whether that state prisoner has access to federal habeas review. Third, adopting the AEDPA standard will allow state prisoners to actually have their federal habeas petitions reviewed, rather than denied without consideration, as Spears’s was. As a matter of procedural justice, all habeas petitioners deserve the right to be heard, regardless of the nature of their claim. Litigants, especially pro se litigants, can use this Note as a roadmap to challenge the current legal regime and, hopefully, have their petitions heard by the federal courts.

Finally, adopting this approach will allow any future statutory reform to current habeas corpus law to include claims alleging violations of the Fourth Amendment, rather than continue to leave them behind. Fourth Amendment violations are treated differently than all other constitutional violations. While all other constitutional violations are governed by AEDPA, Fourth Amendment violations are treated as outside the statutory scheme. Adopting this approach, however, brings Fourth Amendment violations back into the fold of AEDPA alongside all other constitutional violations. If federal courts continue to treat Fourth Amendment violations as outside of the AEDPA statutory scheme,23 23.See infra Part III.Show More then future habeas reform will not affect habeas petitions alleging Fourth Amendment violations. Thus, if the language of AEDPA is amended, under this proposed approach, the statutory reform would not further widen the gap between how Fourth Amendment claims are treated and how all other constitutional claims are treated.

As explained below, the two regimes—review under AEDPA and review under Stone—currently produce similar outcomes;24 24.See infra Section II.C, Part III.Show More however, future changes to the AEDPA standard could yield different outcomes for Fourth Amendment violations and all other constitutional violations. Adopting the AEDPA standard will have truly tangible benefits to defendants, practitioners, and judges even if it may not have an enormous impact on the number of federal habeas petitions ultimately granted for state prisoners.25 25.See infra Part III.Show More As one commentator has put it, habeas corpus has played an “important role . . . as a postconviction remedy” and has the “unique nature and suitability . . . to bring about transformative change.”26 26.LeRoy Pernell, Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions,69 Mercer L. Rev. 453, 453 (2018).Show More

Surprisingly, despite the significant academic attention dedicated to federal habeas corpus, little attention has been focused on the collateral review of alleged Fourth Amendment violations. Much of the post-AEDPA academic literature identifies and defines the standard set forth in AEDPA,27 27.See e.g.,John H. Blume, AEDPA: The “Hype” and The “Bite,” 91 Cornell L. Rev. 259, 272–73 (2006); Evan Tsen Lee, Section 2254(d) of the Federal Habeas Statute: Is It Beyond Reason?, 56 Hastings L.J. 283, 283 (2004); Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA’s Standard of Review Operate After Williams v. Taylor?, 2001 Wis. L. Rev. 1493, 1495.Show More further defines the standard set forth in Stone independent from AEDPA, 28 28.See e.g.,Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 141 (2012); Justin F. Marceau, Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications, 62 Hastings L.J. 1, 17, 26–27 (2010).Show More or argues for an overhaul of the current federal habeas system altogether.29 29.See e.g.,Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 797 (2009).Show More Some of the nation’s leading federal courts textbooks do not even specifically address this issue.30 30.See, e.g., Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation 141–50 (2013) (failing to discuss the issue); Peter W. Low et al., Federal Courts and the Law of Federal-State Relations 966 (9th ed. 2018)(speculating only that AEDPA “may have introduced a subtle but not fundamental change in the meaning of Stone v. Powell”).Show More

Only one scholar has touched on the relationship between Stone and AEDPA. In a 2006 article, Professor Steven Semeraro argued that the historical changes in the treatment of the exclusionary rule, which is the primary vehicle by which courts remedy Fourth Amendment violations, coupled with the changes to habeas practice generally, require that Stone be overruled.31 31.Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, 58 Rutgers L. Rev. 983, 1016–18 (2006). Professor Semeraro also notes that “there has been remarkably little historical analysis directed at the judicial treatment of collateral search-and-seizure claims.” Id. at 984–85.Show More Professor Semeraro’s argument is primarily focused on Stone’s deficiencies in modern litigation and the reasons that decision should be overturned rather than, as this Note argues, the reasons why AEDPA specifically should replace it.32 32.See id. at 986.Show More This Note examines the various possible solutions to reconciling the language of Stone with the text of AEDPA and argues for a clear, simple, statutory text-based rule for the federal courts to follow.

