Centerfield

Marc, I've previously posted this here, but it bears directly on the problem of Justice Kennedy in particular. I am defending Bork and the Republicans generally here, not Dobson. On the subject of Dr. Dobson, though, he is hardly the entire "right", as I know we all know here.

The problem is decidedly not that Kennedy doesn't follow the party line. It's that he doesn't follow any line at all. It is very close to impossible to predict how he will view the law on any given case. And that means that we don't live by the rule of law, but by the rather arbitary will of one or two people on the Supreme Court.

Here's my prior post showing how absurd Justice Kennedy was revealed to be in the Roper decision:

Roper v. Simmons is a particularly useful example of the problem with Justice Kennedy in particular. In 1989, Justice Kennedy joined parts of an opinion written by Justice Scalia in the case of Standford v. Kentucky, which was also about the constitutionality of imposing the death penalty on 16 and 17 year olds. That opinion, which Justice Kennedy specifically concurred in, provided:

Having failed to establish a consensus against capital punishment for 16- and 17-year-old offenders through state and federal statutes and the behavior of prosecutors and juries, petitioners seek to demonstrate it through other indicia, including public opinion polls, the views of interest groups, and the positions adopted by various professional associations. We decline the invitation to rest constitutional law upon such uncertain foundations. A revised national consensus so broad, so clear, and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.

The opinion went on to say that:

It has never been thought that this was a shorthand reference to the preferences of a majority of this Court.

Just 16 years later, in the opinion of Justice Kennedy, society's standards had "evolved" sufficiently for him to decide that, although it was constitutional to execute 17 year olds 16 years ago, it is no longer constitutional to do so. Although Justice Kennedy pays lip service to looking at the enactments of legislatures along the way, he says that, ultimately, it is up to the Court itself to decide what the American standards of decency are:

We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.

Kennedy acknowledges that in the 16 years since the earlier case, only 5 states had gone on to abolish the death penalty for minors. Yet he ultimately finds that those 5 are enough to suddenly tip the scales and render such punishment unconstitutional.

There is no rule of law, here. How many states must abolish a penalty before it becomes unconstitutional? 5? 10? 20? 37? It's entirely arbitary. In fact, according to the Roper opinion, at the time it was decided, 17 states (12 states in 1986 and 5 since then) which provide the death penalty for adults prohibited the death penalty for minors. According to the Constitution, it takes 38 states to ratify amendments to the Constitution. Yet Justice Kennedy decides that the actions of just 5 of them can combine to make something that, by HIS OWN CONCURRENCE, was constitutional in 1986 unconstitutional in 2005.

This is not middle ground, this is policy-making disguised as judicial interpretation. We gather no lessons from Justice Kennedy's opinion, no way to determine what other penalties may be "cruel and unusual", no way for legislators to make reasoned decisions in passing their laws. The opinion is simply, "I've changed my mind in the last 16 years, and I don't like this, so I'm going to find a way to get rid of it."

At least with Thurgood Marshall, he was consistently opposed to the death penalty. He felt it was cruel and usual in all instances. If there were a court full of Marshalls, we the people would know that if we wanted to change things, we would have to pass an amendment to the Constitution. With Kennedy, you can't even be sure his own, personal opinion is going to stay the same from one decade to the next.

Posted by: PatHMV at June 28, 2005 12:19 PM

Kennedy, whatever his warts and merits, is a fait accompli. Reagan appointed him, conservatives are now bitterly disappointed in him, and we're all stuck with him.

I'm much more interested in the upcoming fight to find a replacement for whoever the sick one is that's expected to step down. The name's just slipped my mind.

I expect that the right is going to posture fiercely on this. But the question is, will it be enough for them to get their way? Are the GOP senators who worked on the recent compromise willing to vote party line for an originalist, or for a fillibuster curtailment as a prelude to approval? The wording that came out of this agreement suggests to me that the GOP 7 will vote to upfold the fillibuster in such instances.

And its a further question as to whether GOP moderates are single-mindedly in favor of hard-line originalism.

I expect we'll get someone who leans towards originalism, but someone respectful and open-minded about the traditional role of jurisprudence as occasionally evolutionary. Hopefully it's someone that leaves both the right and the left grumbling.

Posted by: bk at June 28, 2005 12:38 PM

(IMO) The real problem with Kennedy is that his opinions DO tend to be all over the place. I'm not talking about the Conservative-Liberal political spectrum but more about his judicial philosophy toward the Constitution.

With some-one like Scalia, like him or not, his philosophy tends to be consistant. He is an "origionalist" he doesn't believe that it's the Courts duty to morph the text of the Constitution to meet the needs of the day.... he believes that it stands as it is written... and if the needs of the day requires change then it needs to be addressed through passage of new law by the legislature. This position USUALY ends up in concert with the Conservative position.... BUT not always. In cases where the origional text of the Constitution doesn't support the Conservative party line (like holding Americans at GITMO without trial) Scalia will, typicaly, rule against the party line. That's because Scalia's approach is a judicial, not a a political one.
Kennedy, like too many of the other Justices seems to approach his rulings from a more political standpoint then a judicial one.... and what you end up with is some pretty murky rulings.

A quote from Scalia's dissent is apt.....

"What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

I'm one of those Conservatives who is incredibly frustrated with the Supreme Court. But my frustration doesn't stem from them not ruling along the Conservative party line. I just want them to restrict themselves to remain within the role envisioned for the Judiciary as envisioned by the Framers.... Apply the Law as it is written. Do NOT torture the language of the law to INVENT new meanings in it. Do NOT de facto create new law or change the meaning of existing law. THAT is the job for the legislature.

