by publius
Orin Kerr slyly asks whether Yoo’s torture memo would be accepted under Jack Balkin’s “living constitutionalism” (If you want background, Balkanization has a series of fascinating posts debating this theory). The short response to Kerr, though, is that Balkin’s theory isn’t that “any change is ok.” Kerr’s jab does, however, illustrate a different problem with the “living constitutionalism” theory – specifically, its “brand” problems. In other words, it’s not the theory’s internal logic that bothers me, but the marketability of the narrative. Granted, focusing on such superficial concerns is a bit silly. But we are living in a postmodern world, and I am a postmodern, um, girl.
My fundamental gripe with “living constitutionalism” is that it sounds defensive. More precisely, it seems conceptually rooted in a larger narrative that has been defined by conservatives. In more popular circles, the great conservative legal narrative has been that the Constitution is largely unchanging, and should thus be “interpreted” according to the “true” meaning of the text as it was originally understood. No politics here, no sir’ee Bob.
The critique of liberal judges, by contrast, is that they “legislate from the bench.” Unlike purely objective conservative judges like Scalia, liberal judges read their policy preferences into the text. In this way, they achieve results that liberals could not otherwise achieve at the ballot box. (ed. You mean like Bush v. Gore? No, they were just interpreting there).
Anyway, it’s all a bunch of crap. Constitutional text is indeterminate, and so Justices across the political spectrum have throughout history interpreted text in a manner consistent with their political and policy preferences. They have also adopted interpretative methodologies that (with occasional exceptions) align with their politics. This is all to be expected – Justices are appointed by political officials. (On an aside, and for that reason, the idea that their nomination process should not be politicized strikes me as naïve).
The Great Borkian Fraud then is that conservatives managed to cloak their policy preferences in aesthetically compelling narratives – textualism and originalism. Their policy preferences magically transform into “the plain meaning of the text” or “the original understanding of the Framers.” Liberal judges’ decisions, by contrast, are “legislating from the bench.” Hippie hatred thus provides the foundation of not only American foreign policy, but modern constitutional jurisprudence as well.
All that said, I have a grudging admiration for their efforts. Like Marx and Freud before them, the Borkians have created a universal philosophy that can provide a superficially “objective” answer to any question. The logical and aesthetic power of these narratives has, frankly, pummeled legal progressive narratives in the court of public opinion in recent years. Far too many Americans believe that progressives love nothing more than to change the Constitution in hippie ways, while conservative judges remain dutifully faithful to our Framers’ text.
With this background in mind, you can see why I chafe a bit at the term “living constitutionalism.” To me, it reinforces what has proven a quite successful conservative narrative. The phrase – despite Balkin’s goals and intentions – lends itself quite easily to charges of “liberals want to change the Constitution for political reasons.” To embrace that label (which I consider distinct from the quite impressive nuts-and-bolts of Balkin’s theory itself) is to implicitly reinforce the Borkian critique. In doing so, it gives conservatives too much credit. It implies that conservatives reject a living Constitution, when just the opposite is true. It’s just that they call “living constitutionalism” “fidelity to the original understanding.”
In a sense, though, I respect what Balkin is attempting – it’s rather daring. He’s taking a critique, loading it up with theoretical punch, and turning it back on conservatives. It’s similar in this respect to his embrace of the “originalism” narrative. He’s stealing the narrative and trying to make it his own.
While he’s forgotten exponentially more than I know about constitutional law, I chafe at adopting even the originalism label. These conservative narratives can’t be co-opted – they need to be completely transcended, particularly originalism. With the exception of communism, never before has such a silly theory attracted such intelligent followers. Reading extended, excruciatingly-detailed dialogues about originalism on conservative legal blogs is more like a black comedy. (For instance, from what I can gather, the only texts that are ever at issue involve matters of “construction” rather than “semantic meaning” – so what’s the point? The “four years” clause is never litigated, but “due” process is. To borrow from Larry David, it’s a debate about nothing).
Frankly, I don’t understand why we need constitutional theories at all. They all seem necessarily Procrustean to me. In fact, the phrase “constitutional law” is itself misleading because it covers such an immensely diverse field of topics. Maybe the best “theory” is no theory. Maybe it’s best to do away with them altogether and adopt a “disaggregation” strategy.
Think about foreign policy – we don’t have (in practice) a unifying theory telling us how to deal with different parts of the world. The actions of China call for different responses than the actions of say Burma or Egypt or the Taliban. In foreign policy, we divide the world up into smaller parts and pursue the policy that best fits that unique part of the world.
Why can’t we do the same in constitutional law? (Maybe we already do). Why don’t we spend more time talking about our theory of Fourth Amendment law, or our theory for searches incident to arrest, and less time trying to integrate this diverse field into one unifying theory – or even worse, trying to squeeze this specific area of the law to fit (Procrustian-style) some broad abstract theory.
Anyone with the least familiarity with 20th century philosophy — and I mean analytic philosophy, not pomo deconstruction — knows that talk of fixed abstruse meanings spanning the centuries gets you next to nowhere. Meaning-talk simply absorbs the questions you would like it to answer.
And yet the insight is old. Officially speaking, the Talmud legitimated itself as a running attempt to recover the oral law claimed to have been given to Moses at Sinai alongside the written law set out in the Torah. It came to be seen, in other words, as an originalist exercise, pure and simple.
Yet a remarkably candid Talmud passage (and it’s often candid in this way) tells of God having transported Moses in time from Sinai into a class being taught by the rabbinic sage Hillel. Moses returns to tell God he couldn’t understand what on earth they were talking about.
Legitimation through originalism is not hard to poke fun at, least of all from within. The wonder of it is that after all our intellectual efforts to dethrone it, it continues to rear its odd-shaped head more gallantly than ever, and the first thing we’ve lost in reference to it is our sense of humor.
Partly to excite some debate – maybe one should go with my position (as a non American I admit).
It can be summarized as “the founding fathers tried their best but your constitution is inferior and your country suffers as a result – you would have a significantly superior democracy if you threw it out and wrote the best bits back into normal law.”
All this pussy footing around saying “the constitution doesn’t mean that” or “meanings have changed” you can just say “they aren’t any smarter than the best minds today and they got it wrong”
There is a unifying foreign policy and it comes from some Harvard nuts ught.
As far as Moses, he was using lucifer to do his miracles and God probably wasn’t happy. So, he figured he was in hell.
To my knowledge the constitution was not “made for eternity” but at least some of the Founders thought that it should be updated* or replaced on a regular base. Admittedly today it would be more or less impossible to draft a new constitution and have it ratified by a necessary high majority (neo-feudalists, anarchists, bleeding-hearters and soulless pragmatists would not unite behing anything, not even the right to breathe**)
*not the same as amended
**breathing air would be seen either as something that should belong to a corporation, the state (or the federal government), the individual etc.
Well, you’ve convinced me that we need term limits for the Supremes if nothing else…
The big problem with living constitution theory, so far as I’m concerned, is that it deprives us of all the considerable advantages of having a written constitution.
Indeterminacy? Please, that’s a bait and switch. Living constitutionalists prove that the meaning of words like “reasonable” is a bit ambiguous, and having established that to their satisfaction, proceed to act as though words like “no” were semantic vessels which can be filled with anything, including “yes”. Yes, the Constitution is a bit ambiguous on some points. No, it ain’t nearly as ambiguous as you pretend.
Think about foreign policy – we don’t have (in practice) a unifying theory telling us how to deal with different parts of the world.
Actually during times when the administration in power doesn’t provide critics with the sort of world historical foreign policy disasters that this White House has produced (which among other things provides a huge softball for those critical of its approach to foreign policy), hostile pundits often spill a lot of ink on the supposed incoherence of President X’s foreign policy. And administrations, in turn, are constantly propounding “doctrines,” usually but not always named after the president, that supposedly make their foreign policies predictable, coherent and consistent.
To take one random example, look at this Walter Isaacson piece on Madeleine Albright and Kosovo from the May 17, 1999 issue of Time magazine.
