Recent Commentary from Inter Alia

In Crawford v. Washington, the Supreme Court radically transformed Confrontation Clause doctrine. Immediately after Crawford, commentators predicted dire consequences for criminal prosecutions. These predictions have been renewed after each refinement of Crawford’s doctrine. So far, however, the sky has not fallen, because prosecutors and courts have managed to reconcile Crawford’s robust confrontation rights with the practical imperatives of criminal prosecution.

This Essay argues that the Court’s recent decision in Bullcoming v. New Mexico threatens the uneasy balance between prosecutorial needs and the Crawford line. Specifically, Bullcoming could be used to exclude DNA database evidence in prosecuting cold cases. DNA evidence has been used in criminal prosecutions for only a few decades, but it has revolutionized criminal justice during that time. DNA evidence has been particularly important for prosecuting rape cases, which historically have low conviction rates. Prosecutors should therefore be concerned that they might lose an essential tool for prosecuting rape cases and seeking justice for victims. Defense attorneys have a stake, too. When prosecutors lose access to DNA evidence, they are more likely to turn to less reliable eyewitness testimony and circumstantial evidence.

I argue that state legislatures and Congress can ensure that DNA evidence is available in cold-case prosecutions while simultaneously respecting defen­dants’ post-Crawford confrontation rights. Specifically, both state and federal policy makers should alter rules of evidence to include decades-old DNA database evidence under ancient document exceptions to hearsay rules.

In order to eliminate the perception that “justice is for sale,” Justice at Stake—and everyone who believes that fair and impartial courts are essential to the preservation of a functioning democracy—must work to achieve the reforms necessary to insulate judicial candidates from the perception that their decisions are unduly influenced by campaign contributions. Perhaps most importantly, we must do everything possible to help our fellow citizens understand that, unlike elected legislative representatives and other elected officials, judges are not selected or elected to “represent” citizens’ views but rather are mandated to consider the facts in each case carefully and apply the law to those facts fairly and impartially.

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden. Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to impose novel and extra-textual limits upon Congress’s enumerated powers. As this Part makes clear, a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. Lopez and United States v. Morrison. Unlike Lopez and Morrison, cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.

Part II dives even further back into constitutional history. It explains that a growing number of prominent conservatives, including many current Members of Congress, want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried. Under these conservatives’ vision of congressional power, cherished federal spending programs such as Social Security, Medicare, Medicaid, and Pell Grants would all cease to exist. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.