A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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June 27, 2005More Supreme Court actionSupreme Court bars Ten Commandments at courthouses The conservatives are on a losing streak. This time it was O'Connor who defected. For the record, I agree with the decision and, in fact, didn't think that it even should have been a close question. UPDATE: In another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas capitol, O'Connor joined the conservative block. So, we have a split decision. (Link.) Posted by Todd Pearson at June 27, 2005 11:16 AMComments
I'm down with this. As near as I can tell, they seem to be affirming my view, which is that not all displayed items must be construed as establishment, and that genuine history can be displayed even if it includes religion. In other words, establishment should not be automatically assumed by mere presence, and avoiding establishment should not extend to a demand for whitewashing historical fact. Contra Scalia, that seems to me like a solid principle. However, the description of the statue has me wondering whether they erred in allowing it as an example of reasonable display within an historical context. I'd need to see the grounds. Posted by: bk at June 27, 2005 12:13 PMI'm a tad bit disappointed here. I wish it wasn't a 5-4 decision, but we take what we can get. I'm not completely opposed to a religious statue, as long as it is surrounded by statues of other religions and cultures--kind of how it is within the Supreme Court. When it comes to these Roy Moore-type monuments, erected specifically as an "in your face" expression of Christianity, I have a serious problem with it. Of course, James Dobson is salivating with this. He can already hear the money rolling in. This will be exploited as an attempt by the "liberal courts" to stifle Christianity. Somehow they always seem to forget the 2nd Commandment--Thou shalt not make unto Thee any graven image. Posted by: AR at June 27, 2005 01:27 PMfunny thing is that only 2 of the commandments are reflected in our laws and they're the ones that even predated the 10 C's in law anyway. Posted by: marcus at June 27, 2005 01:57 PMHmm, I have at least 4: 1.You shall not kill. 5 if you count the following as bearing upon the development of obscenity: You shall not take the name of the LORD your God in vain; for the LORD will not hold him guiltless who takes his name in vain. 6 if you count the following as bearing upon the development of property rights (a stretch given 4, granted): You shall not covet your neighbor's house; you shall not covet your neighbor's wife, or his manservant, or his maidservant, or his ox, or his ass, or anything that is your neighbor's. Posted by: bk at June 27, 2005 02:15 PMBk: The court took care of that last one last week. I covet my neighbor's house. Now I just need to get the city to condemn it and transfer ownership to me. Posted by: tim at June 27, 2005 02:29 PMI just posted about how some of the opinions (particularly O'Connor's in McCreary and Breyer's in Van Orden) epitomize judicial pragmatism and centrist principles. Context is key, etc. Quite a neat pair of decisions, actually. The only semi-surprising thing for me from today was that O'Connor didn't join the majority in Van Orden; from her opinion in McCreary she certainly could have gone that way. A very interesting last day of the term! Posted by: JBD at June 27, 2005 02:31 PMUPDATE: In another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas capitol, O'Connor joined the conservative block. So, we have a split decision. UPDATED UPDATE: Breyer was the swing vote in this case. (Link) The media must have assumed that O'Connor would be the swing vote since she so often is, because I first heard it was O'Connor on WNYC this morning only for it to be corrected. For what it's worth, Noah Feldman was on the Brian Lehrer show this morning talking about the role of religion in public life in America. His comment on the two Ten Commandments cases was that the only difference was that the Texas display, having been there for over 50 years and thus well established whereas the Kentucky display was not. (Link) Posted by: Scott Smith at June 27, 2005 02:56 PMThe court took care of that last one last week. I covet my neighbor's house. Now I just need to get the city to condemn it and transfer ownership to me. Lol! God save this honorable court. Posted by: AR at June 27, 2005 03:21 PMPoint of order: Justice O'Connor wasn't the swing vote in van Orden v. Perry, Justice Breyer was. This mistake is ricocheting around the net like you can't believe. Someone at CNN likely just assumed that since someone changed their vote, it must have been Justice O'Connor. Posted by: Simon at June 27, 2005 03:25 PMYeah the media's big oops in assuming O'Connor was the swing vote in each case really has taken on a life of its own. CNN was definitely phrasing it that way for a while, as were some of the early AP articles on the cases. As I said above, I'm sort of surprised she didn't join Breyer and make that one 6-3. Posted by: JBD at June 27, 2005 03:36 PMsaying that some displays inside courthouses would be permissible if they're portrayed neutrally in order to honor the nation's legal history. But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.Maybe if they'd bought one of those cheap frames at Target it would've been ok. I do have to admit I'm having are hard time figuring out who are the "extremists" on the court. Just when we have somone pegged they flip to the other side. Can't they sit still!! Finally, is it a good thing to be a centrist/pragmatist on the Surpreme Court. I'm confused. Will future courts be also. Is "it depends" a good legal principle for the Surpreme Court to use? Question for those who uphold the unconstitutionality of the 10 commandment displays. Do you differentiate between a bad policy/choice and an unconstitutional one? I think I am in agreement that symbols like "Roy's rock" are bad ideas and should be scrutinized. But I really can't find where it violates the first amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Having a 10 commandment monument does not establish a religiong nor does it prohibit free exercise. And even if it did, these monuments are not being passed by Congress but rather at a state level. I can see how it violates the "separation of church and state" but those words are conspicuously absent from the Constitution. I think this is a good example of judges putting what they want to be policy into the Constitution. These debates should take place in elections with the will of the people (even if I disagree with them) taking precedence. When will we see more judges say "this is a bad idea, but the Constitution permits it." Shame the legislators. Posted by: doverspa at June 27, 2005 04:27 PMDoverspa raises an interesting point. The 14th Amendment explicitly incorporated the substantive and procedural guarantees of the US Constitution. But is everything in the Constitution incorporated? Permit me a flight of fancy. I To many, enumeration meant that by listing the powers, the committee [on detail] foreclosed others; that authority not granted was authority not posessed. It meant that Congress should have these powers and no others. On the other hand, it has also been interpreted to mean that the Congress alone should have these powers [that are enumerated], and that no-one else, not the other branches of government and not the states, shoud have them. It has been seen [by some] as a reinforcement of separation of powers.But in either of those interpretations, one fact undeniably holds true: a power granted to the Congress by the Constitution may be excercised by the Congress and only the Congress. Cf. Gibbons v. Ogden, 22 U.S. 1 (1824). Interestingly, this language opens up an implied right. The Congress "may establish ...uniform Laws on the subject of Bankruptcies throughout the United States"; therefore, if the Congress has that power, and the Congress alone, a state bankruptcy law at variance with the Federal bankruptcy law is void. You therefore have an implied right not to be prosecuted under the state law when it is at variance with the Federal law. You have the right to have your bankruptcy hearing conducted by the Federal Courts. II But one amendment - the 1st - is different. The first amendment is directed specifically to the Congress. It says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." This is very interesting, because it was written at the same time as the other nine amendments in the bill of rights, and was ratified at the same time as the other nine amendments in the bill of rights. Yet it's different. The 2nd Amendment doesn't say, "Congress shall make no law infringing the right of the people to keep and bear arms", it says, "the right of the people to keep and bear arms, shall not be infringed". The 4th Amendment doesn't say "Congress shall pass no law abridging the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures", it says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". The sixth amendment does not say "Congress shall make no law abridging the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed", it says "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed". Yet the first amendment lists some more things that CONGRESS may not do, seemingly in continuation of Article I §9. III * * * Thomas Jefferson was of the opinion that: On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.I do not know if the suggestion I have made above as to the construction of the 1st Amendment - i.e. that it restricts only the United States, and not any one state - is accurate. I haven't researched the matter enough, and this is only a thought. But my point is this: we must do as Jefferson advised. To determine the best answer to a question and then go to the text in search of a justification for that answer is precisely the wrong way to approach the Constitution. Any answer must be grounded in the text