Albright’s critics are said to believe that the war in Kosovo is “the latest example of an incoherent foreign policy driven by moral impulses and mushy sentiments, one that hectors and scolds other nations to obey our sanctimonious dictates and ineffectively bombs or sanctions them if they don’t.” But, Isaacson suggests, it’s really a test of “the Albright Doctrine that has held sway since her ascension to Secretary of State: a tough-talking, semimuscular interventionism that believes in using force–including limited force such as calibrated air power, if nothing heartier is possible–to back up a mix of strategic and moral objectives.”
This rhetorical reliance of foreign policy doctrines is, in my opinion, much sillier than the felt need for constitutional theories.
That last sentence should begin: “This rhetorical reliance on foreign policy doctrines…”
(Memo to self: preview is your friend.)
Further, “living constitutionalism” sounds defensive? Of course it does! You’ve got a Constitution that says one thing, courts ruling it means another; This is inherently a situation which has to be defended, and living constitutionalism is that defense, which wouldn’t be needed if there weren’t an obvious gulf between text and court rulings.
Really, the more I read defenses of living constitutionalism, the more I’m persuaded that the objection isn’t to our constitution in particular, but to the very notion of having a constitution that’s actually capable of saying “no” to something the objector wants done.
There’s enough ambiguity so that you get circuit splits leading to cert on most of the issues that get to the Supreme Court. It’s not really about what this, that, or the other clause means in some abstract sense, but how it applies to the specific set of facts in litigation.
And, as Chief Justice Marshall put it in M’Cullough v. Maryland, you have to keep in mind what it was they were trying to do: not resolve each and every issue that might come up, but to provide a framework for the government.
There are a number of questions I think have been wrongly decided — and some of them go back to debates in the first or second Congress about allocations of powers. Issues upon which Hamilton and Madison profoundly disagreed, arguing from the same text. Now there’s a huge expanse of country between Hamilton’s Executive and John Yoo’s, but there’s also quite a bit between Hamilton’s and Madison’s. We resolve this not by adopting some kind of marketing-inspired labelling, but by muddling through: approaching each dispute with the text and the common law of the Constitution at hand.
Term limits for justices, just like for office-holders, “cures” the problem by making it worse. Doubling the number of appointments/confirmations isn’t going to depoliticize justice. (Just as giving legislators a shorter time to make their mark doesn’t make them more attuned to public wishes).
The real problem here is a matter of successful marketing, not better
constitutional analysis. ” Original intent”, the ” constitution in exile”, etc.,
were a matter of brilliant slogans, linked to a compelling narrative. The
founding fathers , who were “men like gods” and “united with one
accord” delivered unto people the Constitution- an unchanging Holy Word,
perfect and spotless, to be treated and read like Scripture. Judges were
appointed to guard the Holy Word and and not change it in any way. But
at some point (1908, 1932 or 1954-the chronicles are in conflict on
this point) darkness came in. Liberal judges were appointed, who twisted
and defiled the Holy Word, the way a filthy reprobate corrupts a young
virgin. However, a band of heroes ( The Federalist Society) have
counterattacked and are working to restore the Holy Word back to its
original purity.
What liberals really need is not better constitutional analysis, but better
slogans and above all a compelling counter narrative that hooks into
American beliefs in the same way as the conservative narrative does.I
think that criticism of the conservative narrative is not enough either.
What liberals need is their own narrative.
CC: Doubling the number of appointments/confirmations isn’t going to depoliticize justice.
I believe it would depoliticize the confirmation process to an extent. Each side today seems less concerned with getting their guy/gal on the bench than they are horrified at the thought that the other party’s guy/gal will be interpreting “text in a manner consistent with their political and policy preferences” for a couple of generations. Staggered six year terms would provide for some continuity between administrations while still allowing for the overall makeup of the court to change much faster than it does now. And I do think it would help to depoliticize the court overall if they weren’t making decisions that the rest of us are (mainly) stuck with for life. Plus you’d have a hard time convincing me that an 88 year old retains the mental acuity of someone closer to middle age. You have to practically carry them out on a stretcher to get rid of them now.
One problem I have with your argument is that saying “the Constitution is indeterminate” does not mean “the Constitution means anything.” Plenty of “progressive” constitutional rulings simply cannot be characterized as interpretation of the constitutional text. For example, try as I might, I can find nothing in the Constitution which says states cannot prohibit gay sex. The words of The Constitution may mean many things, but one of them is not “gay sex is a constitutional right.”
But let’s suppose you are right. Let’s suppose we agree that the Constitution is radically indeterminate, so much so that it can mean, well, basically anything. Isn’t that an argument for doing away with judicial review? If they’re not reading the Constitution and doing what it says, but instead doing what they want while pretending to read the Constitution, why give them that power?
“Staggered six year terms would provide for some continuity between administrations while still allowing for the overall makeup of the court to change much faster than it does now.”
A constantly changing SCOTUS, and thus a constantly changing understanding of what appellate law is, strikes me as an extremely wonderful idea if our goal is to raise the number of lawyers necessary to keep the country running by perhaps two orders of magnitude, but the downside of this seems rather high to me.
A constantly changing SCOTUS, and thus a constantly changing understanding of what appellate law is,
I think Gary’s fear is overstated. A system that has lots of relatively small adjustments can work better than one that follows strict rules with occasional random and dramatic shifts.
I tend to agree with Steve that limited terms have a lot of merit, though six years feels a litte short. An eighteen-year term is often suggested, and that sounds better to me. Among other things, we don’t want a Supreme Court appointment to be a career stepping-stone.
Gary,
Can you explain in more detail why you think staggered six year terms would significantly alter the frequency with which lower court decisions were overridden? Also, could you explain what you mean by the phrase “appellate law”? I’m not familiar with that term.
I don’t think your analysis is correct given the wide breadth of the SC’s jurisdiction and given how few cases the SC can actually process in any one year. If nothing else, I’d like to see you flesh out your analysis for the “two orders of magnitude” estimate since that appears to be completely unsupportable. In general, I try to shy away from using completely fictional numbers in order to buttress otherwise unsupportable contentions.
The words of The Constitution may mean many things, but one of them is not “gay sex is a constitutional right.”
What does the word, “liberty” mean to you? is it just an inkblot on the Cosntitution? When the drafters of the 14th Amendment said that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” was that just a bunch of meanignless buzzwords?
You mean to tell me that it was not the original intent of the drafters of the Constitution to implement the 2008 Republican Party platform?
“The short response to Kerr, though, is that Balkin’s theory isn’t that “any change is ok.” Kerr’s jab does, however, illustrate a different problem with the “living constitutionalism” theory – specifically, its “brand” problems.”
It depends on what you mean by brand problem. The problem is that it attacks the very reason why you bother having a written Constitution. Balkin’s theory isn’t “any change is ok” of course. But to most non-lawyers it appears that the Court plays by Calvinball rules where the reason “any change” isn’t ok is because living constitutionalists get to make up what they want and shove it down our throats.
It isn’t a brand problem. It is that judges don’t want to enforce parts of the constitution that they don’t like. And they want to use their power to enforce their will in areas where the Constitution doesn’t speak. (You’ll note I studiously avoided saying this problem is limited to one side or the other). They make themselves more powerful at the expense of the more accountable political branches.
But living constitutionalism never explains why we should let them do that. If it boils down to the Constitution meaning whatever judges say (which is what you wrote in the last post) why bother with a Constitution at all? Just let the accountable branches make decisions, get rid of the Constitution entirely, and say goodbye to judicial review.
If you can’t find a good argument against that other than “I like parts of the Constitution, I just don’t want to enforce the other parts”, you have a problem.
Sebastian:
But to most non-lawyers it appears that the Court plays by Calvinball rules where the reason “any change” isn’t ok is because living constitutionalists get to make up what they want and shove it down our throats.
The problem, as publius points out, is that the so-called originalists don’t really do anything different — they just justify it differently. They still put their policy preferences ahead of the text, and engage in all sorts of legalistic gymnastics to “justify” it. That is, they have better window dressing.
To see why true originalism is a Very Bad Idea, one need look no further than Brown vs. Board of Education, which simply cannot be justified on originalist grounds. Not no way, not no how. If your constitutional theory can’t support that ruling, then in my estimation, it’s a lousy way to run a country, no matter how high on the hog it might ostensibly be from a purely academic perspective.
