Enforcing the Constitution

"John Marshall has made his decision; now let him enforce it!" (Apocryphal quote attributed to Andrew Jackson)

The most famous example of the problem faced by the courts in enforcing their rulings against an unwilling government is Andrew Jackson’s defiance of the Supreme Court verdict in Worcester v. Georgia, leading to the seizure of Cherokee land and the forced march of the Cherokee to what is now Oklahoma, the Trail of Tears. The problem that still exists, most recently raised by Lujan Grisham, Governor of New Mexico, announcing that, as an emergency health measure, citizens would not be permitted to carry firearms  in the county that contains the city of Albuquerque. 

After the Supreme Court banned affirmative action in university admissions:

Meanwhile, Harvard, UNC’s co-litigant, has looked for ways to keep discriminating, and so have many other institutions. They focus on one sentence of the court’s ruling: “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

Harvard responded to the decision by citing this line in isolation, suggesting it would treat it as a loophole. The university said it would comply with the law but reaffirmed its commitment to diversity, commenting, “we will determine how to preserve, consistent with the Court’s new precedent, our essential values.”

That was widely interpreted as a declaration of intent to evade the court ruling.

Enforcing the Supreme Court’s view of the Constitution was a problem I had been thinking about after reading arguments online from cynical right wingers. They argued that Supreme Court decisions in support of their interpretation of the Second Amendment did not matter since a state could, New York, they claimed, did, pass a law effectively preventing most citizens from owning firearms, enforce it until the case made it to the Supreme Court and the law was declared unconstitutional, then repeal it and pass another law achieving the same result through some different mechanism.

A recent decision of the Fifth Circuit held that the Federal government under the Biden administration had blatantly violated the First Amendment by pressuring social media to suppress posts arguing for positions the government disapproved of. The Court imposed constraints on future acts of various government agencies but no penalties on anyone for past actions.

One Solution

The obvious, and emotionally satisfying, solution to the problem is to penalize governments and government actors who are found to have violated the Constitution. Let the New York Post collect damages from the relevant federal agencies and/or their responsible employees for pressuring Facebook and Twitter to suppress the Post story on Hunter Biden’s laptop. Jail Governor Grisham for violating the Second Amendment — deliberately, thus satisfying the intent requirement of criminal law.

Looking at the relevant statutes, however, it looks as though something close to that is current law. Under 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, …

Under 18 U.S.C. § 242:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

The criminal version is limited to violation of rights under color of law for specific reasons that would not apply to Governor Grisham but the civil version has no such restriction.

And Problems with It

It is an emotionally satisfying solution but it has problems.

A year before Roe v. Wade was decided by the Supreme Court, a doctor is found guilty of providing abortions and jailed. Reading  42 U.S.C. § 1983 literally, the day after the decision he can sue the state, the police officer that arrested him, and any jail guard who had a role in keeping him imprisoned, and collect damages from all of them.  All of them, after all, subjected him to the deprivation of what the court has now decided is a right secured by the Constitution.

That is not how the statute is in practice applied. The state is protected by sovereign immunity. The police officer and the jail guard are protected by qualified immunity since they could not know in advance how the Supreme Court was going to rule. There are circumstances when the statutes get applied, even with criminal penalties,¹ but that tends to be the exception, not the rule.²

Other Solutions

There are at least two other solutions to the problem. One is for a judge to enjoin enforcement of an unconstitutional law shortly after it is passed, as U.S. District Court Judge David Urias in fact enjoined Governor Grisham’s order, blocking its enforcement five days after it was issued. Another is for the government agents responsible for enforcing a law they consider unconstitutional to refuse to do so, as the Albuquerque police chief and the county sheriff did.

Either of those works if the relevant people in the court and enforcement systems view the law as unconstitutional and are more committed to the constitution than to the political system that produced it, as was the case in New Mexico. Neither worked to protect the Cherokee. In an increasingly polarized population, they may work less well in the future. If the legislature of a very blue state passes a law that violates the Second Amendment a little less transparently than Grisham did or if Texas tries to impose its governor’s view of proper immigration policy in ways inconsistent with existing federal law, it is not clear that lower level judges will be willing to intervene or state agents unwilling to enforce. Even if the legal system does intervene, the political actors may choose to ignore its rulings.

"John Marshall has made his decision; now let him enforce it!"

How Not to Weaponize the Legal System

A second problem is illustrated by the multiple law suits against ex-President Trump. One, for deliberately keeping possession of classified documents, looks like a fairly straightforward case, but three others are enough of a stretch that they can be, by Trump supporters will be, interpreted as one side of the political division weaponizing the criminal law against the leader of the other side. Of the charges against Trump, none are obviously for constitutionally protected acts and at most two could be argued to be. All of them can be, are, viewed by a substantial fraction of the population as the use of the legal system for political purposes. A situation where a large fraction of the electorate sees that as what is happening is, I think, more corrosive to functioning democratic order than anything Trump has done.

That perception may not be a mistake even for the charge for which, as I read the evidence, Trump is obviously guilty. There are a lot of laws in our society, not all of which are enforced all of the time against everyone. The claim that the average American commits three felonies a day is probably an exaggeration, but an exaggeration of a real problem. A faction with control over a court system can use it against its opponents by selective prosecution, enforcing all of the law against them, much less against its allies.

Trump is being prosecuted for withholding classified documents, which is indeed illegal. But George Bush publicly admitted that he knowingly used information obtained by the National Security Agency in violation of the Foreign Intelligence Surveillance Act, which is a felony, and neither he nor the NSA agents responsible has been indicted. James Clapper, Director of National Intelligence, lied under oath to Congress but was never charged with perjury.

That suggests that a prudent, if arguably unjust, policy, followed in the past, is to avoid whenever possible prosecuting major political figures. Letting Trump commit murder would be carrying it too far but perhaps refraining from criminal charges for unauthorized possession of classified documents would not be. That is something other top level political figures have done without being prosecuted — although in his case it was deliberate, in theirs perhaps not. It is a stronger argument for avoiding any prosecution that can reasonably be viewed as dubious, such as the current prosecution in New York.

1. For example in Screws et. al. vs United States, where a sheriff and two deputies deprived a black teenager of protected rights by beating him to death.

2. For a detailed discussion of the application of 42 U.S.C. § 1983  to a real case, see DOES v. Whitmer, 69 F4th 300.