Working Paper No. 11-39:
The Perils of Over-Constitutionalizing the Law: A Reply to Professor Epstein

Author(s):

Jonathan Mitchell

Date Posted: September 2011

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Abstract:

In “Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance”, I advance two primary claims. First, the Supreme Court’s categorical unwillingness to consider state-law reversals is nothing more than a self-imposed constraint from its 1874 decision in Murdock v. City of Memphis; this rule cannot be found in any of the external constitutional or statutory commands that limit the Supreme Court’s authority. Second, the status quo Murdock regime has induced the justices to issue questionable federal constitutional rulings in cases that they could have resolved more easily on state-law grounds. In a generous and spirited response, Professor Epstein defends the Murdock regime and attacks “the constitutional trope of ‘avoidance’” on which my claims largely rest. Professor Epstein’s defense of the status quo is based on a sunny assessment of the Supreme Court’s Murdock-induced constitutional pronouncements. It also rests on an unstated belief that Murdock will lead future Supreme Courts to issue constitutional rulings that he will find agreeable. But it is much harder for others to share Professor Epstein’s warm embrace of the Court's Murdock-induced constitutional rulings—especially the adherents of originalism, Thayerism, minimalism, or common-law constitutionalism. And no one should believe that channeling future Supreme Court rulings into federal constitutional law is likely to produce happy endings. There is simply no way to know whether the Supreme Court in 2020 will resemble the Warren Court, the Roberts Court, or something else. Behind this veil of ignorance, a move away from Murdock represents a prudent risk-management strategy, a means of reducing the likelihood of bad constitutional entrenchments from a future Court whose composition cannot be known or controlled.