If the Court sticks to THAT role, I'll be THRILLED even when it ends up ruling against the Conservative agenda. I'm MORE then happy to have those sort of battles in the Legislature, at the ballot box and in the Court of public opinion..... leave SCOTUS out of politics. The biggest problem I have with the Left is that far too many of them seem to want to use the judicial process to do an end run around the legislative process..... and (IMO) that's the way to pave the road to hell with good intentions. Kennedy, in my mind, is an artifact of that.

Posted by: cengel at June 28, 2005 12:44 PM

Pat,

That's a good comment. I'm certainly not defending Kennedy as a justice. The article specifically talked about the death penalty decision. I agree that that's a real doozy. He's got real problems and Jeffrey Rosen, who is a law professor and New Republic contributor acknowledged these in the article.

I am still bothered, however, by the comments presented in the article, more by the tone than by the substance. Let's give Kennedy at least the benefit that, however ill-conceived his legal thinking, he is acting in good faith. He is certainly not the first problematic justice in the history of the Court.

Posted by: MWS at June 28, 2005 01:28 PM

It seems likely that President Bush will get to nominate at least one and perhaps two Supreme Court justices this year. It's going to be interesting to see how he handles it.

It's obvious that he can't pick a nominee that the Democrats won't fight tooth and nail. Ramsey Clark is too old, Fidel Castro's English really sucks, and Jane Fonda is barely literate. And he has to pick someone that the rabid right will find acceptable, at least marginally, along with a lot of antacid. I think the key is to pick someone that the majority of reasonable Americans will see as being, well, reasonable. That will put Senate Democrats in the position of getting a lot of pressure from home to just get on with it, and the far right will stay on the ranch, with a lot of grumbling.

Personally, I think Alberto Gonzalez is the man for one of the nominations.

Posted by: Tom Carter at June 28, 2005 02:28 PM

I join Pat's comments in their entirety.

I'm going to go out on a limb, swim against the tide, and make a (potentially) foolish prediction that Rehnquist will not retire this year; I think that if he had nursed any intention to do so at the start of the year, the decisions handed down since have been at such variance with his views, that I think he will stay on the court as long as he is physically able. Certainly, he retains the mental ability (q.v. Tom Goldstein's comments), and I think he'll stay. Likewise, the court has agreed to hear two abortion cases next term; thus, Justice O'Connor won't leave either.

If he doesn't stay, I think Bush might actually be foolish enough nominate his friend, the proverbially Souter-ish Alberto Gonzales. Such a nomination would indeed set off a fight of epic proportions - but not from the Democratic party, who would likely quietly concede defeat in the knowledge that the pro-choice pro-affirmative action (and likely Living Constitutionalist) Gonzales is sure as hell a lot better (from their point of view) than the alternatives. No, a Gonzales nomination would set off an intense fight within the GOP. I imagine the ensuing fight would actually put me on the other side to most posters here (and indeed, to my preferred candidate, Sen. Snowe), as I would regard Gonzales as the worst possible nominee to the court, and in that regard, would have to ally myself with any part of the party that fought that nomination. I have yet to determine who I would prefer, but I suspect it's Alito.

For further recent Centerfields discussion on originalism, see comments here, here and here. For my take on Roper, see comments here.

Posted by: Simon at June 28, 2005 03:43 PM

Simon,

According to supposedly reliable sources cited by a poster at RedState, President Bush has decided that he cannot appoiont Gonzales. Not vouching for the anonymous sources myself (we all know how they can be!), but passing it on for what it's worth.

I agree that the judiciary is the one place where President Bush absolutely must deliver to the conservative base. Though some may disagree, the reality is that President Bush is not that big a social conservative. Yes, he pays lip service to a gay marriage federal amendment, he said the "right" things about Schiavo, but there's a big, big difference at the Presidential level between officially "supporting" something and actively promoting it. If the President really cared all that much about a gay marriage federal amendment, for example, we would have heard a lot, lot more about it. Instead, he gave it his "official" support, but didn't actually expend any political capital to make it happen.

But he agrees, like I do, that the biggest problem is not gay marriage itself, but the process by which we change laws which affect that issue. And on that issue, we absolutely must have more Scalia-type and no Kennedy-type justices. Appointing such justices is the fundamental deal President Bush made with the conservative base, and he and Rove are plenty aware that they must delier on this issue. Plus, the recent property decision by the "liberal" judges has weakened the Democrats on the issue, badly.

Posted by: PatHMV at June 28, 2005 03:58 PM

Pat, I'm not sure Bush has to deliver for his base now. He's already won his last campaign. He has to look into his heart and decide what legacies he really wants. If it gets really divisive, then "uniter not divider" is off the table.

If this were his 1st term I'd agree. But it's not, so I have my doubts.

Posted by: bk at June 28, 2005 04:15 PM

Cengel,

You make good points. I think your position is very principled and I agree with much of it.But the fact is, Kennedy is hardly the worst of the Supremes in that regard. It's not like he is Douglas or Brennan. And, I think many of the attacks are not because of his inconsistency but because of the substance of his positions.

This issue about original intent I find troubling. What is original intent? Not even the framers of the constitution were sure of the meanings of the various constitutional provisions. A lot of them resulted from political compromises. The Federalist Papers were essentially a post-hoc rationalization to get the Constitution ratified.

I'm not saying that anything goes or that justices should read stuff out of or into the constitution according to their preference. But talking about original intent is just as ideological in effect as using the court to make policy a la Douglas or Marshall. I tend to agree that a lot more should be resolved through the democratic process, including policies that I agree with such as abortion. But I can't see the wisdom of ignoring how the world has changed since 1787. For example, should the Court have refused to consider new technology in interpreting the 4th Amendment?