“I think Gary’s fear is overstated.”
That certainly may be true.
“A system that has lots of relatively small adjustments can work better than one that follows strict rules with occasional random and dramatic shifts.”
I don’t disagree, but our system of SCOTUS weaving back and forth on a number of issues — though certainly there are more quotidian cases than those that make for major changes in interpretation of law — has always drawn many complaints under our system of lifetime appointments.
I can see, as was mentioned by Bernard, going to something less than a lifetime appointment, be it 30 years, 20 years, 18 years, or maybe even 14-15 years, but I’m particularly doubtful about the benefits versus drawbacks of having terms of anything less, and thus providing the precise incentive the system was designed to avoid, in which Justices will be moving on very soon, and thus would be subject to precisely the same incentives Senators and Representatives have to make policy decisions on the basis of who will offer them their next multimillion dollar job when they retire from their current office.
This is, to be sure, opinion, and speculative, and not something I claim to be a matter of undeniable fact. But it is part of the basis of my concern.
“Also, could you explain what you mean by the phrase ‘appellate law’? I’m not familiar with that term.”
Most of the decisions that are binding interpretations for matters of law left ambiguous by SCOTUS are dealt with in appellate courts.
“I don’t think your analysis is correct given the wide breadth of the SC’s jurisdiction and given how few cases the SC can actually process in any one year.”
Obviously the number of cases is quite limited, and in fact the number of cases heard per year by SCOTUS has been dropping noticeably in recent years, down to averaging under 70-80/year, last I looked (and I’m not going to grab a more accurate number just now), but those that are decided are often, of course, highly significant ones, and many are necessary to resolve disputes between different circuits.
“If nothing else, I’d like to see you flesh out your analysis for the ‘two orders of magnitude’ estimate since that appears to be completely unsupportable.”
Yes, I just pulled it out of an orifice, and didn’t mean to suggest otherwise. Feel free to ignore the specific claim, by all means.
But to most non-lawyers it appears that the Court plays by Calvinball rules where the reason “any change” isn’t ok is because living constitutionalists get to make up what they want and shove it down our throats.
Seb, you’ve mentioned this before in the other thread and I meant to ask you: is this just your opinion, or do you have some empirical support for this belief? Also, assuming its not just your opinion, do you have any empirical evidence (such as polling or research studies) that indicates how strongly “most non-lawyers” feel about this issue? After all, the vast majority of people don’t actually care very much about most issues they do have opinions on, and interpretive methodologies for higher courts seem more esoteric than most political issues.
Finally, since “living constitutionalism” refers specifically to Balkin’s work, is it your contention that “most non-lawyers” have read Balkin and are able to articulate what “living constitutionalism” entails, or were you just using the phrase as a stand in for “judgifying that doesn’t read the plain meaning of the text”? It would be rather amusing if you succumbed to the same fault you ascribe to SC justices while criticizing them…
rea:
That 14A text clearly states that they can deprive people of life and liberty with due process of law, just not without it. 🙂
I can see, as was mentioned by Bernard, going to something less than a lifetime appointment, be it 30 years, 20 years, 18 years, or maybe even 14-15 years, but I’m particularly doubtful about the benefits versus drawbacks of having terms of anything less, and thus providing the precise incentive the system was designed to avoid, in which Justices will be moving on very soon, and thus would be subject to precisely the same incentives Senators and Representatives have to make policy decisions on the basis of who will offer them their next multimillion dollar job when they retire from their current office.
Gary,
Many thanks for clarifying. I can’t speak for OCSteve, but I have some ideas of my own that would mitigate such corrosive effects. I don’t think retiring congressmen are necessarily a good model for retiring SC justices. I suspect that SC justices will be a lot less susceptible to such corruption because they’d be worth a great deal more than the average congressman. That means they’d have a wealth of offers from which to choose and could afford to avoid choosing offers that would give any hint of impropriety. Far more than for retired congressmen, retiring SC justices would value the public perception of their own propriety: if nothing else, such a perception greatly increases their market value.
Why are they worth more? Partly because of selection effects: SC justices are all high caliber legal scholars whereas congressmen are…the kind of people that have managed to survive our political process. If you were running a company, would you want to hire Ted Stevens? It appears that criminality and corruption in congressmen are correlated with general incompetence.
Also, I suspect that most retiring SC justices would end up working as law professors. That sort of job would appeal to their vanity and give them the freedom to write their books. It would also be the kind of position that would have very little potential for suggesting impropriety. Law schools generally don’t bring cases to the courts.
I expect the second most popular source of offers would be large law firms and there seems to be very little risk of quid pro quo here. No matter which firms a judge decides against, there will always be others that haven’t brought litigation before him that want to hire him. Large law firms take on many clients and their interests are rarely bound permanently to any one client.
tgirsch — how about the “equal protection” bit?
“Finally, since “living constitutionalism” refers specifically to Balkin’s work”
No it doesn’t. His project is to try to rehabilitate the term from something that turned into a slur to something worth defending. The term predates Balkin, and in fact was used initially to slur textualists with the idea that they were defending a ‘dead’ document.
“Seb, you’ve mentioned this before in the other thread and I meant to ask you: is this just your opinion, or do you have some empirical support for this belief?”
Do you think Roe v. Wade spurring the Christian Right movement counts? (I know the modern progressive feel-good story is that the rise of the Christian Right was really all about protecting segregated private schools, but anyone paying the slightest bit of attention to politics can tell you the relative weight of that issue compared to Roe v. Wade.)
And hell, a huge number of defenders of Roe v. Wade essentially admit that it was Calvinball rules.
Furthermore, any common citizen with the slightest understanding of history or what the term ‘capital’ means in “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” or what ‘life’ means in “nor be deprived of life, liberty, or property, without due process of law” realizes that the Constitution doesn’t prohibit the death penalty. The only reason lawyers can take Marshall’s or Brennan’s opinion on the subject seriously is because they have completely lost sight of the Constitution in lawyerly games.
Orin Kerr wasn’t slyly slurring Balkin’s project. Living constitutionalism both in the specific form Balkin has created and in the more general sense of the project liberals have done with the Constitution really could be bent to torture–it could reflect the changing societal attitudes on the topic in such a way as to permit what we now provinically call torture.
Sebastian — Would you be open to the argument that some states fail to provide “due process” in capital cases to such an extent that they no longer meet a Constitutional standard?
Does it help to remember that this is a counter-majoritarian document? That’s why I have such a problem with the whole idea of treating it like another piece of legislation. Whatever the framers may have intended about various provisions, they certainly marketed the constitution — and remember it had to be ratified by popular vote — as a document containing rights reserved against the federal majority.
I don’t know how I feel about term limits. It would add a lot more politics to the court — at least now, you don’t really know when the justices and judges are going to die, so it’s hard to be completely calculating.
There is a problem with geriatric jurisprudence: when I was a law clerk one of the judges on the court was in the advanced stages of alzheimers and my co-clerks and I felt rather icky about needing his vote on a panel. But that’s not the problem here. Those activist conservative justices seem to have quite enough oxygen going to the brain (well, maybe with one exception…..)
“Would you be open to the argument that some states fail to provide “due process” in capital cases to such an extent that they no longer meet a Constitutional standard?”
In theory, sure. But that isn’t what Marshall says. He made up garbage about the 8th amendment, conveniently ignored the other amendments from the same time, and used a pretextual argument on trending (and calling it ‘pretextual’ is accurate based on how quickly he abandoned it when it became obvious that the trending went against him. As soon as the trending goes against him he just says that he has talked about this in the past and cites his old opinion’). His argument is still cited by all sorts of liberal anti-death penalty advocates (and even liberals right here who are less zealous either way on the topic) as if it should be treated as a serious legal argument.
It isn’t a serious legal argument. It is Calvinball. I don’t believe that all of the lawyers who want to treat it as serious are cynical manipulators of the law, but they are definitely too lost looking at a bug crawling across a tree to see the forest. The Consitution doesn’t belong just to lawyers.