itself, and what the text meant at the time it was adopted. What, then, does the establishment clause mean? It clearly means that the Congress could never establish a "Church of the United States". But in all other questions, a degree of interpretation is required, and in that regard, we should look to the original meaning of the text. I think that Justice Rehnquist's dissent in Wallace v. Jafree, 472 U.S. 38 (1985) remains definitive on that score, in my view - because whether or not it's correct, it at least applies the correct process to discovering an answer. The function of the Judge is not to find the best answer - it's to find the answer provided in the Constitution. Posted by: Simon at June 27, 2005 06:29 PMSimon, Sorry, but I'm obliged to singe the wings of your flight of fancy (if one were to make an Icarus reference). First, your Gibbons analysis is defective. Gibbons does not stand for the proposition that, where Congress has constitutional authority to legislate, Congress and only Congress may legislate. It is true, of course, that where Congress has authority to legislate, and it does legislate, Congressional legislation preempts all state legislation to the contrary. But your assertion, if accurate, would negate a wealth of Dormant Commerce Clause and Preemption constitutional jurisprudence (for better or worse). Perhaps your ConLaw prof skipped Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299 (1851). Your 14th Amendment analysis is also defective. The 14th Amendment, Sec. 1, proscribes States from making or enforcing laws abriding privileges and immunities, or depriving life, liberty, or property without due process. The 14th Amendment incorporations of federal protections, therefore, are distinguished along an axis of "what are rights of the States" versus "what are rights of the people," and only those portions of the preceding Constitution pertaining to the latter are incorporated against the States. Art. I, Sec. 9 contains prohibitions against Congress pertaining to implied protections of both States and people--as comparing only the first two clauses of that section would demonstrate. But, fortunately, incorporation of Sec. 9 need not trouble our uneasy minds, because where the Founders intended to proscribe States, they enumerated the proscriptions in Sec. 10. It is settled law that the 1st Amendment is incorporated through the 14th Amendment to apply to States, particularly with the rights and freedoms enumerated therein which must, per force, be rights "of the people" and not "of the States"--peaceable assembly, petition for redress, and freedom of speech and the press. There is room for reasonable people to disagree about the incorporation of the first clause, but dissents are never "definitive" on any score. Posted by: The Jaded JD at June 27, 2005 09:02 PMThe function of the Judge is not to find the best answer - it's to find the answer provided in the Constitution. Allow me to once again wholeheartedly and entirely disagree with Simon's unrelenting originalism. First, in this specific instance, I think the now fairly well-established (pun intended) idea that government endorsement of religious views is an instance of establishing religion is fantastic, and most importantly, a very reasonable interpretation of the constitution. Moreover, I think that under current circumstances, it's plainly demonstrable that we're being very well served by this standard. And second, as to the general form of Simon's cherished originalism... I find Simon's suggestion that the constitution be viewed as a clear and obvious rulebook that any monkey could adhere to to be both insulting and patently false. I am certain that Simon goes into rhapsodies when Clarence Thomas says things like "this would be an easy decision if you went by a strict reading." (Thomas said something very like this in his reasoning about one of these recent decisions.) The constitution is not the ultimate good, it's not an end in itself, it's a means. Simon wants us to deify the constitution. It's not the top priority that Clarence Thomas's or any other judge's job be easy. I want judges to work hard, and think, and debate. And stand on the shoulder of both the constitution and the legal giants who have divined its intent in the face of widely varying degrees of clarity and specificity. The constitution should obviously inform, and limit, and set important standards. But IMO there is PLENTY of room for balancing original intent with current circumstances, and there's also plenty of NEED. Judges should not use absolutely strict interpretation as an excuse to refuse to provide redress when reasonable interpretation allows them to do so. The constitution functions astonishingly well as a leash with a little stretch in it, a leash tethered to the people as they move through life and history. It does not need to be a thick stone wall. Unless we want the constitution to be our prison. Brian, I couldn't agree more. I guess I compare it to the Bible. For many, they adhere to this strict, literal, unrealistic interpretation of the good book. There is no room for modern context, despite the vast differences between the time periods and culture for the original audience. The Contitution is much the same way. It lays a basic framework. The principles established within that framework provide the basis for reconciling today's needs with yesterday's norm. Abortion, Homosexuality, Internet File Sharing...none of these things were adressed in the original document. They didn't exist as they do today. Do we simply say "it doesn't appear, so we don't consider it?" No. The justices simply take the principles established and reconcile them with todays needs. Posted by: AR at June 28, 2005 10:57 AMAbel, the Biblical literalists have to also shut their minds to the massive amount of internal contradictions in the Bible. Nothing else can allow them to pick and choose their personal "literal" interpretation. "Selective reading." Posted by: Tully at June 28, 2005 12:14 PMBK, I have to vehemently disagree with you (and therefore agree with Simon) it was NOT the intent of the Framers to replace one man in purple robes who created law by fiat with nine men in black robes who would do the same thing. The Revolution was not fought for that. Our government is a government of the People.... not of the Courts. It is the job of the People (through it's elected representitives) to create law. The Courts should restrict themselves to making sure that law is applied... AS IT WAS CREATED by the true source of legitimate authority in our nation..... THE PEOPLE. If the Court takes upon itself the practice "discovering" new meaning in the law because "current circumstances" would benefit from it..... then there is nothing to stop them from "discovering" ANY new meaning in ANY law and using "current circumstances" as an excuse to rationalize it.... and therefore rob the People of control over thier own government. That is how dictatorships begin... If we go down your road(Which I think we already significantly have), we might as well do away with representative government altogether and re-instate the Monarchy. The effect would be the same. Posted by: cengel at June 28, 2005 01:52 PMI'm going to partially conceed the point (Jaded JD's), re Gibbons; having read it anew, I must do so, as it explicitly contradicts my position in the previous post (22 U.S. 1, at 35). However, Gibbons does say: The powers vested exclusively in Congress are, (1.) Those which are granted in express terms. (2.) Those which are granted to the United States, and expressly prohibited to the States. (3.) Those which are exclusive in their nature.[Ibid.] ...A power exclusive in its nature, is said to be repugnant and contradictory to a like power in the States. This repugnancy exists only in cases where a State cannot legislate, in any manner, or under any circumstances, under a given power, without conflicting with some existing act of Congress, or with some provision of the constitution.[Id. at 37]But, cf. Wabash, St. Louis & Pacific Railroad Company v. Illinois, 118 U.S. 557 (1886), at 563: The court further holds as matter of law that the transportation in question falls within the proper description of 'commerce among the states,' and as such can only be regulated by the congress of the United States under the terms of the third clause of section 8 of article 1 of the constitution of the United States.'(Emphasis added). See also, id., at 577: if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character; and the regulation can only appropriately exist by general rules and principles, which demand that it should be done by the congress of the United States under the commerce clause of the constitutionMy view - and I don't see that Gibbons is necessarily in conflict with this, as I shall explain, is that the state governments gained almost unfettered power in the Revolution, and ceded those powers enumerated as belonging to the United States when they ratified the United States Constitution. See generally, Gibbons, supra, at 9-34. I part way with Gibbons in that I believe that there is a de jure negative on the ability of the States to implement powers granted to the United States, while Gibbons says that there is merely a de facto negative on the same. Marshall writes that the states cannot legislate in areas where the excercise of such authority would be incompatible with powers granted to Congress. This encompasses, in my view, all powers granted to Congress, and none more so than the commerce clause: Congress is granted permission to regulate, as it sees fit, interstate commerce. It excercises the whole of that authority by those activities it chooses to regulate and those which it does not. There is no scope for state action in regulating interstate commerce; that power is exclusive to the Congress. Likewise, can the states collect monies "to pay the debts and provide for the common defence and general welfare of the United States"? Can they "borrow money on the credit of the United States"? And so on. Congress makes the rules it considers appropriate and necessary within its sphere of action, and when it declines to act, it still acts to the full capacity of its powers. Ironically enough, this view places me at explicit odds with one of my originalist bretheren, Justice Thomas. Q.v. