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The Supreme Court's "Three Strikes" Opinion: Another Strike for Federalism

Thursday, Mar. 13, 2003

Last week, the Supreme Court issued a decision in Ewing v. California, the case that raised a constitutional challenge to California's "three strikes" law, which mandates life imprisonment for those who have committed three felonies. In a 5-4 ruling, the Court upheld the California law.

Much of the coverage of the decision has been devoted to the question of whether the Court's holding on the Eighth Amendment "cruel and unusual punishment" issue was correct. Sensationalistic recountings of the facts have suggested that California had put a man away for life for stealing three golf clubs. But that is an exaggeration, to say the least. Gary Ewing had four previous, serious felonies when he was imprisoned for life pursuant to the "three strikes" law.

In the midst of the hoopla, an important aspect of the decision has been largely overlooked. For years, in the federalism cases (first in dissent and now in the majority), the conservative members of the Court have been working out a list of arenas where the states hold presumptive (though not absolute) power. So far, criminal law and public education appear to belong to that group.

Last week's three-strikes decision added to the list. It suggested that it is generally up to the states, not the federal government - including the federal courts - what penalties are to be imposed for state criminal law violations. The resort to this federalism principle, which delineates the boundary line between the federal government and the states, is actually more significant than the Eighth Amendment holding in Ewing.

Federalism and the Court: A Brief History

In considering Ewing as a federalism - not just an Eighth Amendment - decision, it's worth going back to look at why we have a federal system in the first place. The basic reasons were adeptly summarized by Alexis de Tocqueville, who wrote that:

The obligations and the claims of the Federal government were simple and easily definable because the Union had been formed with the express purpose of meeting certain great general wants; but the claims and obligations of the individual states, on the other hand, were complicated and various because their government had penetrated into all the details of social life. The attributes of the Federal government were therefore carefully defined, and all that was not included among them was declared to remain to the governments of the several states. Thus the government of the states remained the rule, and that of the confederation was the exception.

This summary is true to our constitutional text and history. Within it is the seed of the modern Supreme Court's doctrine, expressed in Ewing, that the federal government as a general rule should not interfere with the states' administration of criminal justice.

Only recently has the Court been loyal to this foundational principle. Indeed, from 1935 until 1995, Congress and the Court walked through Alice's looking glass and inverted the constitutionally-prescribed relationship between the federal government and the states. The federal government was permitted, in Tocqueville's words, to "penetrate[] into all the details of social life" while state powers were the "exception" to federal plenary power. The Depression spurred this development, the court-packing plan cemented it, and the eager embrace by Congress and policy elites of newly-found power entrenched it.

The result was that Congress was enthroned as the savior of the people, while the states were seen as its lowly stepsisters. The United States Congress and the people began to think of legislation as a one-stop shopping expedition; Congress was an all-inclusive buffet that offered every conceivable policy fix to every citizen.

Then, in 1995, with the Supreme Court's decision in United States v. Lopez, the Rehnquist Court finally returned to the original - and proper - constitutional understanding. The lowly stepsister states, it made clear, had actually been Cinderellas all along - neglected for too long, but now receiving their rightful recognition.

Many criticized the Court's move, but in truth, the Court was only being loyal to the Constitution, after so many years. No one has had the heart or the guts to say it, but those who attack the federalism decisions would gladly write out of the constitutional formula any meaningful role for the states. They think the Framers were wrong. (And they are more than willing to alter the Framers' formula with or without the amendment procedures required under Article V.)

Modern Decisions: Distinguishing "Truly National" From "Truly Local"

Returning to constitutional first principles after so many years left the Court with a pressing question: What was the best way to finally institute some reasonable limits on congressional power, and to define the states' sphere of power?

In Lopez, Chief Justice Rehnquist indicated how the line was to be drawn: The Court's focus, he noted, should be on trying to identify what is "truly national" and what is "truly local," and to distinguish the two. In drawing this line, he properly tracked the Constitution itself.

As Tocqueville noted, in the Constitution, "[t]he attributes of the Federal government were ... carefully defined, and all that was not included among them was declared to remain to the governments of the several states." Obviously, that left to the Court the task of defining the "attributes" of the federal government, and of the states, respectively. That the Court did not attempt that task from 1935 until 1995 is staggering. That it did attempt it, in the end, should be applauded.

