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Does the Constitution’s Original Meaning Prohibit a State from Abolishing the Insanity Defense?
Mike Rappaport

Mike Ramsey recently posted on the Kahler v. Kansas case, which raises the issue whether a state can eliminate the insanity defense.  Mike concluded that the original meaning does not protect against eliminating the insanity defense under the Eight Amendment or the Due Process Clause:

After considering this question a bit more, it seems to me that actually this long-standing practice is irrelevant from an originalist perspective.  Kahler is challenging his conviction under the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process).  But the insanity defense is part of the substance of the offense.  It is neither procedural nor an aspect of punishment.

It cannot be that states must conform the substance of criminal law to what prevailed at the founding.  States routinely create new offenses and modify existing offenses by changing their elements or eliminating defenses.  That these changes may alter traditional approaches is not a matter of constitutional concern.

I have some sympathy for Mike’s argument, but I believe there is a potentially strong argument for concluding that the original meaning prohibits the insanity defense under the Privileges or Immunities Clause. 

As I have indicated previously, I adopt “the prevalent rights view" of the Privileges or Immunities Clause.  “Under this view ‘the privileges or immunities of citizens of the United States’ – refers to the rights that are prevalent throughout the United States at a particular time.  To determine what those rights are, one must look at what rights the states . . . protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.”

There are two versions of this view.  The static view holds that a right is protected by the Clause if it was protected by the great majority of states or virtually all states at the time of the enactment of the 14th Amendment.  (Perhaps the right also needed to have been protected for an extended period of time leading up to the 14th Amendment.)  Under this view, those rights were protected when the Amendment was enacted and cannot be taken away.

The dynamic view is similar but holds that the rights protected can change over time.  If a right that was not protected by virtually all states at the time of the 14th Amendment comes to be protected by virtually all states at a later point, it then becomes a privilege or immunity of citizens of the United States.   

I am not sure whether I hold the static or the dynamic view, but the insanity defense might be protected under either view.  If the insanity defense was protected by virtually all states at the time of the 14th Amendment, then it would be a privilege or immunity that could not be taken away.  Under the dynamic view, if the defense is protected by virtually all states at present, then it is a privilege or immunity that cannot be taken away. 

So I believe there are serious original meaning issues raised by the case.  Of course, the resolution will turn on how widely the insanity defense was actually protected by the states during the relevant period.  I have not explored that question.