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997) (Thomas, J., dissenting). This gives me some pause, as does the contradiction in Gibbons; I fully admit the possibility that I may yet be wrong, and I have more research to do in this matter. Original meaning allows room for practise to breathe life into uncertain provisions of the text, and if my research shows that, for the thirty-five years of the Republic prior to Gibbons, nobody ever thought that the granting of a power to Congress negated the ability of the states to so legislate in that sphere, then I'm wrong. Incidentally, Brian: while I'm always delighted to be told repeatedly how wrong I am, perhaps you could explain why. Twice in the last few days, you've argued that originalism is wrong, without explaining wy it's wrong, why the living constitution is better, and without rebutting my counter-arguments as to why the living constitution is a bad idea (here and here). Just a reminder. I realize that you may have better things to do, but I think it only fair to point out that I've not only explained why originalism is a good idea, but poked some pretty major holes in the Living Constitution theory, and all you've offered thusfar is "wrong, wrong, wrong"! ;) Posted by: Simon at June 28, 2005 02:22 PMThe idea that any allowing interpretation of written statutes is the same as the abilty to discover ANY meaning is just out and out hyperbole. It's nonsense. I agree that IF expansive interpretation could lead to ANY result , it would be bad. But I don't find it to be remotely reasonable that interpretation of words means that ANY interpretation can occur. To say this is to express a kind of nihilism regarding the meaning of words and our ability to communicate. If you really believe that, why speak? Why write?Why even try to communicate? How does it come to pass that I find myself arguing with 2 obvious conservatives, and yet within their views is concealed postmodernist nihilistic CRAP? Sometimes the constitution is vague, and the system calls on judges to act to provide justice, and that's what they should do. If worst comes to worst, the judges decide wrongly. But if they do, it was because the constitution was unclear. In this case, the apprpriate remedy is the available means of redress. You can amend the constitution. If the cause of the error was a constitutional flaw of vagueness, isn't redress of this flaw the proper solution. Whether it be eminent domain, interstate commererce, or something else, how can anyone reasonably argue that anything would be a better solution than for all of us, now, to determine what we want the constitution to dictate, if its past iteration was insufficient. As long as self-corrective properties exist, what's the problem? Posted by: bk at June 28, 2005 02:28 PMYou're absolutely right to bring up the biblical analog. Read The Original Understanding of Original Intent by H. Jefferson Powell for extensive discussion. Where the Bible is concerned, I think that original meaning is still an appropriate lense for reading that text. Certainly, it becomes a much more involved task, because that text has been transliterated and translated so many times. Also, there is a serious difference in that original intent would be the accurate lense through which to approach the Bible, while original meaning would be the lense through which to view the Constitution. It should be obvious that the meaning of the Bible does not change from the message originally conveyed from God to its authors. Obviously if you don't believe in God, Jesus and the Bible, then no problem - but if you do believe that any of the Bible is the word of God, then it should be obvious to you that you must believe all of it. For two reasons: first, because you can't change the word of God; it is what it is, and the Lord has generally made a habit in that book of addressing people in the context of the culture and time at which he addressed them. If the Bible is the word of God, and you determine that you're not going to follow a part of it, then either a) you don't actually believe that it's the word of God, or b) you believe that you can unilaterally alter the terms of the Covenant between you and the almighty creator of the universe. I think the former to be foolish, and the latter an act of extreme arrogance. If God exists, and he has a covenant with mankind, when God deems it necessary to alter the Covenant, I'm sure he will do so on his terms, in his own time. He's done it before. Second - what is your criterion? I agree that some people claim to be Jews or Christians, and they reject certain parts of the Bible, which they say are mistranslated, or suffer from being written down by men. Those are certainly valid problems. But I don't know what criterion can possibly be used to say that this section is valid while that section isn't. That it agrees with your sociopolitical views? That can't be accurate. You don't dictate policy to God, you can't simply void a section of the bible you disagree with, any more than Justice Stevens should be able to void the emminent domain theory. one must accept the text in toto or reject it in toto.
Brian - what self-corrective mechanism is it that you have such faith in? Where and when has its operation been demonstrated? What is it, in your view, which shackles the living constitution judge? Clearly it isn't what's actually in the constitution - substantive due process allows the court to declare anything it likes to be a constitutional right. Clearly, it isn't the actual text, because the court has shown willing to go so far as to void specific constitutoinal protections. I agree that IF expansive interpretation could lead to ANY result , it would be bad. But I don't find it to be remotely reasonable that interpretation of words means that ANY interpretation can occur.The 4th Amendment says that you have the right to be confronted with witnesses against you. Maryland v. Craig decided that you did not have the right to be confronted with all the witnesses against you. A right explicit in the text no longer exists at this time. The 5th Amendment says that government can excercise its power of emminent domain it furtherence of public use. Kelo v. New London says that the state can take your private property for any purpose. Another protection explicit in the constitution, gone. These may not be ANY interpretations, but they are fairly far-flung. As for originalism being an analog of conservatism, that's flat-out wrong. Do you think Scalia likes flag burning because he voted to strike down the flag burning law in Texas v. Johnson? Do you think that Justice Thomas wants to allow freer access to internet child porn because of his opinion in Ashcroft v. Free Speech Coalition? Do you think Justice Black thought that the Connecticut statue at issue in Griswold was a marvellous idea just because he could see that it wasn't unconstitutional? Originalism is not conservatism, it is simply an acknowledgement that we should be governed in accordance to the United States Constitution. I'm not opposed to change - the difference in our positions appears to be that I think law should rest on the consent of the governed. My theory provides for the consent of the governed by allowing only for elected assemblies to pass laws. I'm sure that you also believe laws should rest on the consent of the governed, but since you're willing to let judges change the law, I'm not sure how the governed express their consent in your system? By failing to impeach the judges? By failing to pass constitutional amendments that overrule the Supreme Court's rulings? I think that to be placing the cart before the proverbial horse. Posted by: Simon at June 28, 2005 02:56 PM"As long as self-corrective properties exist, what's the problem?" BK, simply put because under the governing philosophy you would propose... They DON'T ANYMORE. There is nothing to stop a Justice for treating your new ammendment with any less irreverence for it's origional intent and meaning then they did for the origional. ............ "To say this is to express a kind of nihilism regarding the meaning of words and our ability to communicate. If you really believe that, why speak? Why write?Why even try to communicate? How does it come to pass that I find myself arguing with 2 obvious conservatives, and yet within their views is concealed postmodernist nihilistic CRAP?" You are actualy turning my meaning on it's head here, BK. My very arguement here is that words DO have very specific meaning and which can convey the very specific intent of the writer. The words which make up our Constitution most certainly do. The very root of my arguement is that "Living Constitution" Justices IGNORE the specific meaning and intent of the words which make up our Constitution. Rather they TORTURE the plain and simple language with which it was written to INVENT new meanings from it (often times directly contrary to the origional spirit and language of the origional text). Words are SUPPOSED to convey specific meanings. However, a clever advocate IF ALLOWED TO will find a way to torture such language to twist whatever meaning he happens to find convenient in it. This is specificly my complaint against "Living Constitution" judges. Do I really have to point out the abilities of clever advocates to do so in an age where we have had sitting Presidents debating the meaning of the word "is"? ............................. "Sometimes the constitution is vague, and the system calls on judges to act to provide justice, and that's what they should do. " There may be some cases where this is true....and if Justices really limited themselves to such my cause for complaint would