“There is a problem with geriatric jurisprudence: when I was a law clerk one of the judges on the court was in the advanced stages of alzheimers and my co-clerks and I felt rather icky about needing his vote on a panel.”
I can’t help wondering if you are referring to an appellate court, or the Supremes, and if the latter, of course, as to whom you might be referring to.
Thanks, Sebastian. I’m personally against the death penalty for a lot of reasons, though as you say it is not demonstrably unconstitutional. (I don’t know enough about legal history to invoke Marshall or Brennan on the topic.)
I do agree with the principle you’ve stood up for in this thread: bad law is bad law, even when it generates results that one personally agrees with.
Constitutional text is indeterminate, and so Justices across the political spectrum have throughout history interpreted text in a manner consistent with their political and policy preferences.
This in a nutshell is the problem with critics of original intent and flows from too much attention given to postmoderist thoughts like deconstructionism. It’s one thing to point out there are ambiguities (maybe even intentional) in some parts of the Constitution. It’s quite another thing to claim the entire text has no inherent meaning. Especially when the whole project was to set down a text that controlled government. Sebastian’s right: you might as well throw out the Constitution.
Intellectual integrity demands that each side recognize there has been selective interperetation on “both sides” (if there really is any such thing; O’Connor does not seem to have been on any side unless it lent itself to tri-partite analysis). That is not the same thing as saying all originalists are really just arguing for their own political point of view. This argument smacks of the popluar liberal criticism of conservatism: hypocrisy. Just because some originalists hypocritically bend the Constitution to their will does not mean that originalism itself is hypocritical.
Then again, what I just said really means nothing because it has no inherent meaning.
Conservative narratives can’t be co-opted – they need to be completely transcended, particularly originalism. With the exception of communism, never before has such a silly theory attracted such intelligent followers.
You know, I just KNEW there had to be a way to connect conservatives with communism other than through McCarthy.
But really, unless you buy into the thought that all originalists are scheming hypocrites I cannot see how you can call a school of thought “silly” that says “read it like they meant it.” What, then, is the theory of “read it like you want it to read?”
The problem here is the focus of the debate is based on theories of interpretation, reading and meaning instead of on theories of organization and structure in government.
And originalism is far from Procrustean. It has an inherent consistancy (in theory if not in practice).
If you want to make Consittutionalism more “democratic,” encourage the use of the process to amend the Constitution.
ed. You mean like Bush v. Gore? No, they were just interpreting there).
Not to bring Jes’ favorite topic back to the fore :), but this points out my comments re hypocrisy. Scalia, Thomas and Rhenquist relied on Article II and the U.S.C. in the concurrence although they acknowledged the due process/e.p. argument. The Article II argument is entirely consistent with originalism, IMHO.
Do you think Roe v. Wade spurring the Christian Right movement counts? (I know the modern progressive feel-good story is that the rise of the Christian Right was really all about protecting segregated private schools, but anyone paying the slightest bit of attention to politics can tell you the relative weight of that issue compared to Roe v. Wade.)
Seb, I asked if you had empirical evidence supporting the belief that a “majority of non-lawyers” in the US believe that the SC plays by calvinball rules due to their adherence to living constitutionalism. I don’t think your opinion that Roe v Wade spurred the Christian Right movement counts.
First of all, you’d have to actually make the case that Roe v Wade spurred the Christian Right movement. Secondly, you’d have to demonstrate that the majority of non-lawyers in the US are part of the Christian Right. This seems like a high burden to clear.
Look, if you want to make sweeping statements about what the public believes, it would really help your case if you cited some actual polls or research. In the absence of evidence, you’re more than welcome to repeat the notion that your opinions are obviously true and are universally shared, but that’s not very persuasive.
Frankly, given that most Americans don’t know anything about the Bill of Rights, I find the notion that most non-lawyers have very strong opinions about different theories of constitutional interpretation to be more than a little daft.
bc,
Would you mind giving an originalist justification for the existence of the US Air Force? Last time I checked it was neither an Army nor a Navy and would thus not fall under the grants in Article 1 Section 8.
Also, I’d be interested in seeing your originalist justification for Brown v Board of Ed.
bc: I cannot see how you can call a school of thought “silly” that says “read it like they meant it.”
For me, it’s because “originalists” have a large Venn Diagram overlap with the NRA-wingers who argue the clear intent of the Framers as they drafted the Second Amendment with reference to the militia in the Constitution should be ignored in favor of the modern interpretation favored by gun manufacturers, and that despite the clear literal meaning of the phrase “well-regulated militia” in the Second Amendment, those words specifically should be disregarded as if they did not exist.
Given that large overlap, it’s hard not to see “originalists” as a bit silly.
I respect a lot of publius’s legal thinking, but I find his end point profusely silly. It’s like saying we don’t need theories of statutory interpretation, just a theory of environmental law, a theory of tax law, a theory of labor law.
And to some degree, he’s right. We do need (and have) specialized jurisprudence in first amendment law, in fourth amendment law, etc. Publius knows this, of course: he’s a law professor. But that doesn’t mean we need even some Schumpeter-styled implied legitimacy to the process as a whole. Now, perhaps this is something better not taught in Con Law (and its certainly not something that *is* taught in Con Law, at least for most ConLaw profs). But it doesn’t mean that an overall definition of what the Constitution is, and how that impacts its relationships with statutes, courts, executive decisions, and what not, isn’t necessary. Nor is the idea that constitutional rights need to have some sort of basis (even if that basis is Dworkian at the end of the day), in order to give credibility to legal determinations. Say what you’d like about originalism, but one thing it certainly *is* is legitimacy-bearing.
Now, one could make the argument that the Constitution was simply a starting point for an American common law that happens to trump statutory, state, and local law. But that’s still not necessarily a “disaggregation” theory, as the common law, much like constitutional law, tends to move in sequences across subject matters as well.
The nice thing about American law is that there is a certain consistency to it. Get down the basics solidly enough, and you can figure out a legal question in a subject or on a statute you’ve never seen before. That’s true at the Constitutional level just as much as the statutory level, and I think that will remain so, and for good reason.
“It isn’t a serious legal argument. It is Calvinball.”
I should clarify this statement. Marshall’s opinion in Furman IS a serious legal argument that is ALSO Calvinball. The problem with living constitutionalism is that serious legal argument can also be Calvinball.
The whole point of having a Constitution is to not be playing Calvinball, so the fact that what is seen as serious legal argument lets Supreme Court judges play Calvinball and that serious legal scholars defend the Calvinball playing is a serious attack on the whole project of having a Constitution.
Publius seems to be saying that everyone plays Calvinball therefore textualism is wrong.
The problem with that argument (if you still want to have a Constitution) is that if it really were true that legal decisions are just Calvinball that is an argument against having a Constitution not an argument for having non-textualist judicial review. If it is all Calvinball, there really isn’t any need to have judges make these decisions.
If you want to have the ‘conservative judges aren’t always textualist’ argument I’m happy to oblige. Lack of perfection in its adherents isn’t an argument against textualism. Human beings aren’t perfect. But that doesn’t mean we should abandon the task of trying to be good.
“I can’t help wondering if you are referring to an appellate court, or the Supremes, and if the latter, of course, as to whom you might be referring to.”
Appellate, not Supreme. And to tell you the truth, we worked hard to ensure that we were not in a two-judge majority with only that most-senior judge, and I think we succeeded in every case.
His argument is still cited by all sorts of liberal anti-death penalty advocates (and even liberals right here who are less zealous either way on the topic) as if it should be treated as a serious legal argument.
Well, yes. I don’t see why trends and changing mores are irrelevant to a discussion as to whether something is “unusual” or not.
Nor do I see why the fact that the Constitution clearly allowed capital punishment at the time it was written means it might not also have allowed for the possibility that values would change over time, rendering what was permissible in 1789 unacceptable many years later.
JFTR, I am not an absolute opponent of the death penalty, though I think it should be very rarely imposed, and only then with procedural safeguards vastly stronger than those in use in the US today.
Turbulence, “I find the notion that most non-lawyers have very strong opinions about different theories of constitutional interpretation to be more than a little daft.”
Of course you do, you are setting up a tautology that essentially reads “Non-specialists don’t really understand what specialists are talking about in their area of specialty”.