Posted by: MWS at June 28, 2005 04:34 PM

Brian,

He still has the 2006 elections. And the Democrats have pretty much made clear since his election they don't want to actually compromise with him anyway. They ignored his gesture of reappointing two judicial nominations that President Clinton had submitted after the 2000 election and embarked on a course of marked obstructionism.

If the base of his own party despises him as a turncoat, then he's not going to have a good legacy. And appointing some milquetoast judicial candidate never left anybody with a strong presidential legacy. Will history look that fondly at President Bush 41 for appointing David Souter? President Bush truly believes, I think, that judges should apply the law, not make it, and they have gone too far to making law of late. Regardless of where you stand on the substance of gay marriage or the juvenile death penalty, you really should agree that the democratic process should make that decision, not essentially unaccountable judges.

Posted by: PatHMV at June 28, 2005 04:38 PM

MWS: please refer to this Wikipedia article; I will also be happy to (try to!) answer any questions you may have vis-a-vis Originalism. You must understand that Originalism is a blanket term covering both original intent - which is now largely redundant - and original meaning, which is the philosophy to which myself, Justices Scalia and Thomas, and a few others hold.

Posted by: Simon at June 28, 2005 04:43 PM

Marc,

It's one thing to take into account actual changes in technology since the founding in interpreting, say, the 4th Amendment, but it's a far different thing to make up entirely new rules to prohibit things that were in fact considered by the founders and have no actual textual support in the constitution at all.

Sure, advancements in telephones and the internet require a new interpretation of the 4th Amendment. I'll even go so far as to say the significant increase of the importance of lawyers in the courtroom justify the Gideon decision mandating government-paid lawyers for defendants.

But deciding that the death penalty, perfectly legal before and after 1789, is no longer permissible not because of an amendment or other democratic action, but because the judges have decided that they don't like it is just not the rule of law or democracy.

So where societal changes have fundamentally changed the concrete facts on which decisions must be based, I'm fine with the necessity of interpreting the constitution in order to protect the underlying principles. But where the only thing which has ostensibly changed is public opinion, then changes should only be made by the democratic process.

Posted by: PatHMV at June 28, 2005 04:46 PM

Pat - however, as a corollary to that, however, a lot of conservatives don't want originalist judges. they want activist conservative judges. Q.v. Pat Buchanan's comments and my response. I'm less concerned (not unconcerned) whether a judge is liberal (as strict constructionist Hugo Black was) or Conservative (as strict constructionist William Rehquist is), as long as they're Originalists (i.e., original meaning, not original intent, per MWS, above) first and foremost.

Posted by: Simon at June 28, 2005 04:48 PM

Simon,

Oh, I agree 110% with you on that one. Some of DeLay's recent comments absolutely horrify me.

Posted by: PatHMV at June 28, 2005 05:15 PM

Given GW's concern about filibustering nominations I suggest he nominate for Supreme Court .... Robert Bork!

Posted by: c3 at June 28, 2005 07:59 PM

Pat, re your 12:19 PM comment,

First, I'll say my personal preference is to allow juries to decide the amenability vel non of the death penalty to a minor defendant. Juries are better suited to observe and evaluate the subjective position of the defendant before them. That having been said, there's this common theme on the Right that Justice Kennedy's opinion in Roper came out of nowhere, and that's incorrect. There's another perception--and here there may be a legitimate difference of opinion--that he doesn't count right when he counted states in Roper, but in these sorts of cases it's usually helpful to look at the opinion itself and discover why the counting method was used and what the number cited by the counter was. To illustrate my point, I'll self-plagarize a bit (fairly comfortable that the published article is too obscure to pierce my semi-anonymity).

On the first count (that Roper wasn't all-but preordained), there's a clear logical line based in Court precedent, which Justice Kennedy followed to come up with his logical framework.

“A claim that punishment is excessive is judged . . . by the standards . . . that currently prevail.” Atkins, 536 U.S. at 311 (2002). Thus, while minors as young as fourteen were subject to capital punishment in Blackstone’s day, 4 William Blackstone, Commentaries *22, the Court held that a death sentence on a fifteen year-old was cruel and unusual in Thompson v. Oklahoma, 487 U.S. 815 (1988).

In order to discern currently prevailing standards, the Court may not use “the subjective views of individual Justices” but “objective factors to the maximum possible extent.” Stanford, 492 U.S. at 369 (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977) (internal quotation marks omitted). Action taken by the State legislatures is the preeminent objective factor in determine current standards. Atkins, 536 U.S. at 312 (quoting Penry, 492 U.S. at 311); see also Stanford, 492 U.S. at 369-70 (quoting Gregg v. Georgia, 428 U.S. 153, 176 (1976)).

So we know that state legislatures are going to be the dominant factor in the analysis of constitutionality vis-a-vis cruel and unusual. It's just a matter of counting. And Justice Scalia reasonably disagrees with Justice Kennedy's method, but Justice Kennedy's method is not unreasonable either.

I get my numbers from the Brief of the Respondent in Roper itself. There are 19 states that allow capital punishment but disallow it for those under 18 when they committed their offense. (That count includes Washington state, where minors were excluded by the state supreme court on state law grounds in 1993, but the legislature had had 11 years at the time Roper was decided to abrogate that decision and never bothered to do so--so the action of the Washington state legislature susceptible to "counting" is the action of forebearance.) 12 states disallow it for those under 17 at the time of their offense. (The count includes New York, where the highest court of that state partially invalidated capital punishment there in 2004.) 12 states and DC ban capital punishment altogether. 19 + 12 + 12 = 43 states that won't allow a defendant under 17 at the time of his offense to be executed; 19 + 12 = 31 states that won't allow a defendant under 18 at the time of his offense to be executed. Federal law also proscribes executing those who commited crimes as minors.