be significantly lessened. However we have already crossed that line a thousand-fold. More often then not, the Constitution is crystal clear in it's meaning.... and "Living Constitution" Justices simply choose to IGNORE said meaning because it is inconveniant to the END which they are attempting to achieve. That exactly is my cause for complaint. We seem to be rewarding such Justices by continuing to send thier ilk to the Bench. That is EXACTLY what conservatives like myself are fighting against. Different venues are appropriate to address different problems. Problems which require the creation of new law or the modification of old are appropriately reserved to the People. The Courts should refrain from transgressing into such domains at all costs. Posted by: cengel at June 28, 2005 03:39 PMI agree with Cengel's comments above. The problem is that the Living Constitutionalist approaches a problem with the wrong mindset: they ask, "What is the best answer to this problem, and how can the constitution be contorted to justify that answer?" (Q.v., Prof. Ralph A. Rossum, The Textualist Jurisprudence of Justice Scalia. In pursuance of that goal, they resort to stare decisis (even where precedent conflicts with the Constitution - see Kelo, foreign law (see Roper, Atkins, Lawrence and so on), they resort to substantive due process (everywhere), and so on. But this is the wrong way around. Instead, they should do as Jefferson counselled: "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."In other words, a good originalist opinion first identifies the constitutional question, second, returns to the text and places that text in its original understanding, and third, armed with the foregoing, places in writing what the Constitution says to a give case or controversy. If a Judge does otherwise, if they re-interpret the law on the basis of anything other than what it says, then the Constitution means whatever the Supreme Court says it means - the potential for abuse is unlimited. I recently posed twelve problems with the Living Constitution, and I invite any supporters of that theory to rebut those points. I also invite anyone who agrees with the theory to help me expand the Wikipedia entry, as, at this time, the article is rather one-sided. Posted by: Simon at June 28, 2005 04:11 PMAR - "Abortion, Homosexuality, Internet File Sharing...none of these things were adressed in the original document. They didn't exist as they do today. Do we simply say "it doesn't appear, so we don't consider it?" No. The justices simply take the principles established and reconcile them with todays needs." But remember that murder, rape, and robbery existed in those days but they aren't mentioned in the Constitution either. The document was not supposed to be a laundry list. It set up a government and how it functions. It left laws up to the legislature. There is no Constitutional right to marriage or abortion and no court can send you to jail for murdering someone unless there is a law against it. These decisions should be left up to the legislative branch unless they contradict the actual Constitution, not the (queue ominous tone) "living" one. Otherwise, the Constitution starts to mean whatever the SC says. I continue to believe that any court that finds a right to abortion in the Constitution but can't find where it is unconstitutional to discriminate based on race (i.e. affirmative action) is reading their own opinion into the document. That's not what a judge is supposed to do. Posted by: doverspa at June 28, 2005 04:38 PMSimon, you have a very interesting legal citation style. I'm going to go out on a limb here and guess it was largely self-taught. I'm going to stay out on that limb a bit longer and guess that you didn't pick up your willingness to abandon settled law was largely self-taught as well. I disagree with what I've interpreted Brian to say--namely, that the Court and the Judiciary should be prepared to stretch the Constitution a bit to fill in gaps created by the expansion of technological innovation and social evolution. That, naturally, is the job of the political branches. While there is a school of constitutional law, there is no school of constitutional equity--with the possible exception of the Warren Court's relatively brief tenure. Now, let's do distinguish the empirical power of the Court from its normative role, particularly in view of doverspa's last comment. The Constitution does mean whatever the Court says it means, and woe betide any state or federal court or officer who attempts to argue otherwise, because the Court has unrelentingly smacked down every conceivable challenger to its preeminence in the field of interpreting the constitutional text in decisions that are well-settled and, if not in actually utterly unassailable, practically unassailable. The way one overrides the Court is to change the Court or amend the Constitution. I do not share Simon's cynicism that, regardless of the text of a newly ratified amendment, the Court will work its own will the people be damned. None of the federal judges within my reasonably broad acquaintance ever approaches a case thinking, "How can I exert my own will in this case, the law be damned?" Yes, past experience will exert its subconscious influence on the judge's thinking, but there is no conscious manipulation of the law to create an end fashioned by the judge's own political preferences (as distinct from party--i.e., litigant--preference; face it, some judges decide they like the little old lady defendant better than the big bad corporation plaintiff and, while it still results in bad law, it's not quite the same as a judge favoring his own policy positions over all other comers). Posted by: The Jaded JD at June 28, 2005 08:02 PMTJJD- I'd be interested to see you tackle (i.e., shoot down) my twelve problems with the living constitution, linked above, since Brian seems unwilling to do so. I'm not afraid to be proved wrong. ;) Posted by: Simon at June 28, 2005 10:47 PM"The Constitution does mean whatever the Court says it means....." JD, I see you are coming from the 2+2=5 school of philosophy. In my philosophy neither the Pope nor SCOTUS is infallible. Thier ruling that the earth is .5 AU from the Sun rather then 1 AU does not bring the Sun 1 centimeter closer. Of course the Supreme Court has the AUTHORITY to rule upon the Constitution.... but that does not change the actual substance of the Constitution. It just means that according to the law, we are supposed to abide by the Courts decisions. You might ask Andrew Jackson (a federal officer, I believe) about the peril of challenging the preeminance of the Supreme Court. Therein lies a lesson.... for the Court holds only such authority that the real source of authority, the People, are willing to allow it at any given moment. SCOTUS can, indeed, rule that the Constitution means whatever it says it means.... but if it's rulings are so at variance with what the People believe the Constitution means... if it is percieved to be substituting it's own will for that of the Law of the Land, what exactly do you think will happen? When Courts loose the respect of the People, they do so at THIER own peril... and the peril of us all. No one wants to see breakdown of law and order....but if you think it can't happen just look to history. If you think we haven't trod dangerously far down that road, then I think you must be blind. You have people here, mainstream people, convinced that the Court is substituting it's own WILL for that of the Law. Yes, it takes an awfull lot for the People to bestir themselves....and yes we still ARE (thankfully) very far away from that point..... but each one of these horrendous (and seemingly capricious) decisions is like the breaking of a support rod that upholds the Courts authority....and if the Court (or the people who put such Justices on the bench) doesn't wake up to that fact... one day they will look down to find them all gone. "None of the federal judges within my reasonably broad acquaintance ever approaches a case thinking, "How can I exert my own will in this case, the law be damned?" " I'm glad YOU have such confidence.... but frankly I don't see it supported by the way the Court actualy rules. I think your confidence is not shared by a very large proportion of our population..... and rulings like the recent eminent domain one simply reinforce that. For myself, I believe that a good half of the Justices in our highest Courts are harboring purple robes beneath thier black ones. Posted by: cengel at June 29, 2005 11:22 AMCengel, since you're so sanguine on the precision and clarity of meaning of words, as informed by your unsurpassed common sense, I have a few words from the constitution that puzzle me. perhaps you can straighten me out: unusual, as in "cruel and unusual punishment" In what sense is the meaning of this word unmalleable from time to time and place to place? What am I missing? public as in "public good" (probably others, too) In light of the fact that this word has 7 separate adjectival definitions and 3 definitions of the noun form, what's the basis for the idea that this word's meaning is precise and concise, instead of a constellation of related meanings composed of ballpark essence, but nevertheless composed of a series of shades of meaning, not just 1. Posted by: bk at June 29, 2005 03:25 PMBK, Very simple "unusual" means outside the norms for society. "Public" means society at large... very specificaly it means that individuals may not be excluded. But you are probably looking for the words "public use".... which very specificly mean USED BY THE PUBLIC.... and as Simon can probably lecture you was supported by all the legal traditions of the day in which it was written. Now prehaps you can explain to me how the words... "the right of the people to keep and bear Arms, shall not be infringed." AND Can be construed in an honest reading to mean "States are free to pass laws restricting and forbiding private citizens the right to own guns."
