CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 20, 2015

Abrams & Garrett on Cumulative Constitutional Rights

Kerry Abrams and Brandon L. Garrett (University of Virginia School of Law and University of Virginia School of Law) have posted Cumulative Constitutional Rights on SSRN. Here is the abstract:

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet, judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its recent landmark opinion in Obergefell v. Hodges, 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, while also noting how 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 Anthony Kennedy wrote. What the Court did not do was to explain the connection. To redress harms to injured plaintiffs without creating doctrinal incoherence, courts need to understand the categorically distinct ways in which cumulative constitutional harm can occur and how these forms affect constitutional scrutiny. We argue that cumulative constitutional rights cases can be categorized into three general types and that these types need to be analyzed differently. The first type, aggregate harm, occurs when multiple discrete acts, taken together, add up to a harm of constitutional magnitude, even if each individual act, taken alone, would not. The second type, hybrid rights, occurs where a plaintiff claims a single action has violated rights under multiple constitutional provisions. If a court were to apply the proper level of scrutiny to the claims individually, however, none would result in redress. As a result, hybrid rights cases should not ordinarily result in relief. The third type, which we term intersectional rights, occur when the action violates more than one constitutional provision but is only cognizable when the provisions are read to inform and bolster one another. Our aim in this Essay is to provide a framework courts can use to analyze cumulative constitutional rights. While courts should be open to conducting a cumulative analysis, when constitutional rights are mutually reinforcing, those relationships should be clearly set out and defined.

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