But it's not just the numbers themselves, it's the trend. Seven states raised the minimum offense age for death penalty eligibility and no state lowered it. After Atkins, it was clear that the direction of the movement by state legislatures, as much as the number of them which act at all, is going to point the way for the Court's decision. See Atkins, 536 U.S. at 315 n.18.

So all the complaining about foreign law aside, it's not like Justice Kennedy just pulled Roper out of thin air. If the decision hadn't come down in Roper itself, it was still inevitable based on the direction of the national and state legislative actions to raise the minimum offense age, thereby creating a prevailing standard of constitutional review.

Posted by: The Jaded JD at June 28, 2005 08:39 PM

Incidentally, I should have replied to this earlier:

For example, should the Court have refused to consider new technology in interpreting the 4th Amendment?

Well, consider the first amendment. The first amendment protects free speech - does that mean it only protects direct one-to-one and one-to-many oratory? Of course not; it protects the expression of ideas, through oratory, through the printing press, and by extension, radio, television and the internet. The constitution is capacious enough to grow reasonably; the technology to undertake an unreasonable or unwarranted search under the 4th amendment may have changed, but the fundamental principles have not.

Incidentally, I would go a little further and say that the first amendment was designed to protect the freedom to criticize the government. It has lnog been recognized that the right to free speech is not absolute; it is circumscribed, perfectly constitutionally, by laws against libel and obscenity. Nor has - or surely would - anyone challenge the clear and present danger test or the constitutionality of the fighting words doctrine. It is political speech which the first amendment renders inviolable in my view, and thus I would personally be more wont to uphold a restriction on commercial speech than most of my originalist bretheren.

Posted by: Simon at June 28, 2005 10:20 PM

Well, at least Frist and Reid are talking about a list of potential Supreme Court nominees, which is a step in the right direction.

But let's remember that even the most conservative justices have a way of growing once they're on the Supreme Court. Just ask Ike about Earl Warren.

Posted by: Blue Jean at June 28, 2005 10:59 PM

Jaded JD,

I did read the Roper decision, and you have of course accurately summarized it. I never said it came out of nowhere. What I said was that it essentially enshrines a rule that a trend of 5 states can change the constitution, which is directly contrary to how the constitution itself says it can be changed.

I can see some things that are so beyond the pale by today's standards (having not been practiced for like 100 years or so) that might even be reasonable grounds for using the "evolving standards of decency" approach. But where you are counting states and it is clear that there is still a substantial portion of the body politic which finds a particular punishment appropriate (as is certainly the case with the juvenile death penalty, regardless of the "trend"), then that is not something that has become so horrible to contemplate that it justifies striking down on constitutional grounds.

You can rationalize and logic it out all you want, but you can't change the fundamental fact that in Stanford, Justice Kennedy agreed that it was constitutional to execute 17 year olds and in Roper he agreed that it was unconstitutional to do so, solely because 5 states had changed their position in the interim. That is most decidedly not the rule of law. If every state had outlawed it and there hadn't been a juvenile execution for 50 or 60 or 100 years, then maybe the evolving standards of decency would justify the decision. But we don't have that here.

Posted by: PatHMV at June 29, 2005 01:18 AM

I can see some things that are so beyond the pale by today's standards (having not been practiced for like 100 years or so) that might even be reasonable grounds for using the "evolving standards of decency" approach.

...And that even assumes that the Living Constitution theory (for the original "evolving standards" theory, see Trop v. Dulles, 356 U.S. 86 (1958)), which I do not accept. The Constitution has a mechanism for changing its provisions, and it is located in Article V, not Article III.

Of course the Constitution is an evolving document - it has evolved no fewer than 27 times (or seventeen, if you count the first ten as one bill of rights). Society's evolving standard of decency decided that it was no longer appropriate for one man to be held in servitude to another, so they passed the 13th amendment, and the constitution came into line with the evolving standard of decency. Society's evolving standard of decency decided that it was no longer appropriate for people to be denied the vote on account of the color of their skin, so they passed the 15th amendment, and the constitution came into line with the evolving standard of decency. A few years later, Society's evolving standard of decency decided that the Federal government should be able to tax the people directly, a power it had never constitutionally had since the inception of the Republic, so they passed the 16th Amendment; they felt that Senators should be elected directly, and thus the 17th amendment; they felt that women should have the vote, so they passed the 19th Amendment; they felt it was time for term limits on the chief executive, so they passed the 22nd amendment...And thus the constitution has evolved for two hundred years. There have always been tensions between what the constitution says and society's evolving standards of decency; the framers knew there would be, they provided an amendment process, and for nearly two hundred years, thus was the constitution brought back into line with "society's evolving standard of decency".

And then, as we all know, society's evolving standards of decency mandated constitutional amendmentments creating a right to abortion, a right not to have the death penalty imposed; our evolving standards of decency decided it was now appropriate to repeal the right to confrontation and the public use clause, and any number of other controversial things. Oh - wait. Those weren't settled by amendments, were they?

Posted by: Simon at June 29, 2005 09:52 AM

Simon,

The constitution is capacious enough to grow reasonably; the technology to undertake an unreasonable or unwarranted search under the 4th amendment may have changed, but the fundamental principles have not.