can be construed to mean "NOT confronted with witnesses against him"
"nor shall private property be taken for public use, without just compensation" can be taken to read "It's ok to take private property away from individuals and give it to OTHER private individuals as long as they give the government lots of money"
For instance "shall not" should not be construed to mean "shall" and "public" should not be construed to mean "private" and "to be confronted" should no be mistaken for "need not be confronted" I don't think that's asking for too much. Cengal, We agree that a Supreme Court ruling on the distance of the sun from the earth doesn't change the distance, if by your example you mean the actual distance. No terrestial body can, as I understand it. (But, of course, a terrestrial body could redefine what an Astronomical Unit is, thereby rendering the distance of the sun a number other than 1.) But the meaning of the Constitution is not an objective fact, it's a subjective interpretation. Whether the decision of the Supreme Court is enforced or not--compare President Jackson's disregard for the Court's decision in Cherokee Nation to President Eisenhower calling in federal marshals to desegregate schools--does not change the fact that the Constitution means what the Supreme Court says it means. People may, as you suggest, disobey the law. But that doesn't change the law, anymore than a murderous act by a murderer legalizes murder. When the People are so "bestirred" in opposition to the Court, there's no need for rebellion--if they're that bestirred, they can just amend the Constitution. Posted by: The Jaded JD at June 29, 2005 06:24 PMSimon, Since you've asked, I've reviewed your 12 points. I've supplied the feedback here, because you asked for it here. It's not really relevant to the thread, though, so any further discussion of them will, for my part, be limited to email. #1 - The Supreme Court of the United States does not "re-interpret new clauses into the Constitution;" rather, the Court interprets clauses within the Constitution when those clauses lack plain meaning. Construction is a quintessential function of a court of law. Construction may be derogated, firstly, by superior courts (not pertinent in interpretations of constitutional law by the Supreme Court of the United States); secondly, by subsequent courts (there are lengthy arguments on either side of the debate about whether the principle of stare decisis applies to constitutional interpretation); thirdly, by Congress in its power to propound amendments to the Constitution (as illustrated clearly and early on by the adoption of the 11th Amendment to derogate the decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)); and, fourthly, by a constitutional convention called by two-thirds of the states's legislatures. As a technical matter, the states lack power to propound constitutional amendments. States, through their legislatures, retain power to convene a constitutional convention. There is no suggestion in the Constitution that the states, through their legislatures, may circumscribe the authority of such a constitutional convention to consider a specific amendment. Indeed, it is precisely this point that makes constitutional conventions remarkably unlikely--once convened, the constitutional convention may do as it damned well pleases, and the last time one was held (to "amend" the Articles of Confederation) a whole new document resulted. #2 - "Evolving standards of decency" is not a doctrine of general constitutional interpretation; rather, it is a limited doctrine of interpreting the Cruel and Unusual Clause of the 8th Amendment. The phrase has never been applied by the Supreme Court of the United States to any area of constitutional law outside 8th Amendment interpretation, though this mistake is common among those lacking formal legal education. Why should the Court consider "evolving standards of decency" in interpreting the Cruel and Unusual Clause? Because cruelty and unusualness do not exist in a vacuum: the only way to tell whether a specific punishment is either cruel or--especially--unusual, is to look around and decide whether it has become novel. "Unusual" need not mean unique. An albino squirrel is unusual, but it need not be the only albino squirrel. #3 - That the British Constitution is unwritten is a myth. The British Constitution is not written in a single document. The British Constitution is embodied in a set of compacts between successive sovereigns and the people through Parliament, of which King John's Magna Carta is an example. It is true that the Parliament of Westminster is one branch of government, but the British Constitution only provides for two: a legislative and an executive--the executive consists only of the Sovereign, and the legislative consists of the Sovereign, Lords, and Commons. 1 William Blackstone, Commentaries on the Laws of England at *143. This is manifested in the parliamentary enacting clause: "Be it enacted by the [Sovereign's] most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same." (The Lords are left out where the Commons acts without them, but the Sovereign never is.) The Sovereign is the "Third House" of Parliament. Parliament can and does effect "constitutional" changes whenever it alters the balance of power within British government. If one wanted to compare this apple to the orange of the American system, consider the process of "amending" the American Constitution with a majority of the House, a majority of the Senate, and the approval of the president. You're correct to point out that the Founders weren't satisfied with that process, but the motive you attribute to the Founders is incorrect in its ignorance of subtlety. Yes, the Founders didn't want Congress to effect constitutional amendments on its own, because the Constitution embodies a treaty between sovereign states creating a federal government. The creature of the instrument cannot change the instrument on its own. The states must ratify, through their legislatures or through conventions, alterations in the balance of power between them and their creature--the federal government. The glaring defect in your logic, "the Founders rejected this approach, and instead opted for a written constitution which could only be amended by consent of the people - not by fiat of one of the branches of government," is evident on its face: constitutional amendments are propounded by one branch of the federal government--the legislature. Moreover, at no point in the process are the people involved. Article V allows for ratification by the states through their legislature or through conventions--Article V excludes ratification by popular referendum. Expressio unius exclusio alteres est. #4 - The Constitution does mean whatever it means to the Judiciary. This is either tautological or axiomatic, depending on your view, but it is nevertheless inescapably so. It may have alternative meanings, but those alternative meanings lack the force of law. I can say "dog" means "cat" all day long, and vast swaths of people may agree with me. Yet, until the Judiciary says "dog" means "cat," dogs are not cats. On the other hand, once the Judiciary says "dog" means "cat," even if vast swaths of people disagree, for the purposes of the law, dogs are cats. See Nix v. Hedden, 149 U.S. 304 (1893) (holding tomatoes to be vegetables for the purposes of the Tariff Act of 1883, despite the botanical fact that tomatoes are fruits). #5 - You're confusing Originalism with Textualism. And whoever wrote the Wikipedia article on Originialism seems to have a problem distinguishing Textualism, Intentionalism, and Purposivism. Simply put, all judges treat the Constitution as a statute. They all begin with the plain meaning of the text; the first question is, when does the text become ambiguous, because a meaning that is "plain" to one person is not necessarily "plain" to another. (The second question is, once ambiguity is discerned, to which sources does one turn to clarify that ambiguity.) #6 - The Constitution has a great check against judges gaining unfettered discretion to inject their personal views into the Constitution: amendment. If the Supreme Court of the United States enunciates an interpretation of constitutional law so odious to the people of the United States, they, through their representatives, may propound and ratify an amendment to the Constitution to derogate that Supreme Court decision. See the 11th Amendment post-Chisholm. #7 - "Standards of decency" doesn't apply to the whole Constitution, only to the Cruel and Unusual Clause. #8 - This "hugely important" question isn't even a question. Even assuming here arguendo that the "standards of decency" doctrine did apply to the whole Constitution, the Constitution, whether Living or Dead, is still the Constitution. The "hugely important" question thus contains an internal fallacy making it unanswerable--unanswerable by The Living Constitution or anything else. #9 - Again, you're using a limited Cruel and Unusual Clause example to illustrate an irrelevant point. #10 - Every constitutional interpretation necessarily implicates moral ideals, because every judge is subconsciously informed in his decision by his own world view. #11 - Actually, 14th Amendment Equal Protection was expanded to include gender only relatively recently. It was originally interpreted to mean only race. See The Slaughter House Cases. Of course, that race-bound interpretation is not supported by the text of the amendment, which never mentions race--only "persons" and "citizens." This is perhaps the clearest example of why Originalism--or, as the Wikipedia article on Originalism would have us believe, Originalist Intentionalism"--is not compatible with plain meaning interpretation of the text. Women are persons. #12 - This is a red herring. Judicial nominations are about judicial philosophy. The speeches, articles, and opinions of a judicial nominee are fair game because they reveal judicial philosophy--and temperament. In fact, a majority of the work of the federal courts, including the Supreme Court, is not constitutional interpretation at all--it's statutory interpretation, precisely because of the increasingly codification of state and federal law. Whether a judge personally favors abortion or not ought not to play a role in his confirmation, but what a judge has said or written about abortion does: it reveals, for example, to what degree he applies stare decisis to constitutional precedent. Finally, the article makes clear it has a lay author. Words and phrases like ultra vires, arbitrary and capricious, and apropos are not only misused but the first two have a clear context in administrative law that simply look peculiar in this context. It's not quite clear why they're here at all. Posted by: The Jaded JD at June 29, 2005 09:40 PMJD, From whom do you think "the Law" and legitimate authority ultimately derive? If you think SCOTUS or even Congress you would be directly at odds with what the people who created our system of government believed. The answer is the People .... government by the consent of the governed. If what the Courts happens to believe is the Law is so at odds with what the People, at large, believe what the Law should be that they no longer respect the authority of the Court.... then guess what? The "Law" no longer means what the Courts say it means.... because the Courts derive thier authority to rule on Law from the People.... and if the people loose confidence in them then the Courts NO LONGER POSSES such authority to rule. "When the People are so "bestirred" in opposition to the Court, there's no need for rebellion--if they're that bestirred, they can just amend the Constitution." Therein lies the problem. If Court is not willing to respect the origional document but rather substitute it's own will for the will of the authors..... then what confidence can anyone have that any new Ammendment proposed will be treated with any more reverence? The definition of insanity is doing the same thing over and over again and expecting different results. A great deal of the dissaffection and irreverence we see for government today derives from the belief among the people that even if they made thier wishes clearly and concisely known through the Democratic process they would be ignored. This may be a difficult concept for you because of your proffesion and because of how close you are to the subject at hand. The "Law" really has no meaning beyond which the People who are bound by it choose to lend it..... anymore then the ugly green piece of paper in my pocket with Washingtons portrait on it has value beyond which people choose afford it. The Constitution was NOT a document written for lawyers to be poked and prodded at by lawyers and have yet more lawyers decide it's meaning and pronounce from the Mound to all us poor laymen what mysteries they've discoverd in it's depths from thier highly technical research into it and tell us all how we should live our lives. It was written for the People... in the plain and simple language every farmer, wainwright and day laborer could understand. It was written to have clear meaning to them. Because the Framers understood a concept which (seemingly) you and the Courts have forgotten. Legitimate Government derives NOT from the Governerors, NOT from the Law, NOT from the Courts..... but from the People who lend thier consent to be governed.... a consent that can be as easly snatched away as it is granted. This fact was immediately apparent to the Framers.... for they were children of just such an act. Increasingly the People, ordinary every-day mainstream people see that the Courts ruling of what the Constitution mean is becoming divorced from what they believe the plain and simple meaning of the words, intent and spirit of the Constitution are. That is a dangerous path the Court is treading. It is the fault of the members of the Court themselves (and the politicians who appointed them).... it is thier use of legal artifice to try and stretch and torture the words of the Constitution beyond what the plain and simple language actualy supports to what they would LIKE or find it convenient for it to say. This rift between the Court and the People is a troubling one..... and the Court needs to correct it by taking a step back and stay closer to the plain and simple meaning (and spirit) of what the words actualy say. If changes need be made to modify it to the needs of the present day....the Court should step back from such temptations.... and let the People, through the democratic process make any neccesary adjustments..... for the people know thier own minds and mores far better then the Court ever could. The Court, with it's imperfect knowledge, should refrain from ASSUMING it knows the needs of the People.....and stick to the far simpler task of understanding what the People have actualy TOLD it, in thier own words.
