“Of Two Minds: the Supreme Court’s Divergent Approach to Constitutional Mens Rea”

The title of this post is the title of this new article authored by Rachel Barkow just posted to SSRN. Here is its abstract:

Constitutional law is typically conceived as a set of individual rights and a list of powers given to and restrictions on the government.  What typically goes unnoticed is that the Supreme Court often limits rights and narrows restrictions on the government by insisting that someone bringing a constitutional challenge demonstrate not only that they were harmed or that the government overstepped its bounds, but also that the governmental actor behaved with an improper mental state, or what criminal law refers to as mens rea.  These mens rea requirements are Court creations. On closer inspection, the Court’s rationales for insisting on mens rea requirements often fall short of justifying them and amount to little more than a backdoor way to undercut a constitutional right or avoid a constitutional remedy. This should be disconcerting to anyone who cares about the robust protection of the constitutional right at issue.

The Court’s eagerness to impose mens rea requirements on constitutional claims is troubling for another reason: it stands in sharp contrast to its unwillingness to establish constitutionally required mens rea requirements for substantive criminal law either as a matter of due process or pursuant to the Eighth Amendment when an individual faces incarceration.  The Court has instead allowed legislatures to set mens rea requirements or dispose of them to further public policy as they see fit.  For example, the Court has accepted strict liability offenses that impose terms of incarceration without a mens rea requirement and has dismissed the notion that the insanity defense is constitutionally required when criminal punishment is at stake.  If the Court truly cared about the history and tradition of fault and blame, it would be just as vigilant in policing legislative definitions of crime as it has been in imposing its own mens rea thresholds for constitutional claims.

This article will argue that, if anything, the Court has mens rea backward. It should be insisting on mens rea before individuals are punished with incarceration, and it should refrain from imposing judge-made mens rea requirements that undercut constitutional rights.