I don't know how you walk around with balls that big. You must have a hell of a time worshipping that deified constitution. Let me guess, on saturdays you worship the one that is capacious when YOU think it's a reasonable application of what YOU think is the proper interpretation of a "fundamental principle." (Which, as we always know, is always 100% crystal clear. NOT)

And then on Sunday you do the fire and brimstone sermon on the constitution that should properly not have been viewed as at all capacious, if it happens that some fundamental principle has been applied in a way which you feel to be overly broad.

Clearly, all these problems with the courts could easily be solved if only we could agree on the exact nature and stretchiness (or lack of same) of each underlying fundamental principle. I'm sure Simon is ready to tell us what these are. Given how easy this is, we are left only to wonder why in the world we've had a philosophical debate over these issues for decades and centuries. Simon's certainty shall indeed set us free.

[C'mon Simon, let me have some fun at your expense. Or are you so entirely unwilling to admit that there's some uncertainty and vagueness in the constitution which has led to the need for judging and interpretation? Are you really going to stick to your guns that the Constiution's clarity is virtually manifest?

Posted by: bk at June 29, 2005 11:40 AM

Brian, the problem with your argument - I mean, apart from the fact that you've still not responded to any one of my challenges to explain why originalism is wrong and The Living Constitution isn't a terrible idea, a gauntlet I'm fairly sure I've thrown down no fewer than four times in the last seven days - is that there's a huge difference between what I wrote above and the position taken by the living constitutionalist.

What I wrote above is simple common sense. The first amendment, for example, at the very least, forbids Congressional limitation on free speech. The mode of speech is not specified, but it has always been understood to mean the content of the speech is the vital and irreductably guaranteed right, and that a restriction on any mode of speech which thereby substantially infracts on the content of the speech should be subject to strict scrutiny. The internet is not mentioned in the first amendment, but neither was the printing press.

By contrast, Justice Kennedy uses "the living constitution" and substantive due process to declare the death penalty unconstitutional in certain cases. Not "stupid", not "pointless", not "inadequate to its stated purpose", not "deeply immoral" (all of which, in my view, describe the application of the death penalty to children or retards in mostly any circumstance), but in violation of the Constitution of the United States of America. I search the text - and the practise of 230 years of law enforcement applied consistently with the understanding of the text - in vain to discover where the Constitution of the United States of America says that you may not be executed under given conditions to be prescribed by the Supreme Court. In fact, the Constitution specifically says that a state can - not must, but can - conduct executions. The 5th and 14th Amendments specifically say that you can be deprived of "life, liberty or property", provided that the due process of law is followed. It is, and was always previously understood, to be a guarantee against capricious and arbitrary government. But the modern Court's 8th amendment jurisprudence has effectively added into the due process clauses of the 5th and 14th amendments the subclauses that one shall not be "deprived of life, liberty, or property, without due process of law, or if they are under the age of 18, or if they are mentally retarded". From where does the court draw its authority to thusly amend the constitution?

The Constitution does not mandate the death penalty, and it does not require it. As a consequence, one must presume, of their evolving standards of decency, no fewer than twelve states have excercised their 10th amendment rights to expunge the death penalty as an acceptable punishment on their territory. There is no provision of the Constitution that says that the US Federal government must permit execution as a punishment for crimes against its laws, only that if it does do so, it must follow the due process of law. So if it's such a terrible idea, if society's evolving standards of decency has rejected it, there should be no problem with, no barrier to, convincing enough of your fellow citizens and their duly elected representatives to abolish it.

But if you can't do that, if you can't achieve the same result the democratic way, whither the societal consensus on which the Supreme Court's action rests? In other words, in any situation where the Living Constitutionalist reaches a given conclusion, not only does he have no constitutional power to change the law, but there should be no need for him to change the law, the consensus already exists, and the democratic route can be taken to the same result. Or, put even more simply: in any case where a law is challenged, the mere fact that the law still exists goes a long way towards proving that society's evolving standards of decency do not preclude the law.

Posted by: Simon at June 29, 2005 12:50 PM

apart from the fact that you've still not responded to any one of my challenges to explain why originalism is wrong and The Living Constitution isn't a terrible idea

This is not an established fact. it's a rhetorical claim you've made. It dismisses all of the points I've made in a variety of places. All in one single sentence. In rhetorical circles, it's called "the big lie." Well done, but I am certain I've both supported my views and countered yours, on multiple occasions. Perhaps not in the way you imagine I should have...?

So throw this "gauntlet" down as many times as you like. It's your gauntlet, not mine. try for 5 or 6 if you like. Saying it more will not make it any less inaccurate or imprecise a statement. I'd be happy to address a specific instance, if you wish, instead of the grotesquely broad and manifestly inaccurate claim you are making here.

I'm also not going to fall into the trap of defending a bad decision that I don't agree with, simply because you've chosen to expound upon the error of Kennedy's ways vis-a-vis his death penalty ruling. This ruling doesn't prove much of anything, other than that interpretive error is possible when one employs living constitutionalism. Which I've never denied. I'm an editor for god's sake. Errors are a way of life. Error management is the real issue.

Interpretive error is also possible under originalism. And this is because the clarity of the constitution varies. That's my gauntlet, should you choose to address it, instead of continuing to insist in various ways that originalism prevents interpretive error due to the godlike power and clarity of the constitution. And please try to do better than using the "appeal to common sense" argument as proof that selected items from the constitution are ironclad paragons of clarity. You seem to me to be a smart enough fellow to know that this is a weak and incomplete argument, if not a fallacy.

