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American Exceptionalism

Is the Constitution of the United States a uniquely American document, defined with reference to American history and ideals, or is it a port for courts to plug into some universal Cosmic Consciousness and set the American people straight when we, in our ignorance, stray too far from what the judges know the world knows is right?

The American exceptionalism view got a big boost today, and the universality view took a big hit in the guns case, McDonald v. City of Chicago.  From Justice Alito's majority opinion (emphasis in original):

"In answering [the incorporation] question, as just explained we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty...."

Justice Stevens sees it differently.
Justice Stevens wants to revive, he says, Justice Cardozo's test from Palko v. Connecticut, a test abandoned during the Warren Court incorporation rush. And he wants to give it a distinctly universalist spin.

Implicit in Justice Cardozo's test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a "rational continuum" of legal precepts, Poe, 367 U. S., at 543 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular.
"Practices of other civilized societies" are important in deciding whether an asserted right meets the test. "Local" and "particular" values, i.e., American values, cannot be given too large a role.

But what about trial by jury, the self-incrimination privilege, the Miranda rule, and, most of all, the exclusionary rule of Mapp v. Ohio?  We can point to lots of civilized societies that don't have these rights. How can they be incorporated?

Well, criminal procedure is just different, says Justice Stevens. Why?  "The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue."

Huh? There is no need for uniformity in criminal procedure generally. States can and do make their own rules of procedure and evidence, and the Court has acknowledged many times that the principle of federalism requires it to refrain from imposing uniformity in most matters. Is the margin for error slimmer? Perhaps if questions of actual guilt or innocence are at issue, but most of the Court's most controversial criminal procedure rules, such as Mapp and Miranda, operate to free clearly guilty people with little benefit for innocent defendants.

And is Mapp really a rule of criminal procedure within Justice Stevens' rights framework, anyway?  It is not intended to provide a fair procedure for the determination of guilt. Unlike the other criminal procedure rights, which are protected for their role in providing fair process, Mapp exists solely as a safeguard for a substantive right, the right to be free of unreasonable searches and seizures. So Justice Stevens' substance/procedure dichotomy doesn't really work, even on its own terms.

American exceptionalism won today, but only by one vote.

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