The Unexceptionalism of 'Evolving Standards'

55 Pages Posted: 10 Jul 2009 Last revised: 26 Apr 2016

Corinna Lain

University of Richmond - School of Law

Date Written: July 10, 2009

Abstract

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the 'evolving standards of decency' doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely, and explicitly, bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court’s majoritarian tendencies, the most powerful evidence of the Court’s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine.

Suggested Citation

Lain, Corinna, The Unexceptionalism of 'Evolving Standards' (July 10, 2009). 57 UCLA Law Review, Vol. 57, p. 365, 2009. Available at SSRN: https://ssrn.com/abstract=1432612

Corinna Lain (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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