Posted by: cengel at June 30, 2005 11:19 AM JD, From whom do you think "the Law" and legitimate authority ultimately derive? If you think SCOTUS or even Congress you would be directly at odds with what the people who created our system of government believed. The answer is the People .... government by the consent of the governed. If what the Courts happens to believe is the Law is so at odds with what the People, at large, believe what the Law should be that they no longer respect the authority of the Court.... then guess what? The "Law" no longer means what the Courts say it means.... because the Courts derive thier authority to rule on Law from the People.... and if the people loose confidence in them then the Courts NO LONGER POSSES such authority to rule. "When the People are so "bestirred" in opposition to the Court, there's no need for rebellion--if they're that bestirred, they can just amend the Constitution." Therein lies the problem. If Court is not willing to respect the origional document but rather substitute it's own will for the will of the authors..... then what confidence can anyone have that any new Ammendment proposed will be treated with any more reverence? The definition of insanity is doing the same thing over and over again and expecting different results. A great deal of the dissaffection and irreverence we see for government today derives from the belief among the people that even if they made thier wishes clearly and concisely known through the Democratic process they would be ignored. This may be a difficult concept for you because of your proffesion and because of how close you are to the subject at hand. The "Law" really has no meaning beyond which the People who are bound by it choose to lend it..... anymore then the ugly green piece of paper in my pocket with Washingtons portrait on it has value beyond which people choose afford it. The Constitution was NOT a document written for lawyers to be poked and prodded at by lawyers and have yet more lawyers decide it's meaning and pronounce from the Mound to all us poor laymen what mysteries they've discoverd in it's depths from thier highly technical research into it and tell us all how we should live our lives. It was written for the People... in the plain and simple language every farmer, wainwright and day laborer could understand. It was written to have clear meaning to them. Because the Framers understood a concept which (seemingly) you and the Courts have forgotten. Legitimate Government derives NOT from the Governerors, NOT from the Law, NOT from the Courts..... but from the People who lend thier consent to be governed.... a consent that can be as easly snatched away as it is granted. This fact was immediately apparent to the Framers.... for they were children of just such an act. Increasingly the People, ordinary every-day mainstream people see that the Courts ruling of what the Constitution mean is becoming divorced from what they believe the plain and simple meaning of the words, intent and spirit of the Constitution are. That is a dangerous path the Court is treading. It is the fault of the members of the Court themselves (and the politicians who appointed them).... it is thier use of legal artifice to try and stretch and torture the words of the Constitution beyond what the plain and simple language actualy supports to what they would LIKE or find it convenient for it to say. This rift between the Court and the People is a troubling one..... and the Court needs to correct it by taking a step back and stay closer to the plain and simple meaning (and spirit) of what the words actualy say. If changes need be made to modify it to the needs of the present day....the Court should step back from such temptations.... and let the People, through the democratic process make any neccesary adjustments..... for the people know thier own minds and mores far better then the Court ever could. The Court, with it's imperfect knowledge, should refrain from ASSUMING it knows the needs of the People.....and stick to the far simpler task of understanding what the People have actualy TOLD it, in thier own words.
Posted by: cengel at June 30, 2005 11:20 AM TJJD- I think that's pretty good, for the most part. But I'm not convinced. ;) While not necessarily agreeing with any of it, most of it, I’ll leave to stand, but it behooves me to add rejoinders to some of those comments. I "The Supreme Court of the United States does not 're-interpret new clauses into the Constitution;' rather, the Court interprets clauses within the Constitution when those clauses lack plain meaning."I’m not quite sure that I can agree with this. Where is the ambiguity in the confrontation clause? It seems fairly plain to me; it says, "In all criminal prosecutions, the accused shall enjoy the right …to be confronted with the witnesses against him". This simply is not reconcilable with Maryland v. Craig. Any opinion which is so utterly at variance with text, tradition and reality that Justice Stevens joins one of Justice Scalia’s dissents (see also, the similarly-wrongly-decided Hamdi) should set off alarm bells as a matter of course; in Craig, Justice O’Connor wastes several perfectly innocent pages of the U.S. Reports to invent all manner of tests and fluff for the purpose of inserting into the Bill of Rights a qualifier to the confrontation clause. This is the same sort of reasoning that allows Larry Tribe to say – without apparently seeing how utterly ridiculous this is – the phrase "procedural due process". This is similar rot to the Starbucks’ "coffee flavored coffee" drink. Likewise, the public use clause, excised from the Constitution by five members of the court (as opposed to two thirds of both chambers of Congress and 3/4 of the state legislatures) in Kelo. Hillel Levin of PrawsBlawg challenged my assertions in Kelo: May the Farce be With You thusly: I think there is a strong argument that this is a public use. The property is being condemned under eminent domain in order that the *public* can have good schools; in order that the *public* can have effective policing; in order that the *public* can have clean streets; in order that the *public* can live in a city that isn't falling apart all around themThis seems a very reasonable, sensible train of logic. But it none the less: …has a slightly topsy-turvy feel to it: it has the feeling that you determined what would be a fair, reasonable, good answer to the problem presented, and having reached that determination, now you're looking for ways in which the 5th amendment can be bent, hammered and contorted into a shape which doesn't preclude that determination …I.e., "what could the 5th Amendment say?", rather than "what does the 5th Amendment say?". Apropos, you conclude that although the taking itself is not for public use, the second-degree earnings from that taking may be put to public use.Worse yet, I noted that: …such a standard would be far-reaching. If the takings clause can be read to mean that as long as the taking can, by some means, be connected to an eventual-but-abstracted public use (in this case, the increased taxes the city believes will stem from the taking will have a public use, even if the taking itself does not), why couldn't that same line of reasoning allow other provisions to be similarly read? For example, take the commerce clause. In the modern world, what activity is there that does not, in some eventual-but-abstracted manner, impact on interstate commerce and one's ability to participate therein? The ‘eventual-but-abstract relationship’ test … could turn the commerce clause into a blank cheque through which Congress could exercise the plenary powers which it was so deliberately and clearly denied by the Constitution.Such is my line of reasoning in declaring that the court inserts new clauses into the Constitution through its re-interpretation of the existing clauses. The problem, I think, entirely stems from method. Although interpretive errors are entirely possible for originalists, the scope for those errors is greatly reduced when one starts with the text, rather than with a legal reasoning. Justices should first establish what the Constitution says, and what it meant when it was adopted. Having done so, they should apply that to the text. This does not and should not eliminate judicial discretion, as Justice Thomas would prefer, because I agree with you that there will always be a degree of latitude. But any result which conflicts with the Constitution is inherently void, in my view; consequentially, the applicable precedent in Kelo is, in fact, Justice O’Connor’s dissent, and the applicable precedent in Craig is Justice Scalia’s dissent. The per curiam opinions in those cases are voided by virtue of their basic and fundamental incompatibility with the Constitution. II The ‘Evolving standards of decency’ is not a doctrine of general constitutional interpretation; rather, it is a limited doctrine of interpreting the Cruel and Unusual Clause of the 8th Amendment.It was coined in Trop v. Dulles, which wasn’t an 8th Amendment case, and thus even if it isn’t applied outside of the 8th Amendment, something I’m far from sure of, it is then only not applied because the Living Constitutionalists have found it unnecessary or inexpedient to apply it to other types of cases. I would have to look further, but I suspect that the exact phrase – or, at the very least, its spirit – permeates rulings across the broad range of the Court’s jurisprudence. III That the