Thursday, September 11, 2008

Framing the Founders Founding the Framers

The point of any legal argument is to get what you want.

In an adversary system of justice, lawyers for each side cite legal principles, look for loopholes in the plain text of the law, try to find some plausible presentation of constitutional framework. But they’re not concerned with “the majesty of the law.” They want a desirable result for their client.

Courts, especially appellate courts, are supposed to be above all that. Judges are expected to sustain the principles, the constitutional framework, the plain meaning of legislation and statutes. When a case comes up on appeal, the lawyers for each side strain to open up the law for a desired result, while the judges try to squeeze the facts of the case within the framework of established law.

Into this melee fall such highbrow arguments as "Original Intent," "State's Rights" and "New Federalism." The people who made up these cute phrases weren't altruistically committed to ferreting out what was on the mind of the Founding Fathers of Our Republic. They were looking for ways to stop things they did not appreciate and advance a program that they approved of. The advocates of "A Living Constitution" are doing more or less the same thing, only approving and disapproving of more or less the opposite.

Everyone with an ax to grind remakes The Framers in the image that the speaker finds to their own personal taste.

Samuel A. Marcossen published a book in 2002 entitled Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. The first chapter was a pointed and amusing speculation on how Justice Clarence Thomas might rule if Loving v. Virginia came up for hearing when Thomas was on the court. That's the 1967 case which ruled that the 14th Amendment restrains states from forbidding a man and woman of legal age entering into marriage when they happen to be of two different "racial" categories that some state bureaucrat or legislature has created.

"Black" and "white" are two of the more common such absurdities in American history. Thomas, of course, would be classified as "black" by any such scheme, his wife would be classified as "white," and they live in Virginia. (Her name is also Virginia.) By the terms of his own written opinions, Thomas might well feel constrained to rule that, although laws such as Virginia once had on this subject were morally wrong, the federal constitution does not restrain states from passing such laws, and the federal courts would be indulging in legislation from the bench to overturn them.

Marcossen goes on from this promising beginning to destroy any value his argument might have. He argues that the proper standard to evaluate a constitutional argument, which comes before a federal appellate court, would not be "is it original?" but "is it legitimate?" The danger of using an adjective such as "legitimate" should be obvious. Legitimacy is in the eye of the beholder. It is an infinitely elastic word.

A constitution, by its very nature, is a fundamental framework for government. It says very little about what is or is not appropriate legislation. It does however make the basic allocations of what authority the government may exercise, and what branch or level of government may exercise it. As Justice Hugo Black eloquently observed, when the First Amendment says "Congress shall pass no law..." it means Congress shall pass NO law. IT does not mean "Congress shall pass no law unless..."

At the time of the New Deal, the Supreme Court, for a time, rejected a great deal of federal legislation on the ground that it went beyond "regulating interstate commerce" to interfere with what the court found to be intrastate commerce. Many advocates of "original intent," who have arrogated to themselves the label "federalist" honestly dream of rolling back the New Deal, repealing minimum wage laws, as well as the National Labor Relations Act, and then getting rid of subsequent legislation such as the Occupational Safety and Health Act, the Clean Air and Water Act, and sundry other programs.

Advocates of preserving such innovations argue that the constitution is a "living" document which must adapt to new situations. Anthony M. Kennedy, certainly a conservative justice, observes that the framers "made a covenant with the future."

So is there a better way to examine the constitution? Can we achieve judicial review which serves neither as carte blanche for social engineering over the dead bodies of libertarians, nor as open season for concentrating wealth into fewer and fewer hands? Of course there is. And this is the only place in America you can read it.



The plain meaning of the language of the constitution, and the original intent of those who wrote, signed and ratified it, is paramount, insofar as it defines what powers each branch, level and department of government may exercise, and what powers each level, branch and department is prohibited from exercising. There IS however, an objective covenant with the future, which is not up for grabs according to the political whims of the moment.