Or alternatively and perhaps more charitably, it's your contention that originalism leads to fewer and less consequential errors than livcon? If that's the case, I'll listen to your evidence. Such evidence would consist not solely of a laundry list of livcon-induced errors.

Posted by: bk at June 29, 2005 02:06 PM

Seems to me that you've not really answered any of the criticisms of the living constitution, and you've largely stuck with dismissing my viewpoint entirely while claiming yours is "better". This isn't really that convincing, I'm afraid.

As to the gauntlet, yes, of course interpretive error is also possible under originalism. It's also possible for two originalists to look at exactly the same case and reach absolutely different conclusions, as Scalia and Thomas did only a few weeks ago in Raich, and as, indeed, they have done in many cases since Thomas' appointment. I don't say that originalism is perfect, or that it has all the answers; I just say that it's better than anything else.

Posted by: Simon at June 29, 2005 03:16 PM

Seems to me that you've not really answered any of the criticisms of the living constitution, and you've largely stuck with dismissing my viewpoint entirely while claiming yours is "better".

This is, of course, a reiteration of your previous nonsense. Big lie, round 2.

But just for sh!+s and g!ggles, how about if you feed me one (1.00) single previous criticism of living constitutionalism, and then I'll one of my previous objections to your characterization, (if it's one i've disagreed with) and then you can tell me why I'm wrong.

This might take awhile to finish, as my vacation looms, but I'm up for it. Oh, please don't send me to a lengthy essay elsewhere or re-post it here. Just give me the executive summary.

Posted by: bk at June 29, 2005 04:30 PM

BK,

Origionalism is better because it does not rely on the subjective judgement and consent of 9 individuals ALONE to determine when the most basic laws which govern our society need to be modified and how they should be modified in order to meet the needs of the present day. It relies upon the judgement of the People themselves (and a massive consensus among them at that) in order to make such judgements. This is the very basis of representative government.

If 9 Justices alone have, de facto, the power to change and create the laws as they see fit, then what does representative government mean anymore? It becomes a charade. We might as well re-institute the Monarchy.

Origionalism is better because it actualy allows the people who are governed by laws to have a say in shaping the laws which govern them....Rather then have those laws IMPOSED upon them against thier consent by a body which is UNANSWERABLE to them (save by armed insurection). If you are against Origionalism you are against the idea of representative government.... it's that simple.

Posted by: cengel at June 29, 2005 04:33 PM

Pat,

(1) I didn't say you said Justice Kennedy's decision came out of nowhere; I said there's a common misperception on the Right that it did. (2) If every state had outlawed it and there had been no executions of juvenile offenders for 50, 60, or 100 years, exactly how would the question of the constitutionality of such executions come before the Court for it to decide that evolving standards made such executions unconstitutional? Catch-22?

Posted by: The Jaded JD at June 29, 2005 06:09 PM

JD,

No catch-22. If they had been outlawed and not practiced for 100 years, and then somebody decided to try to reinstate it, then, and only then, might I see some room for "evolving standards of decency". If nobody is trying to impose the penalty, there's no need to declare it unconstitutional. On the other hand, if people have been imposing the penalty consistently since 1789, then it is constitutional and any use of "evolving standards" is to my mind patently undemocratic and improper, leaving us subject to the whim of (in the case of the 2 decisions on the 10 Commandments) a single member of the Court.

And whether people on the Right thing Justice Kennedy's decision in Roper came out of nowhere or not doesn't change the fact that it is a wrong decision, a decision which is very clearly predicated on only one changing factor, that 5 states changed their position on the wisdom of the policy in question between Stanford and Roper. And who is to say the legislators who voted that really wanted to give up the option, period. Maybe they just wanted to try an experiment for awhile and see what happens. Kennedy and the other 4 justices in the Roper majority gave those 5 states the power to amend the constitution, and didn't even bother to ask if that's really want they wanted to do.

Suppose all 5 of those states (actually, only 4 of them passed laws, 1 had a state supreme court strike it down on state constitutional grounds) suddenly passed new laws imposing the juvenile death penalty, much as Rhode Island intends to defy the Court's ruling on medical marijuana. Would a new appeal on the juvenile death penalty then reach a different result, because the "trend" is going the other way?

Posted by: PatHMV at June 29, 2005 07:11 PM

Brian,
I'll pick an easy one for you. ;)

The Framers recognized the need for the Constitution to grow and evolve. As a consequence, they understood that some process by which the Constitution could be amended was absolutely necessary. Having considered several alternatives, they settled on a system whereby changes to the meaning of the constitution needed ordinarily to be ratified by supermajorities of both Houses of Congress, and then a supermajority of the states. See Federalist 43, 49 and 85; Barbash, supra, at 192-194.

The Framers unquestionably intended and understood the Constitution to have a fixed meaning - they argued over EVERY detail, right down to whether the punctuation mark immediately before the words "to pay the debts" in Art. I §8 Cl. 1 should be a semi-colon or a commar (see Barbash, supra, at 199).

With these things in mind - that the Framers understood the meaning of the constitution to be fixed but subject to an amendment process which noticably does not mention the Supreme Court - why should five unelected lawyers with life tenure be permitted to substantially redefine the meaning of the Constitution?

That's the question. :)

Note, by the way, that "but they can't substantially redefine the constitution" isn't really a valid answer, because they can, they have, and in Kelo, they continue to do precisely that. Also, "why should the Framers' understanding be binding on people who didn't ratify the constitution" - the "dead hand" argument - isn't relly an answer either; anyone who uses the "dead hand" argument must explain why any generation owes any allegiance to any law which they didn't personally vote for. The "dead hand" theory is effectively an argument against the rule of law per se.