British Constitution is unwritten is a myth. The British Constitution is not written in a single document. [et al](Emphasis added). This is true, that the British Constitution is a combination of statute, precedent and proclamations; of unwritten and written. However, in that system, Parliament – meaning, the three branches of Parliament, both Houses and the Crown – is sovereign. It can change the Constitution any time Parliament so desires; any act of Parliament has the full force of law, and can overturn any aspect of the Constitution. Furthermore, Britain lacks any separation of powers; by precedent, in this day and age, the Crown is not involved in the substantive business of government, delegating its authority to the Prime Minister, who is – by equal precedent, and practical necessity – a person who can command a majority in Parliament. Therefore, in Britain, whenever a party system exists in Parliament, the legislature is necessarily subordinate to the executive, and thus the Constitution in Britain is whatever Parliament says it is, and Parliament says whatever the Prime Minister wishes. See, e.g., the Parliament Act 1911 (eviscerates the power of the House of Lords), the subsequent evisceration of the membership of the House of Lords under Blair, and the decision to abolish the nine hundred year old position of Lord Chancellor under the same. Although the Crown wielded much more power in 1776, I tend to think that the basics of the system were the same. Yes, the British Constitution may have been "written" to a certain extent, but it was not, in any practical sense, readable, it was not knowable, and it could be amended at the whim of the legislature, which meant that it was necessarily fluid. These features are the building blocks of arbitrary and capricious government. My reasoning and understanding of the time leads me to believe that the Framers rejected this view, and instead instituted a Constitution whose provisions were not only written down at all, but were written down in a single place. The Constitution of the United States is not just written, it is knowable. It is difficult to amend. To amend the Constitution is a serious business; it must be done specifically, by a given process, with clear and knowable results. Of such importance was the "knowability", the textual integrity of the Constitution, that amendments to that document were – by practice initiated by the founding generation – not inserted inline, but appended to the document. If I recall correctly – and I can’t source this assertion – Madison had originally designed the first amendment to be inline, within the Constitution, but this approach was – like many of Madison’s ideas – rejected. As far as the people’s involvement in the amendment process of the American Constitution, my point was to contrast the ability of the elected branches to amend the Constitution with the inability of the unelected branch to amend the Constitution. The people may not vote directly for a constitutional amendment (n1), but the Constitution can only be amended with the consent of the popularly elected branches of government, which seems in keeping with the principle that the people retain sovereignty and must exercise it to amend the Constitution. There is no such exercise when the court excises, for example, the confrontation clause. Maybe the Confrontation Clause should be modified, maybe it should have qualifiers and exceptions – but the Constitution is categorical on this point. The problem with Craig – or Roper, or Atkins, or Kelo, or any of those cases - isn’t whether the call was right or wrong, it’s who gets to make the call. The Constitution, as it seems to me, reserves that call to the legislatures.
Cengel, Your populism is empassioned, yet at stern odds with the republican, and often down-right elitist, sentiments of the Founders. If the Founders so trusted the people, why did they disallow the people to enact law through referendum or plebecite? Why did they allow the people only to elect Representatives? Senators were elected by state legislators; the president by the Electoral College. And executive officers, ambassadors, judges, &c., are appointed by the president (elected by the Electoral College, which is not constitutionally bound to obey the results of the popular presidential vote) and confirmed by the Senate (elected by the state legislatures). The people, whom you claim the Founders loved, don't get a say even through their indirect representatives, the House. The reason the Constitution begins, "We the people," and the reason it was ratified not by the states in their legislatures but by the states' people in their conventions, was because the Constitution represents a contract nullifying aspects of the sovereignty of the states as independent countries after Independence. The Articles of Confederation, which attempted to nullify a bit of that sovereignty, didn't work out well from a federal perspective. So, essentially, the Founders went over the heads of the states to the people in the states in order to help restrain the power of the states against the federal government. But don't mistake that for a loving trust of the popular sentiment. And the words of the Constitution were written for those in the know. Terms in the Constitution were lifted directly out of tracts of the British Constitution (and co-mingled with new terms where the British Constitution was deemed inadequate). But those terms did have set meanings at the time the Constitution was written, but the farmers in the fields, to whom you refer, most likely didn't know how to read and most likely had no education at all, and most likely had no idea what, for example, the 1689 Declaration of Rights was, let alone what was in it or what the terms in it had come to mean through judicial interpretation over the intervening century. Finally, the law is the law. If a tree falls in a wood and no one is there to hear, it still makes a sound. The law is the law even if no one obeys it; it merely lies dormant, in occultation, until it is rediscovered, enforced anew, or replaced by new law. That's not to say that lawyers or judges are an oligarchy who get to announce what the law is to everyone else. Lawyers and judges aren't the only ones who vote for legislators, in whose power it always remains to derogate the decisions of the judiciary. Posted by: The Jaded JD at June 30, 2005 11:08 PMSimon, If you want to carry on in this thread, so be it. Here is the response I emailed to you. 1. In each case you've cited, you claim that the Court has removed language from the Constitution, when what the Court has done is to interpret the Constitution to remove some potential meanings of terms in the text from carrying legal effect. I haven't had time to read the text of Kelo yet, so I'm ignoring that. But I'm familiar with Craig from my Assistant U.S. Attorney experience, and I'm not persuaded that the text "to be confronted by" an adverse witness is the same linguistically or logically as "to confront" adverse witnesses. And looking beyond the text to the purpose, I need only turn to Blackstone (who wrote his Commentaries a mere 20 years before the Constitution was written), as Justice O'Connor did, to determine the purpose of the Confrontation Clause in the Constitution: (1) testimony in public, before many witnesses, is less susceptible to error in transcription by the court reporter or clerk; (2) live, real-time testimony, as opposed to written statements, are susceptible to real-time, contemporaneous clarification if there is ambiguity; (3) real-time testimony is susceptible to expansion through questions of the witness by counsel, jurors, or the court; and (4) by observing the witness's demeanor while testifying, the jury and the court are able to assess credibility of the witness. 3 William Blackstone, Commentaries on the Laws of England at *373-74. All of these purposes are preserved where the witness--especially a witness where a defendant who confronts (as opposed to "being confronted by") the witness--is extraordinarily susceptible to intimidation. Note that intimidation of the witness is not among the purposes of confrontation described by Blackstone. So I am not persuaded that, where the defendant, through counsel, has an opportunity to (1) object to improper testimony, (2) cross examine, and (3) impeach credibility to the jury and the court, live, real-time testimony by closed-circuit television is "not reconcilable" with the right of the defendant "to be confronted by" adverse witnesses. While I have a very detailed knowledge of the Hamdi case, your allegation that it was wrongly decided is conclusory, so I will not engage it. Finally, neither Kelo nor Craig (nor Hamdi) were decided per curiam. 2. Evolving standards of decency: Trop v. Dulles does involve the 8th Amendment and the Cruel and Unusual Clause. The phrase "evolving standards of decency" is limited, in fact, to that Clause. The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. at 100-101 (internal notes and citations omitted). Suspect what you might, but the simple fact is that the phrase "evolving standards of decency" does not exist in any SCOTUS case in any context other than that of interpreting the Cruel and Unusual Clause. You're naturally welcome to debate the merits of an "evolving standards of decency" doctrine as applied to the Cruel and Unusual Clause, but before you do, I invite you to remember that the phrase "cruel and unusual" does not originate in the Constitution; it was part of the Declaration of Rights ratifying the succession of William and Mary. I believe one could persuasively argue that what was cruel and unusual in 1689 has changed a bit in the intervening years, and that this Clause, if none other, is due some elasticity in interpretation. 