Does the Constitution have a Geography Clause? How can rights mean different things in different places?

If the Constitution is in fact the Supreme Law of the land, why should it mean different things in different places.

This concept is most prevalent in First Amendment jurisprudence where obscenity law considers “contemporary community standards.”  Something may be obscene in Bismarck, North Dakota, but not obscence in San Francisco, California based on some nebulous concept of local standards.

This is clearly correct under modern First Amendment Supreme Court jurisprudence, but is it correct constitutionally? Does the Constitution permit the rights of a citizen of North Dakota to free speech to differ from the rights of a Californian? Does this seem right.

The Government takes full advantage of these different standards, and frequently prosecute obscenity trials in more socially conservative areas. See this Volokh post on the Obama Administration shifting away from this tactic.

Another common application of this doctrine pervades gun control laws. Pundits frequently argue that Chicago needs different gun laws than Cheyenne. Candidate Obama frequently made this point on the campaign trail. Heller seems to adopt this notion. But why? Where in the Second Amendment is there a carve-out for local concerns.

Does the Fourth, Fifth, or Sixth Amendment mean something different in New York or Los Angeles? All other rights seem to be universal, except the First and Second Amendments. These are two of my favorite liberties, so this is troubling.

As an aside, it strikes me that one could make a plausible argument that the “contemporary community standards” test for obscenity violates the Equal Protection Clause to the extent that it necessarily results in different determinations of what is obscene, depending upon locale. Yes, I know that geographic location is not a suspect class, but I see no reason why it couldn’t be, especially when it results in rather arbitrary distinctions as to what is or is not criminal under Federal Law.

This is a topic I would like to develop further. Stay tuned.


2 Responses to “Does the Constitution have a Geography Clause? How can rights mean different things in different places?”

  1. Do Rights Mean Different Things in Different Places? My Friend’s Harv.L.Rev. Note Says Yes, and Persuades Me « Josh Blackman's Blog Says:

    […] Note Says Yes, and Persuades Me October 15, 2009 — Josh Blackman This morning I blogged, and asked whether the Constitution has a geography clause, and whether  it was correct that […]

  2. Dennis Paul Hamm Says:

    Mr. Blackman: Demographics have everything to do with the first, and second. Look up open carry for Wisconsin, and it will tell you to expect to get arrested for disorderly conduct. You have caused concern, and unrest within the community, (274). I’m going to carry an empty holster and see if they’ll have the gonads to make an arrest; for inconvenience sake only. Since there are facsimile laws; (66.0409), to avoid arrest, empty may be the way to go. Now the justice of the first amendment, just go down south and try to tell bubba anything. With out of state plates, you know where you’ll be.

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