I know, you said no essays, but this isn't simple stuff we're dealing with, and I rarely forsake clarity for brevity. ;)

Posted by: Simon at June 29, 2005 11:09 PM

Cengel,

If 9 Justices alone have, de facto, the power to change and create the laws as they see fit, then what does representative government mean anymore? It becomes a charade.

this must be the nth iteration. It's not the logic of your if-then statement that I disagree with. It's your characterization that under the current circumstances, the SC has power to change and create the laws as they see fit. That's hyperbolic overreaching. The words in the constitution have meanings whose precision varies. Judges must stay within the meaning ballpark that each amendment describes, but they may roam within the ballpark. That doesn't bother me in general. Sometimes it means that they have chosen to say that which is not ballpark really is ballpark. That's bad, but it's not unfixable. And IMO it's worth risking from time to time in order to make the system work better and faster to provide justice from day to day.

Posted by: bk at June 30, 2005 01:20 PM

The Framers unquestionably intended and understood the Constitution to have a fixed meaning - they argued over EVERY detail, right down to whether the punctuation mark immediately before the words "to pay the debts" in Art. I §8 Cl. 1 should be a semi-colon or a commar (see Barbash, supra, at 199).

Simon, perhaps you are bound to consider this to be a cop out. However, when i say the following,consider that I am a math textbook editor with over 12 years of experience:

I am intimately familiar with haggling over semi-colons and commas and how they affect meaning. I am also intimately familiar with subsequent arbitrary decisions. Dictionary usage panels have been know to split 5-4. God bless odd numbers. So, let me say that I know and understand your point. I acknowledge it, and I admire the intent you describe. However, all of my experience tells me this: the haggling you describe and and the agonizing over precision cannot fix a fools errand. My sense of this ideal precise constitution you describe is that it does not exist. It's a pipe dream.

Quickly, I also acknowledge the merits of the idea of a conservative approach calling for a careful process for allowing any changes, the amendment process you always defend. And yet most would admit that justice delayed is justice denied. I think the fair-minded would admit there's substantial tension between a respectful and lengthy bureaucratic process (amendments) and the everyday need to provide justice and redress.

As I've said before, I believe that the constitution should be acknowledged as a means. A great and worthy means, but nevertheless a means to a greater end, that of providing justice and protecting liberty. I agree that this end is vague and amorphous. However I see no alternative to leaving it undefined while still aspiring to it.

Posted by: bk at June 30, 2005 01:34 PM

Brian,

But who decides that the speedy redress is indeed justice? The problem with the judicial function which the justices have abrogated for themselves is that they are the only ones who, functionally, get to make that decision. Let's use the juvenile death penalty for a moment. We start from the premise that 16 years ago, at least, it was constitutional. That's what the Court said, that's what Justice Kennedy agreed.

Now suppose that 51% of the population of each state decided that they didn't want to impose the death penalty on 17 year old murderers. Under the Court's current interpretation, those 51% have functionally amended the constitution. While they dress it up in all kinds of flowery legalese, there is no real principle behind it other than, it makes us a little personally uncomfortable, and it looks like many of the states are getting rid of it, therefore we're going to throw it out.

And by making that decision, which is, no matter how much they say otherwise, based in part on their personal feelings toward that punishment, then they have taken a policy which previously could be made by a simple majority of the people from state to state and turned it into the opposite policy, and prevented it from being changed except by a massive and unwieldy amendment process.

Look, if you feel more comfortable replacing everywhere Simon and I say they can't or shouldn't do it with saying that they have simply gone way, way too far with it in a whole slew of recent cases, that's fine with me (probably not with Simon). But Roper is simply indefensible if you believe that policy decisions should be made first and foremost by the democratic process.

Posted by: PatHMV at June 30, 2005 01:48 PM

Pat,

Like I said, I'm not going to defend Roper or Kennedy.

But I think you're pretty much on target. I think they've sometimes gone too far, and my take is that the extent of over-reach varies.

It's a risk I'm willing to take, in general. And deal with the adverse consequences as they arise. Noting that I mwention risk, part of my argument is related to risk-reward reasoning. Letting the justices have some leeway is risky. This has led to both costs and benefits.

While some oversteps have been regrettable, don't you agree that at least in some cases, the circumstances of the times have put judges in positions where they were called upon to exercise moral courage and leadership, and that the nation was better off because of it? It's dicey to imagine history as it might have happened, but is it so unfathomable to speculate that, at crucial instances, our nation would have been set upon a crueler, meaner, and even unchristian (if you are a new testament fan) path if justices had declined to take a dilemma by the horns? Had they at these crucial instances chosen instead to act only as technicians, can you be so certain we'd be better off? My sense is Simon seems more certain than you on this matter...

Posted by: bk at June 30, 2005 04:34 PM

I'm just not quite (by a hair) as absolute on the issue as Simon. Simon is definitely more logically consistent than I am on the point, however.

And your post illustrates why I am not in favor of impeaching judges or limiting their terms, etc. I strongly supported and spoke out in favor of judicial independence in the Terri Schiavo case, for example.

But it's also why I am strongly (very strongly, in case you haven't noticed ;) in favor of appointing judges who are far more textualists or originalists or constructionists (I'll leave it to Simon to parse the fine points of those views) than Kennedy, O'Connor, Breyer, Souter, Ginsberg and Stevens are. I also think they have developed a political deaf ear and really do not see the harm they are doing to the country by removing such highly controversial subjects from the realm of public debate.

