Wrong and Unconstitutional

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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12 Responses

  1. JKM says:

    Depictions of animal cruelty are clearly very wrong. Congress agreed and made a law prohibiting them. Although that something, depicting animal cruelty, is wrong, the Court held it constitutional. See United States v. Stevens (2010).

  2. Gerard Magliocca says:

    Animal cruelty can be prohibited. The problem in that case is that prohibiting depictions that involve sexual arousal is hard to define, though I try to steer clear of First Amendment doctrine in my own research and am not that familiar with the case.

  3. matth says:

    I think this post seems overly-categorical because some types of bad policy just aren’t bad in a way that intuitively “implicates” the constitution.

    In this sense, the Eighth Amendment, the Due Process Clause, and the Equal Protection Clause are exceptions. The constitutional doctrines arising from those clauses make certain types of policy “wrongness” constitutionally-significant: discrimination against socially-salient minorities, attempts to regulate a few, narrow categories of sexual behavior, and attempts to impose a few rare types of punishment.

    But most types of policy wrongness don’t implicate the constitution, even in the face of a social or elite consensus at least as broad as the consensus in favor of, say, abortion rights, or against the death penalty, or in favor of marriage equality. There’s much, much more room to be “wrong” in non-constitutionally-salient areas. Farm subsidies, special interest pandering in the tax code, and ridiculous occupational licensing rules are constitutional, no matter how obviously bad policy they are.

  4. Gerard Magliocca says:

    The problem is your use of the word “obviously.” Even Newt like ethanol subsidies now. Lots of those economic regulations have plenty of support.

  5. Howard Wasserman says:

    JKM is on to something–the First Amendment (particularly the Speech and Press clauses) may be the one glaring exception or counter to Gerard’s argument. The First Amendment takes all sorts of pride in protecting scoundrels and scandalous speech and in taking a “this speech is wrong and unlawful and horrible, but that does not make it unprotected.” And the flipside to this is that a law or state action designed to stop this speech–which we might call a state action that is “right”–is nevertheless unconstitutional.

  6. Gerard Magliocca says:

    Yeah, I suppose that’s true, at least in the First Amendment’s modern form.

  7. TJ says:

    Gerard, I like the idea, but I think you need to soften it. I buy that whether Justices think that something is clearly awful is a big, perhaps the big, driver of what they think is unconstitutional. But two qualifications are pretty evident. First, you put in the limit “if the issue is subject to judicial review,” which is itself a dodge since whether something is subject to judicial review is partly a judicial decision. Second, you put aside the question of whether there is a “consensus” that something is “clearly awful.” But things that everyone agrees is clearly awful, and which the political branches would still want to do (so that the action is subject to judicial review) is pretty much non-existent, so this almost never comes up. What does come up is its opposite: things that everybody likes but the court rules is constitutionally forbidden, which are all the First Amendment cases that everyone raises. So your principle is actually focusing mostly on that category, and while that category is non-existent, its relative smallness tends to prove your point.

  8. TJ says:

    Typo: the last sentence should read: “that category is not non-existent”

  9. matth says:

    “Lots of those economic regulations have plenty of support.”

    Sure, but lots of them are at least as uncontroversially bad policy as, say, LWOP for non-homicide juvenile offenses, or marriage discrimination. (If the test for being bad policy is, “No politician supports it,” then I should think the question wouldn’t come up very often.)

    Does it seem plausible that LWOP for non-homicide juvenile offenses is less defensible on the policy merits than the most clearly rent-seeking local licensing law from the last 30 years? If the policy merits determine constitutional outcomes, that’s the position you’re committed to, since I’m unaware of any rebirth of the doctrine of substantive economic due process.

  10. A.J. Sutter says:

    1. What about the issues of slavery, prohibition and suffrage? Clearly at sometime there were people who thought that what was explicitly in the Constitution was wrong, since the first two were repealed, and the latter expanded, by amendment.

    2. Are unconscionable contracts unconstitutional? Is assault unconstitutional? Or anything that most folks would consider wrong but that falls within an area of jurisdiction reserved to the states? I don’t think that the “folks” of whom you’re talking about would distinguish issues on the basis of judicial review by the Court. In that sense there probably are some things that are wrong but that aren’t unconstitutional. Which makes the legitimacy question you raise all the more interesting.

  11. Gerard Magliocca says:

    I probably should have called this post “Too Wrong to be Constitutional.”

    Well, slavery and Prohibition did lead to serious legitimacy problems for the Constitution. Suffrage isn’t so relevant since the states were always free to extend voting rights — the Constitution never prohibited that. (That’s not a complete answer to all of the points raised in the thread, of course. I hope to have this draft done soon though.)

  12. S.M. Abeles says:

    Off the top of me head, Kelo, Lily Ledbedder, likely result in Snyder v Phelps this term–all wrong, all constitutional. May want to revisit whole notion versus just watering down the thesis.