3. The British System, generally: Having read PPE at St Hugh's College, Oxon., I feel myself relatively well versed in the history of the parliamentary government in Britain. Because my residence in and study of England occurred during the Major Government, I lack a detailed appreciation of the constitutional changes effected during the Blair Government. To say that the Constitution is whatever Parliament says and that Parliament says whatever the Prime Minister tells it to say is a gross oversimplification--or was a decade ago--because it seriously understates the role of the parliamentary party. It also ignores the legal fact that the Sovereign may prevent a bill from becoming law by withholding the Royal Assent, though Anne was the last to have done so. 4. I'm not sure whether you ignore the point, disagree with it, or misunderstand it, but the importance of writing the Constitution of the United States was to create contractual rights between the federal government it created and the several states, and between the several states themselves. This subtle but inescapable point is manifested in the history of the document and the deliberations of its contents and creation, especially when one remembers that the Constitution was intended as the replacement of the Articles of Confederation, under which the balance of power between the federal governments and the several states, and to a lesser extent, between the several states themselves, was subject to continuing dispute. You are correct that Madison, as a member of the House, proposed that the amendments later becoming the Bill of Rights be propounded as inline alterations incorporated directly into the text, and that this proposal was rejected. However, you've mistaken the grounds (in addition to indelicately suggesting that Madison was an inferior Founder because "many" of Madison's proposals were similarly rejected--many may have been rejected, but many were adopted, particularly in the Constitutional Convention). The grounds for the rejection was that the Constitution was rightly seen as a contract--not by the states, but by the people of the United States as organized within their several states--to which the states were not parties but third-party beneficiaries. The amendment process was a process by which the United States, through Congressional proposal, and the states, by demanding Congressional convocation of a new constitutional convention, could renegotiate their benefits and obligations. This relationship is further confirmed in the nature of ratification: when the states wanted to alter their benefits or obligations, and demanded a constitutional convention, it doesn't matter to the states whether the states or the people--in ratifying conventions--effect the ratification; but Congress can preserve the federal interest by requiring popular--by convention--ratification, should Congress feel the people align with it against the states. Conversely, when the Congress wants to alter the federal benefits or obligations, by proposing an amendment, it has the choice of allowing states to ratify, or Congress can go over the heads of the states (as mere third-party beneficiaries) to its peer, contracting party--the people (in conventions). And this difference is the reason the inline proposal was rejected. The Constitution was a contract by the people of the several states, creating benefits and obligations for the states. The amendments, on the other hand, could be mere re-assignments of third-party benefits or obligations by the third-party beneficiary, if the amendments were propounded or adopted without their participation. Accordingly, the amendments were inferior to the original document--not by effect but by capacity of the parties. See Matthew P. Harrington, "Public Use" and the Original Understanding of the So-Called "Takings" Clause, 53 Hastings L.J. 1245, 1280 n.131 (citing 11 Documentary History of the First Federal Congress: Debates in the House of Representatives 1221-29 (Charles Bangs Bickford et al. eds. 1992)). While we therefore agree in very general terms that popular sovereignty undergirds the Constitution, your perspective lacks adequate detail to be factually or philosophically accurate. For example, you refer to "the ability of the elected branches to amend the Constitution," when the president plays no role whatever in the amendment process. Likewise, you say that "the Constitution can only be amended with the consent of the popularly elected branches of government," when that is not true on two counts: (1) the president, an elected branch, plays no role; and (2) the Constitution can be amended without the consent of the federal government altogether, be they elected branches or no--the state legislatures may demand Congress convene a constitutional convention, which is a mandatory ministerial act in which Congress has no discretion--Congress must call the convention. See United States v. Sprague, 282 U.S. 716, 730 (1931). 5. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Surely, for an Originalist as you hold yourself out to be, there can be no better reference to what the Founders intended the meaning of the Constitution to be than contemporaneous statements and actions of the Founders. (Accepting your distinction of Originalist Intentionalist and Originalist Textualist from your Wikipedia article for the sake of this point, either the intention is the goal, or the interpretation of ambiguous text is the goal of an Originalist; Article III vests the judicial power of the United States in the Supreme Court and its inferior federal courts. What is the judicial power? What the Founders intended it to be.) While the outcome of Marbury was controversial (i.e., William Marbury got no commission to sit as justice of the peace), the emphatic assertion of the control of the judicial branch over the interpretation of the laws and Constitution of the United States was not seriously challenged, even though it occurred while most delegates to the Constitutional Convention were alive. William H. Rehnquist, The Supreme Court 114 (1987). Accordingly, the Constitution appears not to reserve the interpretation of its terms to the legislature. 6. Currently occupied in the prosecution of federal defendants in federal court for violations of federal criminal law, I'm something of a "law-and-order" type myself. Nevertheless, my position is that there simply is no substantive legal--as opposed to moral--guilt in the face of prejudicial procedural error. This is axiomatic: one can only have substantive legal guilt if the law finds it, and the law lacks capacity to find it when the law itself has been violated in the attempt to find it. 7. Perhaps legal reasoning and writing is best left to those with legal educations. Of course, if you mean your articles to be philosophical or political tracts simply treating the subject of the law, that's altogether different. But you appear in your word selection and inaccurate imitation of legal citation to represent these articles as legal writing. 8. You are correct about the translation of ultra vires, but the contents of its Wikipedia entry, to which your article hyperlinks, is not correct respecting administrative law. I may have incorrectly attributed the error to your Wikipedia article wherein you seem to be implicating administrative law by your close proximity of the phrase "arbitrary and capricious," which is a standard of judicial review in administrative law. 9. Apropos is not a signal in legal citation, unlike, for example, "see," "accord," and "e.g.," which incidentally all have specific meanings and purposes in legal writing. The Oxford English Dictionary illustrates that, when apropos is followed by its subject, it requires a preposition. However, you're using apropos to refer back to a preceding subject, a use that's been obsolete since the 18th Century. For example, the last sentence of "If the Constitution is not to have a fixed meaning, and can thus be interpreted as a given Judge or Justice fancies, then every Judicial confirmation that reaches the Senate will become a battleground over the personal views of that Judge. Apropos, see also..." would be better rendered "In apropos of which, see..." but would be best rendered without the apropos at all: "See also...." In addition, q.v. ("which see") follows a citation and does not precede it. E.g., "These principles are explicated in the Chicago Manual of Style, q.v." Posted by: The Jaded JD at June 30, 2005 11:14 PMIncidentally, just to reply to something in Cengel's post that TJJD didn't, of the fifty-odd people at the Constitutional Convention, well over half were lawyers, and almost everyone who wasn't was a politician. ;) TJJD - I'll get back to you shortly on these points. Posted by: Simon at July 1, 2005 11:35 AMSorry JD, your arguements while skilled are unconvincing. This is one area where you can place me in the "zealot" bin.....and I'll vote and advocate that way.... and if neccesary resort to civil disobediance. There can be no compromise where government by the consent of the governed is endangered. Posted by: cengel at July 1, 2005 02:22 PM |
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