I would also point out that for every Brown v. Board of Education (entirely appropriate and straightforward application of the 13-15th amendments) there is a Dred Scott or a Plessy v. Ferguson decision which has horrid, horrid effects on society.

Posted by: PatHMV at June 30, 2005 05:10 PM

I would also point out that for every Brown v. Board of Education (entirely appropriate and straightforward application of the 13-15th amendments) there is a Dred Scott or a Plessy v. Ferguson decision which has horrid, horrid effects on society.

I'm not trying to pile on here, Pat, but I believe "Dred Scott" and "Plessy" were affirmations of the status quo, while "Brown" overturned nearly a century of segregation. Sure, the former two cases are horrible from our modern standpoint, but to the slave holders and former slave holders (arguably among the richest and most influential people in the country at the time) "Plessy" and "Dred Scott" were welcome confirmation of their power, even--dare I say it?--their conservatism. ;-)

Posted by: Blue Jean at July 1, 2005 12:35 AM

Hiya, Jean! Been missing you... :)

My point with Plessy and Dred Scott was simply to point out that the court is not universally a force for goodness and progressiveness. I don't want a "conservative" court, I want a court that merely applies the constitution as written. Plessy was a very strained application of the 13th through 15th amendments. If the court had been doing its job, it would have had no problem realizing that "separate" was inherently and irremediably unequal. Jim Crow laws were, by my reading of the 14th Amendment, patently unconstitutional, yet the Court strained the words of the Amendments to uphold them. A plain reading would have required tossing the segregation laws out.

And don't forget that it was recently the "liberal" judges who were in favor of governments seizing private property to give to for-profit entities based primarily on the government's whim. And it was the "liberal" judges (plus Scalia) who were in favor of having federal anti-drug laws trump state laws on medical marijuana.

Dredd Scott was a politically-based decision, with the court seeking to settle a political issue in the hopes that it would quiet down the political debate. It had, of course, the opposite effect. The Court guessed wrong (as it often does when trying to guess the public mood). A textualist or constructionist or even an original intent approach to the case would (as the dissent pointed out) have resulted in a different result. They were, in other words, being activist judges, overturning an act of Congress (only the 2nd time the Court had ever done so) which was, in reality, perfectly valid, simply because they themselves didn't like it. See the Wikipedia article.

Also, as I noted either here or in the "Justice Graham?" thread, the justices at the turn of the century went out of there way to invalidate acts of Congress imposing quite reasonable wage, hours, and working conditions laws on businesses. Again, they were being activist judges interposing their own will in place of the democratic process.

Posted by: PatHMV at July 1, 2005 01:17 AM

If the court had been doing its job, it would have had no problem realizing that "separate" was inherently and irremediably unequal.

I cound NOT possibly disagree with that more. There's nothing inherently unequal about separation. It depends entirely on the context and the application. Start talking about single-sex schools (gender segregation) and you'll find many, many rational and passionate supporters arguing that separate is in fact "more equal" and that together is inherently "less equal."

The larger problem in the context of racial segregation was that the equality part was only a pretense. Conditions were demonstrably unequal. But making only a narrow ruling that equality was not being provided would not have resolved the more pernicous designs for which segregation was intended.

Pat, your claim that the ruling was an obvious straightforward application supports my ongoing suspicion that among originalists, a constitutional application tends to look straightforward when it's one you agree with, and tends to look tortured when its one you don't agree with. Not always, but at least occasionally. It's a sin we're all prone to in one form or another.

To be clear, I'm ecstatic that a judge ruled that "separate is inherently unequal" in spite of the obvious logical stretch required. Life put the judge in a position that demanded a ruling based upon moral courage, and we're the better for it that he drew upon his, instead of extending unjust torment by acting as a reticent technician.

Posted by: bk at July 1, 2005 08:45 AM

Pat,

Awww... you’re sweet. I missed you too. I hope the e-card I sent you didn't make you deaf. I would hate for the last thing you heard to be a Sousa march. ;-)
I’m sure we’ll have lots to argue about during the Confirmation days. :-)

That being said, I agree with Brian. (Saw that one coming, didn't you?) There are times when separate but equal can be equal, but that's rare. For example, at the Wailing Wall in Jerusalem, there's a curtain that separates the men from the women. Both sexes get to pray, but they pray separately.

However, particularly where the races are concerned, separate but equal doesn't work. Back in my hometown, there’s a beautiful old movie palace called the Missouri. (How old is it? It’s so old that the decor is modeled on Versailles, and it has a balcony as well as a main floor) Now, in the bad ol’ days of segregation, if African Americans wanted to see a movie at the Missouri, they had to sit in the balcony, while whites got to sit on the main floor.

Now, for “Plessy” to be fulfulled, both whites and blacks would have equal access to the main floor, but whites would sit on the left and blacks on the right, or something like that. I suppose they could have been separated by a curtain or something, but that would have interfered in the view of the screen. ;-)
It was this and countless other inequalities that made the SCOTUS overturn “Plessy” in favor of “Brown”.

Yes, "Dred" was a dreadful decision: that we agree on. :-)

I'm glad you support the Congressional laws regarding wages, hours and working conditions at the turn of the century, but there have been courts who have been as activist in the conservative tradition as there have been courts who were activist in the liberal tradition. Remember "the switch in time that saved nine".

Feel free to check Friday's open thread if you'd like to see my own reaction to Kelo. Alf says I'm "demonizing" W again, but I actually think the WH has been smart to remain silent on that decision.

Posted by: Blue Jean at July 2, 2005 07:54 PM