For example, when the constitution was written, most commerce was local, or intra-state. Interstate commerce and international commerce applied to a rather limited sector of long-distance trade. Today, there is no question that almost our entire economy is at least interstate, and a huge part of it is international. Therefore, while congress might have had no power to pass a federal minimum wage law in 1779, it unquestionably had such power in 1939. That is not because a “living constitution” is infinitely flexible, but because the inexorable forces of the free market have made interstate commerce a much bigger deal than it used to be.

Likewise the Fourth Amendment's protection of "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures…” certainly did not envision that government agents should refrain from tapping a telephone line without a warrant. That is because there were no telephone lines to tap in 1783. The fundamental framework of the Fourth Amendment can only be meaningful if it can be expanded to apply to new technologies.

Otherwise, we would have to pass a constitutional amendment to account for every substantial new invention which becomes an important part of public and private life. That would contradict the very nature of a constitution, a framework which defines what power the government has in the first place, what is and is not a legitimate matter for government intervention. Such a framework should be tampered with very seldom, therefore it should be flexible enough to apply enduring principles to new developments over time.

Of course amendments, by their very nature, establish constitutional boundaries which were NOT contemplated by the Framers, although the amendment PROCESS was provided for. Few of us would wish to be without the Thirteenth Amendment today, but at the time the original constitution was ratified, slavery was not only accepted but provided some measure of legal enforcement. Dred Scot v. Sanford was not a bad statement of constitutional law as it existed at the time Justice Taney wrote his infamous opinion. It was overturned, not by changing the composition of the Supreme Court over time, with the death of old justices and appointment of new justices, but by four years of bloody civil war, which created the political atmosphere in which such an amendment could pass.

The Fourteenth Amendment, which has done far more for the civil liberties of "white" Americans than those of "black" Americans, wrought still another revolution. It implemented something James Madison had advocated, which a majority of the constitutional convention had rejected. It protected the civil rights of individual citizens from the police powers of the states, not just the federal government. Rightly so, for as Madison observed in The Federalist Papers, a tyranny is easier to establish in a smaller jurisdiction, such as a state, than in a larger territory. States, no less than the federal government, can trample on the rights of “the people.” Or as Mark Twain put it, “No-one’s life, liberty or property are safe while the legislature is in session.”

Some men have said of women, “You can’t live with them and you can’t live without them.” But this is much more true of government. We all have a desire to be left alone, and a desire to impose laws upon our neighbor. The constitution is the foundation of whether the government can, or cannot, exercise the power that whoever is in power would like to exercise. If the constitution says no, it doesn’t matter if it would be a good idea. The government can’t do it. It’s as simple as that.

Standards of Death

As a citizen who generally distrusts the death penalty, I must admit I am not comfortable with the recent Supreme Court ruling restraining states from imposing the death penalty for the rape of a child. The first question in constitutional law is not "should those who rape one or more children be executed?" The first question is, does the plain language of the federal constitution prohibit states from imposing a death penalty for this crime? Constitutional law deals with whether a branch of government, at some level, federal or state, has the power to pass a law at all. If it does, then it is indeed up to the legislative branch whether to pass one or not, and what to put into the law if one is adopted.

The constitutional provision at issue is the Eighth Amendment, which prohibits "cruel and unusual punishment."

That is a hard phrase to interpret. Nothing would seem more appropriate for interpretation in light of the "evolving standards" of a civilized nation. There have been human cultures in which a father had the legal authority to kill a disobedient child. Most of us wouldn't stand for that now. At the time the federal constitution was ratified, some states still used the ducking stool and the whipping post. That would be considered cruel and unusual now.

But it is parsing things rather finely to say that "the evolving standards of society" accept the death penalty for some crimes, but not for others. A ruling that any execution is unacceptably cruel would make more sense. Death is or is not cruel, death is or is not a just and acceptable penalty. On the other hand, if a state legislature adopted a statute providing for execution of habitual traffic offenders, most of us would expect the federal courts to overturn the law as providing for cruel and unusual punishment. It is simply out of all proportion for the crime.