You are certainly right that the average citizen doesn’t have an opinion on the particulars of Balkin’s specific ideas about the project of defending living Constitutionalism.
But, despite what lawyers think, the Constitution doesn’t belong exclusively to them.
The average citizen can and does know that Constitutional theories which lead to self-evidently wrong conclusions like “the death penalty is forbidden by the Constitution” are wrong.
The average citizen understands perfectly well what the term ‘lawyerly’ means and how it applies to twisting words and bending the court to your will.
You don’t need specialized legal training to notice that it is ridiculous to conclude that the Constitution forbids the death penalty. All you need to notice that is very basic understanding of the English language, access to the short document of the Constitution, and a slight smattering of history.
People notice these things.
You seem to think that particular observation isn’t valid without a double-blind study. It is my *opinion* that your objection as stated thus far is pedantic instead of substantive. Other readers can decide for themselves.
Sebastian, I apologize that it’s most likely I won’t be able to engage in any kind of sustained set of exchanges about this for now, but I am quite curious as to how. exactly, you get from a premise I think we can all agree upon — that the death penalty was clearly endorsed in our Constitution as permissible under some circumstances — to the conclusion that therefore the Supreme Court could never, under any circumstances or reasoning, find circumstances or reasoning as to why, at a vastly later date, it was not always permissible, and therefore why it would be self-evident that circumstances or reasoning or a combination of the two could conceivably be reasonably held to find that said circumstances and evolution of law could never possibly be so expansive as to conceivably find the death penalty impermissible under all modern circumstances.
Mind, I in no way am claiming that such an interpretation that the death penalty might now be found impermissible in light of contemporary information and legal evolution is mandatory, or that it is even correct, or even that there may not be perfectly sound reasoning that I’d agree leads to your conclusion.
What I am saying, however, is that you seem to consider it self-evident that because something was held to be constitutionally acceptable in the 18th century, that therefore it must forever interpreted the same way, absent amendment.
That simply doesn’t seem remotely compatible with the entire concept of our judicial system, so although i recognize that, of course, the self-evidentness of your position is the heart of your position.
What I don’t get is the missing part in which we skip from the premise we agree upon to the premise that a different view of the death penalty in the 21st century is so obviously impermissible that no argument need even be put forward.
It seems a lot like an underpants gnome thing to me. Could you perhaps explain a bit as to how you get from A to C there, and what B might be?
As an analogy, once we had Plessy v. Ferguson, and segregated school systems were the Constitutional law of the land.
Brown v. Board of Ed reversed that. Was that an impermissible decision in your view, and if not, why not? If not, does it differ from a possible reversal on the permissibility of the death penalty?
Or do you feel that segregation should have continued until overturned by legislative acts, or yet another constitutional amendment specifically stating that Plessy was in error?
Or, like, what?
Thanks for any response, and apologies for any lack of clarity on my part; I’m rather sleep-deprived at the moment.
“Well, yes. I don’t see why trends and changing mores are irrelevant to a discussion as to whether something is “unusual” or not.”
You don’t use Marshall’s opinion to talk about ‘unusual’, or at least you shouldn’t. He writes, in Furman:
“An initial draft of the Bill of Rights prohibited “illegal” punishments, but a later draft referred to the infliction by James II of “illegal and cruel” punishments, and declared “cruel and unusual” punishments to be prohibited. [n12] The use of the word “unusual” in the final draft appears to be inadvertent.”
His opinion is cited as one of the best on the subject of whether the death penalty is Unconstitutionally Cruel. Which is certainly true, though whether or not ‘best’ in this case ought to be considered a compliment on an absolute scale is up for debate.
“JFTR, I am not an absolute opponent of the death penalty, though I think it should be very rarely imposed, and only then with procedural safeguards vastly stronger than those in use in the US today.”
For the record, I have become mostly convinced that as a policy matter the death penalty is a bad idea. But that is a completely different matter from saying that it is unconstitutional if enough other people disagree with me on the policy.
Judging correctness of an opinion by who holds it is a logical fallacy.
On the other hand, I’d invite bc to explain how we get from understanding to original intent to holding that original intent is sufficient to resolve all legal questions. Why is it we have an appellate system, again?
Seriously: what’s the point of it, from your point of view, bc and Sebastian? Why do we bother, since “original intent” is unambiguous and sufficient, and is all that is allowable?
It’s not clear to me me that everyone but me knows the answer to that question, though I am, to be sure, a very poor judge of that sort of thing.
“You don’t need specialized legal training to notice that it is ridiculous to conclude that the Constitution forbids the death penalty.
Fair enough. What, exactly, do we need?
You seem to feel it’s so obvious that it needs no explanation. Could you explain a bit, nonetheless, how you get to the assertion that it’s so “ridiculous” that’s it’s just self-evident?
“You seem to think that particular observation isn’t valid without a double-blind study. It is my *opinion* that your objection as stated thus far is pedantic instead of substantive. Other readers can decide for themselves.”
I’ll be happy to, once you put forth your reasoning. Until then, I go for the reasoning I understand, which seems to be the basis of our legal system, as I understand it.
I.e, we have judicial review and interpretation, which while I agree entirely with you cannot be freefloating and grounded in nothing, I don’t know how you get to the assumption that anything that isn’t simply a quote from the Constitution is invalid, or whatever it is exactly that you hold “textualism” to require, which I’m afraid I’m entirely unclear about.
Seb, I certainly don’t require a double blind study. I’m just looking for something, anything, that justifies your claims. Research papers by political scientists would work. Polls would work.
Honestly, I’m trying to help you here. I assume you’re trying to convince people, like me, that disagree with you. But you’re not going to succeed at that without evidence. If you consistently refuse to provide, or even so much as think about, how to empirically justify your claims, then can you really blame me for not accepting your claims?
But, despite what lawyers think, the Constitution doesn’t belong exclusively to them.
JTFR, I’m not a lawyer. I also have no idea what this statement even means. I mean, I suppose by that logic, building codes don’t belong exclusively to civil engineers, but, um, sorry, I got bored and stopped caring.
The average citizen can and does know that Constitutional theories which lead to self-evidently wrong conclusions like “the death penalty is forbidden by the Constitution” are wrong.
Cite?
Look, I’m not just asking for evidence because I’m a jerk. I ask because you’re making very strong claims that are not reflected in my experience at all. My parents are smart people with graduate degrees who read the newspaper everyday and know more about politics than most, but they don’t know any of the stuff you’re talking about. Ditto for my wife’s parents. In fact, its been my observation that many people around this country just don’t have this level of knowledge or any real interest in acquiring it.
Yes, many people are unhappy with decisions made by the Supreme Court just like they’re unhappy with decisions made by Congress or the President. But in my experience, they’re unhappy with outcomes rather than a particular interpretative methodology.
You don’t need specialized legal training to notice that it is ridiculous to conclude that the Constitution forbids the death penalty. All you need to notice that is very basic understanding of the English language, access to the short document of the Constitution, and a slight smattering of history.
Oh, I agree that you don’t need special legal training; after all, I’m not a lawyer and I’ve read some SC cases and read about some constitutional issues. But you do need some knowledge and you do need an interest the subject. I don’t pretend that I’m representative of the general population in that regard.
Seb, if most Americans don’t know what the Bill of Rights is (as demonstrated by the link in my previous comment), why do you think that most Americans will understand what the Constitution says and whether the Supreme Court’s interpretation is correct? I mean, if people read the Constitution, shouldn’t they then know what the Bill of Rights is?
Your theory that the average American knows a great deal about the Constitution strikes me as bizarre. I mean, most people don’t enjoy government and constitutional law, they don’t like looking at old documents written in archaic language. Very few of my friends think that’s a good way to spend a saturday as opposed to going hiking or watching a play or buying groceries. The media don’t give constitutional issues significant air time or column inches because…people don’t really care about that. Compare the amount of coverage given to Brittany Spears versus any of the last dozen SC judgments.
Gary,”As an analogy, once we had Plessy v. Ferguson, and segregated school systems were the Constitutional law of the land.
Brown v. Board of Ed reversed that. Was that an impermissible decision in your view, and if not, why not? If not, does it differ from a possible reversal on the permissibility of the death penalty?”