The five Justices in the Ewing majority were Chief Justice Rehnquist and Justices O'Connor, Kennedy, Thomas and Scalia. There was a three-member plurality opinion authored by Justice O'Connor, and joined by Rehnquist and Kennedy. Thomas and Scalia concurred in the judgment, and wrote separate opinions explaining why. There were also two dissents - one authored by Justice Stevens, one by Justice Breyer.

It was fitting that Justice O'Connor wrote for the three-member plurality, for she is the heart and soul of the federalism revival. And in her opinion, she set forth a key principle that it best seen as not only an Eighth Amendment principle, but a federalism principle as well.

Eighth Amendment doctrine has long held that a punishment can be "cruel and unusual," and hence a constitutional violation, if it is not proportional to the offense punished. For instance, a mandatory ten-year sentence for stealing a stick of gum would be a plain Eighth Amendment violation.

However, as Justice O'Connor explained in her plurality opinion, that doctrine applies differently to sentences of imprisonment (including life sentences) - as opposed to sentences of death. When it comes to noncapital sentences, Justice O'Connor wrote, only a "narrow proportionality principle" applies. In other words, the courts must give latitude to the legislative body to determine what the punishment should be.

That means that if it is a state punishing - as was the case with California's "three strikes" law - latitude must be accorded to the state legislature. Isolating this principle clearly shows that this is a federalism decision: It requires federal courts - even the Supreme Court - to defer to a state legislature's decision in a province, the punishment of state crimes, that properly belongs to the state.

Meanwhile, concurring Justices Scalia and Thomas would have gone even further in the direction of federalism and deference to the states. Their concurrences made clear that they would not have applied any version of proportionality - narrow or broad - to state sentencing requirements in the first place.

What Really Divided the Ewing Court

Commentary on Ewing has noted how the case sharply divided the Court. But it has largely missed why that was so. The disagreement was not about how serious it is to steal golf clubs, as the press has caricatured it. It was about federalism.

The more liberal members of the Court read the Eighth Amendment to provide a stiffer proportionality standard than Justice O'Connor would have imposed. The reason is that they are working from a vision of the constitutional universe that is diametrically opposed to the one to which the five majority Justices subscribe. Put simply, it is because they have a different concept of federalism than that of the majority Justices (and frankly, of the Framers.)

If that seems heartless, it's worth remembering that the States have their own Constitutions, which they may interpret as they choose, and their own courts to enforce them; it is not as if state criminal power is unchecked.

Meanwhile, the four dissenting Justices seemed to think federalism was not even an issue. Like the press, they focused on the fact that, in their opinion, a life sentence was not an appropriate penalty for stealing golf clubs. Again, that misstates the facts - the correct question is whether a third, or in this particular case, a fifth felony conviction might reasonably be thought to deserve life imprisonment.

More fundamentally, it also avoids the question the majority took very seriously: Is it the place of the federal courts, according to the Constitution, to act as an oversight committee for state criminal punishments? Is it the proper role of the U.S. Supreme Court, interpreting the U.S. Constitution to set themselves up as a policy review board for California criminal law, opining on which penalties are fitting, and which are too great? The U.S. Supreme Court, after all, already has its bailiwick: federal crimes.

The Court further looked to the three-strike punishment schemes in other states, which emphasized one of the prime reasons for federalism. It makes it possible for the states to operate as laboratories for public policy; the states can watch and learn from one another as they try different paths to the same ultimate good, the public good. With a single, centralized government, only one policy approach gets tested at a time, and experimentation is necessarily limited.

Ewing illustrates that the federalism majority of the Court has a vision. According to that vision, federalism is not limited to particular doctrinal pigeonholes, but is "inherent" throughout the Constitution. Thus, although Ewing was not a case under one of the "federalism Amendments," such as the Tenth or the Eleventh, the majority properly saw it as implicating federalism concerns nonetheless.

That vision goes right back to the Framing. It a vision of dual sovereignty - of power shared by the states and the federal government - that was instituted by the Framers. As the majority understands, it is a structure principle that runs through the entirety of the Constitution. That principle can only be vindicated when it is taken into account across the range of constitutional issues.

Thus, in the future, commentators should be on the watch for federalism issues across a wide range of Court decision, implicating various amendments. Areas over which the states have had longstanding control - such as land use, state and local prison oversight, and family law - are areas in which the majority of the Court is likely to be loath to intervene, no matter what constitutional provision is offered as a pretext for doing so.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Copyright 2003 Marci A. Hamilton. Her previous columns, including those addressing federalism, can be found on the archive of her columns on this site. Her email address is

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