Part II of this Note reviews the legal history of the availability of habeas corpus relief for violations of the Fourth Amendment. It summarizes the evolution of federal habeas corpus law from the Supreme Court’s landmark decision in Brown v. Allen,33 33.344 U.S. 443 (1953).Show More to its Fourth Amendment carve out in Stone v. Powell, to the enactment of AEDPA. Part III describes the current approach taken to federal habeas petitions brought by state prisoners alleging a violation of the Fourth Amendment and why there is a need for change. Part IV analyzes two possible solutions to reconciling the standard set forth by AEDPA with the Stone decision. Finally, Part V proposes that federal district courts adopt a third solution and hold that the AEDPA standard replace Stone’s framework with respect to Fourth Amendment claims going forward.

  1. * J.D., University of Virginia School of Law, 2019. I would like to extend a special thanks to Professor Peter W. Low for supervising my research, for without his help, this would not be possible. Thanks are also owed to Olivia Vaden, Zachary Ingber, Spencer Ryan, and Jessie Michelin for their helpful feedback and unwavering support throughout this process. ↑

  2. Spears v. Vannoy (Spears I), Civ. No. 15-495-SDD-RLB, 2018 WL 2423017, *1 (M.D. La. Apr. 30, 2018). ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. ↑
  9. Id. ↑
  10. Id. ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. Spears v. Vannoy (Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018) (adopting the magistrate judge’s report and recommendation). ↑
  15. Spears I, 2018 WL 2423017, at *2. ↑
  16. 428 U.S. 465 (1976). ↑
  17. Id. at 482, 494. ↑
  18. Spears I, 2018 WL 2423017, at *2–3. ↑
  19. Id. at *2 (citing Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)). ↑
  20. Spears v. Vannoy (Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018). ↑
  21. Spears I, 2018 WL 2423017, at *1, *3–4. ↑
  22. Pub. L. No. 104-132, 110 Stat. 1218. AEDPA amended 28 U.S.C. § 2254, the sole statute governing habeas corpus review for state prisoners; thus, “the AEDPA standard” refers to the standard of review enacted as a result of the passage of AEDPA and is codified at 28 U.S.C. § 2254(d). ↑
  23. According to a study funded by the United States Department of Justice, state prisoners file about 16,000 to 18,000 habeas petitions every year. Unfortunately, a breakdown by constitutional violation is not available. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study
    , 2000–2006,

    at ii, iv (2013), https://doi.org/10.3886/ICPSR21200.v1 [https://perma.cc/Z7RS-AECM]. ↑

  24. See infra Part III. ↑
  25. See infra Section II.C, Part III. ↑
  26. See infra Part III. ↑
  27. LeRoy Pernell, Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions
    ,
    69

    Mercer L. Rev.

    453

    , 453 (2018). ↑

  28. See e.g., John H. Blume, AEDPA: The “Hype” and The “Bite,” 91 Cornell L. Rev. 259, 272–73 (2006); Evan Tsen Lee, Section 2254(d) of the Federal Habeas Statute: Is It Beyond Reason?, 56 Hastings L.J. 283, 283 (2004); Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA’s Standard of Review Operate After Williams v. Taylor?, 2001 Wis. L. Rev. 1493, 1495. ↑
  29. See e.g., Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 141 (2012); Justin F. Marceau, Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications, 62 Hastings L.J. 1, 17, 26–27 (2010). ↑
  30. See e.g., Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 797 (2009). ↑
  31. See, e.g., Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation
    141–50

    (2013) (failing to discuss the issue); Peter W. Low et al., Federal Courts and the Law of Federal-State Relations

    966

    (9th ed. 2018) (speculating only that AEDPA “may have introduced a subtle but not fundamental change in the meaning of Stone v. Powell”). ↑

  32. Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus,
    58

    Rutgers L. Rev. 983, 1016–18 (2006). Professor Semeraro also notes that “there has been remarkably little historical analysis directed at the judicial treatment of collateral search-and-seizure claims.” Id. at 984–85. ↑

  33. See id. at 986. ↑
  34. 344 U.S. 443 (1953). ↑
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