Cumulative Constitutional Rights

By Abrams, Kerry; Garrett, Brandon L. | Boston University Law Review, July 1, 2017 | Go to article overview

Cumulative Constitutional Rights


Abrams, Kerry, Garrett, Brandon L., Boston University Law Review


Introduction

It would be convenient if all constitutional cases were straightforward: a plaintiff complains that a single constitutional right has been violated by a single action. Life, however, is messy, and so is constitutional law. Often a plaintiff's claim is complex. Perhaps several discrete acts, taken together, have violated a constitutional right. or perhaps a single act violated multiple constitutional provisions. In some cases, the harm alleged may not result in relief without considering the interplay of various constitutional provisions. All of these instances are examples of the litigation of what we term "cumulative constitutional rights."

Cumulative constitutional rights cases are everywhere, although they often go unnoticed as such. The right to a fair trial, for example, can be violated through a series of interrelated but separate, seemingly minor procedural irregularities. Sometimes activity that could be described as the free exercise of religion is also free speech or freedom of association. Litigants raising First Amendment or Fourteenth Amendment Equal Protection Clause claims also routinely assert a due process violation concerning the arbitrary denial of the underlying right. Indeed, many of the Supreme Court's most famous rulings, ranging from the free exercise case Employment Division v. Smith1 to the criminal procedure case Miranda v. Arizona2 to the sexual liberty case Lawrence v. Texas,3 are cases concerning cumulative constitutional harm.4

Despite their ubiquity, these cases are widely criticized and maligned as doctrinally incoherent. Scholars have critiqued the cases in formalist terms, cautioning that the Court should be more careful to distinguish between specific rights and to avoid blurring the lines between rights.5 And judges, including some Supreme Court Justices, have proven wary of arguments about cumulative rights. Even when the Supreme Court appears to be engaging in a cumulative rights analysis, lower courts often attempt to disaggregate the rights when applying the precedent to new cases.6 To many, decisions involving cumulative constitutional harm seem outrageous, arbitrary, or even lawless, and, at minimum, not to be taken seriously.7

The critics are not entirely wrong. After all, a cumulative approach could result in the paradox that a weak claim brought under a single constitutional provision would be denied relief, but the same weak claim would be granted relief if it could be pled using two constitutional provisions rather than just one. Commentators have thus characterized cumulative claims as creating a "twofor-one sale" where "two losers equal one winner."8 In particular, scholars have criticized much of the Court's constitutional family jurisprudence-from the contraception cases such as Griswold v. Connecticut9 and Eisenstadt v. Baird10 to the more recent LGBT rights cases such as Lawrence and United States v. Windsor11-for failing to specify with adequate precision the constitutional right at stake.12

Recently, the Supreme Court made an attempt to clarify some of this confusion. In its opinion in Obergefell v. Hodges,13 the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual autonomy, the right to intimate association, and the safeguarding of children.14 And although Justice Kennedy's opinion focused primarily on due process, it also acknowledged that the rights in question were simultaneously grounded in equal protection. "The Due Process Clause and the Equal Protection Clause are connected in a profound way," Justice Kennedy wrote.15 "In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right."16 In Obergefell, the Court has more definitively made the link between equal protection and due process that commentators have observed for decades. …

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