First, I think there is an excellent argument that P v. F undermined the text and original understanding of the Civil War amendments. It came at a time just after the abandonment of the Reconstruction project, and when resistance to the upswing of the anti-Reconstruction state laws was at an all time high.
Second, the textual contradictions aren’t nearly as strong as in the death penalty case so you are getting way too much work out of “were the Constitutional law of the land” when you compare the two.
The Constitution as ratified at the same time as the 8th amendment specifically outlines how to conduct capital trials. No matter how much ambiguity you think is in the 8th amendment, it isn’t infinitely elastic. Cruel can’t equal blue for instance. However far the ambiguity extends, it can’t go as far as the death penalty because the same document *explicitly* outlines a process for death penalty cases.
Third, and this related to the first, I think black/white race relations have been an enduring problem Constitutionally and in the history of the nation. A problem of unique magnitude and uniquely pernicious influence. I think it would be better to say that the Supreme Court took emergency action and assumed emergency powers in Brown v. Board to try to deal with that and admit that they may have exceeded their true ‘powers’ than it is to generalize it to allowing the Supreme Court to step in to every possible sphere of public life without mooring.
The analogy in that sense would be Executive Powers right after 9/11. Most people don’t have problems with Bush taking drastic action in the immediate days and maybe weeks after 9/11. It is generalizing that to routine practice outlining powers forevermore (after the crisis has passed or by acting as if the crisis is forever) that is a problem.
Nothing in US political hisory compares to the divisions on the racial issue. Treating how we were forced to respond to that (including for example going to War against people who disagreed) as the basis for any routine understanding of how government ought to work seems like a bad choice. For example, I feel very strongly on the abortion issue. As strongly as about anything I believe politically. But I wouldn’t think that starting a literal civil war over it would be a good idea.
As far as Moses, he was using lucifer to do his miracles and God probably wasn’t happy. So, he figured he was in hell.
Posted by: SCearlie | April 03, 2008 at 02:26 AM
Snarkiness will get you nowhere — or everywhere in the average discussion thread. But the illustration had a point that pivots around the feature in it that seems to have annoyed our colleague most: its shocking honesty about the issue at hand. The remark is of the all-too-familiar variety that holds such honesty up as a monopoly of modern times, when everyone is sophisticated in ways people before us never were because they were so damned superstitious. Correspondingly, all that precedes our age can go to the devil.
This is a common sort of dullness, and it helps account for the comment thread’s inability to grasp publius’s point, or rather work from it.
Originalism now and then answers to a set of practices that constrain adjudication in ways that lend the enterprise legitimacy. In the Talmudic case one needed to base rulings on actual biblical words, a proof text. This made it harder to innovate, but it kept the commentators honest in that it reduced them to commentators.
Occasionally they followed the model of living constitutionalism, as when they reduced “an eye for an eye” to monetary damages on the grounds – certainly a stretch – that no two eyes are exactly alike and so one could not be made whole if we were to take the biblical injunction literally. But even here they styled the ruling as an interpretation of the operative text.
At the time when the rabbis were getting started creating a moral code for the Judaism that would survive the second temple, the ruling class that drew its power from the temple– the Saducees – rejected the idea of an oral law; in short, they opposed the Pharisees as an institution. (In anticipation of more ignorance, I would point out that Jesus was closest to the Pharisees in thinking, often echoing their teachings and earning the title “rabbi.”)
In constitutional adjudication one is taught to bring it down to words as well. And in this and the earlier case it is in the nature of the enterprise to treat the words as words meant to bind us for all time, reducing the adjudicators to commentators.
The formulation does in fact constrain adjudication – again, in each case – it keeps it honest in a certain way. The originalist’s conjuring trick is to make more of the picture than it supports, supposing that, having settled on this picture, we can take it all the way by channeling the past and extracting a once-and-for-all meaning that decides every case that comes before us, eliminating the decisional, updating aspect of what we do.
As with “an eye for an eye,” many constitutional decisions show this to be taking the picture too far.
The point of the Moses midrash is that the ancients had a keener sense of the vagaries of such pictures than do contemporary experts. This point evidently was missed, for reasons stated.
But no one’s perfect.
Gary “You seem to feel it’s so obvious that it needs no explanation. Could you explain a bit, nonetheless, how you get to the assertion that it’s so “ridiculous” that’s it’s just self-evident?”
I know that you posted this before I posted my reply which answered this, but I’m going to set it here to make it easier to find:
By raising Plessy you are talking about something different. Plessy was an interpretation. The ‘capital’ in “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” is right there in the actual text of the Constitution. That is why I chose the death penalty cases instead of Roe v. Wade. The problem between the proposed judicial interpretation and the text is wholly in the document.
It is one of those kinds of wrongness that you can’t get until you have twisted yourself up with 200 years of lawyerism.
Seb,
As an example of empirical evidence, consider this summary of polling results regarding the public’s perceptions of the SC. I’d argue that it fails to support your contention: public opinion was quite high throughout the 90s and began declining significantly over the last 5 years (during which Roberts and Alito have joined the court).
Perhaps this summary is inaccurate or perhaps I’m failing to interpret it correctly. Nevertheless, this is an example of “evidence”, the kind that you should marshal if you wish to persuade people.
” The ‘capital’ in ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury’ is right there in the actual text of the Constitution.”
Sure. But the Constitution simply says that at the time, this was perfectly acceptable under many circumstances.
It doesn’t, that I’ve noticed, state anywhere that capital punishment is mandatory, or forever mandated. Neither have I noticed a clause forbidding the federal courts, or state courts, or anyone else, from placing limits on how or where or when capital punishment might be held to be impermissble.
Could you cite that bit of the Constitution for me, please?
If not, what grounding and text of the Constitution, exactly, do you hold mandates your interpretation, and your personal interpretation alone as the only possible correct interpretation?
Cite?
Thanks.
Sebastian,
OK, but Marshall aside, I still don’t get why it is impossible to argue that the Constitution allows for changing standards of punishment.
“Today we accept capital punishment, but we understand that opinions may change.”
Whatever else you say, I don’t think this is “self-evidently wrong.”
After all, one argument put forth by death penalty supporters is that it is widely popular. If capital punishment is not “cruel and unusual” in part because it enjoys wide support what happens when it no longer enjoys such support?
“I think it would be better to say that the Supreme Court took emergency action and assumed emergency powers in Brown v. Board to try to deal with that and admit that they may have exceeded their true ‘powers’ than it is to generalize it to allowing the Supreme Court to step in to every possible sphere of public life without mooring.”
I’d agree with this up to a point, but I also amn’t seeing how, if you assert this, you’ve not simply abandoned your stated principle, and now are merely haggling over when a matter is and isn’t an “emergency.”
Either the decision was legitimate, or it wasn’t: which do you pick?
And if you pick “legitimate,” on what principled ground do you declare Brown a clearly unique “emergency” with a bright line everyone can recognize?
I’m still where we started, in other words, trying to understand what your POV is, let alone why it’s the only possible legitimate approach to our Constitution, which incidentally happens to be in completely opposition to the overwhelming majority of our country’s history and philosophy of the role of the judiciary.
Other than that, you know, you believe that you’re correct, and that people with other views have views that cannot be legitimate, because that’s what you believe, because other views are incorrect and illegitimate.
Which is a tautology, needless to say.
Which clause of the Constitution do you cite as grounds for all this, exactly?
People mean 8 different things by “originalism” & “textualism” & “living constitution” to the point that some of this just becomes semantic arguments
Balkin is spot on about “original expected application” not being part of “original meaning” & not being binding. That is actually the point in dispute between him & Scalia, & as far as I’m concerned Balkin has that one right & Scalia has it wrong. His articles, if you read them in full, are great. But by calling himself both an “originalist” & a “living constitutionalist”–the whole thing bogs down in these semantic branding issues.
Basically, if you think original expected application is binding, it determines a ton of things. If you think it isn’t, & only original meaning is binding, it doesn’t do much at all to make the text more determinate & is actually pretty noncontroversial.
I call my preferred approach, which I think is also Balkin’s, “purposive textualism.”