I distrust the death penalty because our government is imperfect. Our legal system makes honest errors, and is subject to all kinds of corruption and manipulation. Not anywhere close to 100% of the time, but often enough to worry about. If someone has been wrongly imprisoned, we can release them, offer official apologies, compensate them with money. Once they are dead, no amends are possible, except to clear their name for the history books.

On the other hand, I admit to some admiration for John Grisham's perspective on the death penalty in his early novel, A Time to Kill. Grisham's protagonist observes "Carl Lee Hailey does not deserve to die, but the men who raped his daughter certainly did." (Hailey, a hard working family man with a dark complexion, took killing the men - the lowest predatory characters who ever justified the stereotype “poor white trash” - into his own hands. Hailey is therefore on trial for capital murder himself.) Grisham also observes, in a back-handed critique of the NAACP Legal Defense Fund Inc., that “Most Southern blacks along with most Southern whites who faced the gas chamber deserved the gas chamber."

There is a certain pragmatic accuracy to both observations. There is also a long history of southern courts executing twelve year old boys with dark skin for shooting the white man raping their mother, and executing the mother as an accessory. One hopes that if such a clear cut injustice occurred today in any state court, the federal courts would firmly overturn the guilty verdict as well as the sentence. Because it is “cruel and unusual punishment”? No, because there is no evidence that a crime has been committed. There is no more obvious case of justifiable homicide than killing a man in the very act of raping your mother.

Because the government is imperfect WOULD BE a sound reason to constitutionally ban all executions. There is a fundamental question, is the government competent to hold such power at all? However, no such provision exists in the constitution. It would have to be added. “We the People of the United States, who generally do not trust our government at any level, have concluded that our distrust of government is greater than our desire to see certain depraved criminals die for their crimes, and therefore enact that the penalty of death shall not be inflicted by any legal process in the United States.” That is not in the constitution at present. The Fourteenth Amendment, which provides that no person shall be deprived of “life, liberty or property without due process of law” strongly suggests that a person may constitutionally be deprived of life BY due process of law.

Who "deserves" to die is really not an appropriate question for constitutional law at all. The constitution deals with what powers the government has, not how it should use those powers that "We The People" have delegated to it. IF the government may impose a death penalty at all, then it is up to the legislative branch what crimes a convicted defendant should be executed for. Except if some state enacts a death penalty for third offense drunk driving. That would be so over the top that we would expect the courts to strike it down. Oh, maybe not. Maybe Mothers Against Drunk Driving would file an amicus curiae brief supporting the law. And armed robbery would be sort of in a gray zone, wouldn’t it? In England, a child could at one time be hanged for stealing anything worth twelve pennies or more.

If any crime is punishable by death, it would seem that rape of a child under the age of puberty by an adult over the age of eighteen would qualify. Many murders are less depraved. Murder can be very cold blooded, but it is often an act of desperation, without much thought at all. Rape requires a depravity that may also be present in murder, but not always. And a child? As Grisham also observes, that can inspire pure undiluted rage, and an overwhelming desire to put the perpetrator out of this world, Carl Lee Hailey’s way or by state law, but gone forever, one way or the other. The problem with vigilante justice is not so much that a guilty person dies sooner, but that often an innocent party is murdered, without considering the evidence, or a mob exacts death for a crime that has a much less severe legal penalty.

Somehow, the Supreme Court needs to do better than this. There is plenty of cause to severely limit the powers of government to make private acts a crime, or to intrude into personal and family lives. But a vague reference to “the evolving standards of society” with regard to defining the exact penalty that is commensurate with the rape of a child does not do much credit to the principle of judicial review. Maybe its excessive, maybe its not, but as Justice Antonin Scalia said on one of his better days, the constitution does not mean what we would like it to mean, it means what it says. We need judicial reasoning that rests firmly on what the actual language of the document really says.