It’s interesting, given the “originalism is the One True Way!” argument in the U.S., the extent to which it has no sway at all in constitutional courts in other countries. In part this is because more time has passed since ratification in the U.S. But in part it’s because Scalia, Bork et. al have sold a load of snake oil–snake oil that they sincerely believe is the Miracle Tonic for Interpreting the Constitution, but their theory rests on semantic confusion & game playing, nothing more. It is no more justified by the text, and is just as much a reflection of their political preferences, as Brennan’s “err on the side of protecting individual rights” theory.
turbulence: I’m not convinced Brown v. Board of Ed. had to be decided the way it was. What we’re talking about is what is “equal.”
I’m not an expert on the subject, but I understand that most anti-textualists point out that the same Congress that passed the 14th also allowed some segregation in D.C. Be that as it may, I think there is some historical evidence that that same Congress thought the races might WANT to live separate(e.g. sex separated bathrooms in public spaces) that is entirely different than forcing the races to be separate.
The 14th amendment mandages that the government treat the races with equal dignity and equal protection. The Reconstructionists never said (as far as I know) that ALL segregation would necessarily be Constitutional. So I don’t see an inherent textual or historical problem to denouncing segregation laws that plainly violated the 14th amendment.
To me, the question is simple: Did the Jim Crow laws violate equal protection? The answer is clearly yes.
BTW, I pretty sure Bork takes this view, adding that the passage of the 15th amendment two years later with its inherently integrationist provisions for sufferage, etc. reinforce that reading of the 14th.
Listen, my wife is from Justice Harlan’s lineage. I have a picture of Justice Harlan and an old Supreme Court reporter containing his dissent in Plessy. If you haven’t read it, it is a must read. I think the decision in Brown was cause for rejoicing morally if not from a legal analysis standpoint. Harlan points out that you don’t have to go beyond the 13th,14th and 15th amendments to get where you need to go.
Update: I just read it to my law clerk. It’s a moving piece. A short abridgment:
The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ and that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.’
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world . . .
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case . . .
We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,-our equals before the law. The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
“Honestly, I’m trying to help you here. I assume you’re trying to convince people, like me, that disagree with you. But you’re not going to succeed at that without evidence.”
“I suppose by that logic, building codes don’t belong exclusively to civil engineers, but, um, sorry, I got bored and stopped caring.”
You see Turbulence, I’m not really trying to convince *you*. I know I have no chance of convincing *you*. I’ve seen *you* in other discussions with other people. I’m trying to convince other people. So if you raise concerns that I think are problematic for other people I’m happy to deal with them. Since at the moment your concern appears to be that you need a cite for the proposition that common people care about the Constitution, I don’t feel the need to research it.
I think that people who are likely to be persuadable on this topic aren’t likely to be troubled by the proposition that common people might be troubled by random-seeming Constitutional pronouncements from the Supreme Court. As a rather large and noticeable political movement gathered large amounts of influence on the back of the issue, people that *in my opinion* are persuadable probably don’t need lots of evidence on the point. Or at least people that I’m going to spend time trying to persuade.
You may truly believe that Roe v. Wade didn’t do much to change a lot of people who were voting for Democrats into people who were voting for Republicans. You may profess to believe that it was about other things. I don’t think it is worth engaging on that issue. Frankly, if it weren’t for the fact that Republicans are so awful right now, I’d be happy to let you believe something so wrong because it would make Republican wins much more likely.
I’m not trying to sound mean, but I can’t possibly persuade people on every possible point of contention.
If you don’t believe that the interpretation of the Constitution is an important political topic to enough voters, I’m not inclined to debate that topic with you. I belive you are wrong, but suspect that our experiences and our view of evidence is different enough that it would be a waste of both our times to try to hash it out.
Also, just as “originalism” claims to be in favor of the “original meaning” being binding but is actually primarily about “original expected application” being binding–“textualism” is actually about a literal reading of the text being binding as opposed to a purposive reading of the text.
I also think that originalism actually carries a lot less sway with the public at large than you’d think. Some individual Supreme Court decisions are unpopular, of course, & people call those “judicial activism” & they call the ones they like “upholding the Constitution,” “upholding the rule of law” & “protecting individual rights,” etc.
Originalism has more success as a form of indoctrinating the next generation of conservative lawyers & judges than anything else.
Also, on the death penalty, Gary: Sebastian treats the 9th amendments’ prohibition on construing the enumeration of certain rights to deny other rights to the people as dead letter.
“Since at the moment your concern appears to be that you need a cite for the proposition that common people care about the Constitution, I don’t feel the need to research it.”
I’d like a cite to whatever it is you’re precisely asserting in this regard, as well, if you’d like me to understand what you’re saying.
“I think that people who are likely to be persuadable on this topic aren’t likely to be troubled by the proposition that common people might be troubled by random-seeming Constitutional pronouncements from the Supreme Court.”
I certainly agree that there are many “common” people troubled by some Constitutional decisions.
And?
What does popular opinion have to do with rights we hold to be self-evident, and the interpretation of how those rights, and the text of the Constitution should be interpreted, exactly?
Do you have a cite to a clause of the Constitution that clearly states that popular opinion is relevant to interpreting the Constitution, Sebastian?
I assume you must, or I can’t make any sense at all as how your position, which seems to be that if it isn’t explicit in the Constitution, it’s not part of the Constitution, is self-consistent.
Can you help me out here, please?
Thanks.
I think that people who are likely to be persuadable on this topic aren’t likely to be troubled by the proposition that common people might be troubled by random-seeming Constitutional pronouncements from the Supreme Court.
That makes perfect sense except for the part where you assume that many people in the US know almost anything about the constitution and pay close attention to SC behavior and scrutinize SC decisions.
As a rather large and noticeable political movement gathered large amounts of influence on the back of the issue, people that *in my opinion* are persuadable probably don’t need lots of evidence on the point. Or at least people that I’m going to spend time trying to persuade.
I think you don’t understand that most people in the US < a href="http://www.americanprogress.org/issues/2007/04/opinion_abortion.html ">do not want Roe v Wade repealed.
I suspect the Christian Right would have been animated at the thought of a prenatal-holocaust no matter how sound the legal reasoning that justified that holocaust was. Don’t you agree? I honestly don’t understand the contention that the Christian Right was primarily motivated by the methodology and not the outcome of Roe v Wade, to the extent that I buy your theory that R v W was important in that regard. In other words, just because the Christian Right was motivated by R v W, it does not follow that the methodology of the decision, rather than the outcome, was the motivating factor.
Since at the moment your concern appears to be that you need a cite for the proposition that common people care about the Constitution, I don’t feel the need to research it.
I never claimed that “common” people don’t care about the constitution. What I claimed was that most people in the US don’t know much about the constitution and debates about interpretative methodology and that to the extent that most people care about SC rulings, their focus is on outcomes, not methodology.
So yeah, I think people do care about the constitution. I don’t most people care enough to learn anything more about it than they learned in high school. And I don’t think they care enough on average to do anything.
You may truly believe that Roe v. Wade didn’t do much to change a lot of people who were voting for Democrats into people who were voting for Republicans.
I never said that. What I did say is that I’d like to see you make this case on the merits.
Seb, the fact that you feel compelled to repeatedly distort my arguments does not speak well about your case. Good arguments don’t usually require a lot of lies to justify them.
Well how do you go about junking ALL the narratives?
And I was disappointed that the question of whether the Yoo Memo’s would fit under it wasn’t answered. Obviously random change isn’t okay, but I would have liked to hear the arguments for it.
I don’t really have time to delve into Constitutional interpretation but this…
Gary: Judging correctness of an opinion by who holds it is a logical fallacy.
…is true, but in a misleading way. To wit: it is certainly true that a person who is otherwise wrong might be correct on a particular matter. [viz. stopped clocks, etc.] If someone is, however, repeatedly wrong on a number of issues — or, shall we say, is morally suspect in other ways — then yes, it’s a) not unreasonable to discount their opinion on related matters, nor b) automatically look with disfavor on any other positions they may espouse. Call it Bayesian reasoning if you want a sophisticated gloss on it; regardless of nomenclature, though, it’s unwise to dismiss this kind of argument so quickly.
Re: the Air Force and original intent.
Have to think on that one. I know the Air Force was originally part of the Army (army air corps?). There was certainly nothing wrong with that (the Constitution does not freeze weapons at the musket-cannon-warship level and thus the Navy and Army flying planes poses no Constitutional question).
I think the bigger question would be whether the Air Force is limited to the two-year appropriation limit in Article I section 8 clause 12 or the no-limitation for the Navy in clause 13?
As a truly stand alone entity, one could argue that we need another clause. Off the top of my head, however, I see no reason why if you couldn’t include it as a sub-part of the army that Congress couldn’t segregate it off as an “independent sub-part” for administration purposes.
But fine. Let’s amend and see how many people oppose. I don’t really see this as an argument against textualism and original intent.
“Seb, the fact that you feel compelled to repeatedly distort my arguments does not speak well about your case.”
Turbulence, while I’ve been in more or less complete agreement with everything you’ve said on this thread (and I generally observe that, in fact, I usually agree with you a quite high percentage of the time, overall, save on occasion), I have to say that I don’t believe at all that Sebastian is intentionally distorting anyone’s opinions.
I’m very strongly of the impression that, instead, some of us simply don’t understand the assumptions some others take so for granted that they find it completely unnecessary to state those assumptions.
I’ve never been able to grasp what Seb’s overall consistent legal philosophy is, and so far, this thread hasn’t helped me much, other than to consider that Katherine’s comment as regards the 9th Amendment might have some merit (though I strongly suspect Sebastian will say that it is an entirely incorrect suggestion).
But I remain a blissful optimist. I’m hopeful that either Seb will give cites to the various clauses in the Constitution which he regards as clearly stating and supporting his understanding, or that he’ll explain more clearly how it might be that the only way to interpret the Constitution is via literal quotes, although there seem to be no literal quotes from the Constitution that support such an argument.
But I’m hopeful that it’s merely a matter of Sebastian not having yet had enough time to explain his reasoning, and where it’s grounded in the obvious and self-evident text of the Constitution.
Thus I’ve asked some questions hoping to elicit those cites, or, failing that, some clarification as regards Sebastian’s precise reasoning as to why cites of Constitutional text are are unnecessary to support the claim that cites of Constitutional text are always necessary.
Anyone else, feel free to jump in to explain how this works. BC?
I’m entirely willing to believe I’m just unfamiliar with some of these arguments, and perhaps I’ll agree once I see them finally stated, and not just taken for granted as unnnecessary to state, because, after all, it’s the only possible way to correctly understand the Constitution.
But right now I have to lie down. I’m dizzy.
Probably my blood pressure meds, and going on and off them and such, at present, perhaps.
I would suggest that “living constitution” would sound less defensive if its proponents would refer to the alternative as the “dead constitution.”
“There was certainly nothing wrong with that (the Constitution does not freeze weapons at the musket-cannon-warship level and thus the Navy and Army flying planes poses no Constitutional question).”
What does and doesn’t the Constitution freeze, then, and how do we determine the answer to that question?
This seems to me to be the entire question. So I’d love to know what you believe the answer to be.
Gary:
I think the key difference is that Sebastian thinks that the founding generations’ expectations about how constitional terms would be applied in practice is binding on future generation, & I think it is emphatically not. So, on this view: the references to capital punishment in the constitution indicate that the founders believed that capital punishment would exist, indicating that they did not think that it was unconstitutional.
He thinks that the original expected application is generally applicable except in ill-defined & poorly-defended “emergencies”–which is, as far as I can tell, simply a way to evade the charge that he favors legal segregation & a bunch of other outcomes that everyone here agrees are morally indefensible. (If the “emergency powers” claim is right, then I think that implies a belief that the text of Equal Protection clause allows bans on interracial marriage, but I don’t know if Sebastian actually thinks this or not; it’s an extremely embarrassing question for people who say that originalism is the One True Way to interpret the constitution.)
He thinks that it’s especially absurd to argue that the original expected application isn’t binding when you can determine it through the text of the Constitution itself rather than through more dubious means. That’s why Furman seems especially egregious. I think.
Obviously, take my attempts to characterize an argument I disagree with with a grain of salt, but I’m not trying to set up a straw man.
Sebastian, what is your position on
Brown v. Board of Education, Bolling v. Sharpe, & & Loving v. Virginia? Are they correct or incorrect interpretations of the constitutional text?
If they are incorrect, but justified on moral emergency grounds, why is the Supreme Court justified on deciding based on the moral effects & results instead of the text in these decisions and no others?
If they are correct, then why do you need this “emergency” mumbo jumbo to justify them?
farmgirl:
Nobody can seriously argue that it was the original intent of the drafters or adopters of the 14th amendment that the government should mandate racial integration. IANAL, but under a plain reading, the best you could do with the equal protection bit is enforce the “equal” part of “separate but equal.” You can’t abolish the “separate” part under a strict originalist reading.
Jes, I find your argument with respect to the NRA somewhat self-referencial; It seems to boil down to nothing more than, “I disagree with the NRA, therefore the NRA is wrong.”
Re: Brown, I threw a bit of a powder keg out there, didn’t I? Although I’m pretty sure I stole that particular keg from publius, who I’m nearly positive brought it up back in the LF days. Sorry to steal your thunder, dude.
Have to think on that one. I know the Air Force was originally part of the Army (army air corps?). There was certainly nothing wrong with that (the Constitution does not freeze weapons at the musket-cannon-warship level and thus the Navy and Army flying planes poses no Constitutional question).
Um, I’m not so sure about that. Regarding the organizational aspect, I don’t think the Constitution magically grants Congress the ability to create unconstitutional organizations provided it nurtures them under the auspices of the US Army for a few years.
Moreover, I think flying planes and launching nuclear weapons does pose constitutional questions: we’re talking about giving the federal government far more military power than the state governments or the people. I don’t think we can just brush such questions aside under an originalist reading. To the extent that Seb has convinced me that the 2nd amendment is an individual right, it seems absurd to assume that the constitution entitles the federal government to amass such vast military power while denying that right to the states and people. I mean, if the constitution carefully balances the power shared by different groups, then completely overturning the balance of power seems like it would be rather important from a constitutional perspective.
As a truly stand alone entity, one could argue that we need another clause. Off the top of my head, however, I see no reason why if you couldn’t include it as a sub-part of the army that Congress couldn’t segregate it off as an “independent sub-part” for administration purposes.
This seems like a very dangerous line of interpretation. As I understand it, you’re saying that the Army is constitutional, so any government entity that is similar enough to the Army that it can be nurtured organizationally within the Army must also be constitutionally acceptable. What are the limits of that argument? If the government decided that the Drug War was killing many Americans, could it create a special federal police force empowered to violate the Bill of Rights under the Army’s direction using this orginalist argument? What about the War on Cancer or the War on Poverty? Could the government take medical research without due process or induct biochemists into the army to help fight the Cancer Nemesis? After all, Cancer kills more Americans than any recent military threat…
I’m not trying to convince you that the Air Force cannot exist according to an originalist reading per se. What I am trying to do is to illustrate that using the plain meaning of the text doesn’t necessarily make things any simpler; it opens up new questions. If you and I can disagree about what the constitutional issues are surrounding such a simple question under an originalist reading, what interpretative landmines might lurk in areas of real controversy?
But fine. Let’s amend and see how many people oppose. I don’t really see this as an argument against textualism and original intent.
[Turbulence raises hand and waves it wildly in the air]
I would oppose. For the reasons discussed above. And because Robert Farley said so.
Katherine,
If Plessy is correct *interpretation* Brown isn’t. I tend to think that Plessy wasn’t correct. I also tend to think that the “privileges and immunities” shouldn’t be dead letter and that it might be an appropriate vehicle for certain societal changes (though it obviously isn’t applicable to the again super obvious death penalty cases). But that is a long discussion all over the place that I’d love to have at a later date.
“If they are incorrect, but justified on moral emergency grounds, why is the Supreme Court justified on deciding based on the moral effects & results instead of the text in these decisions and no others?”
Because there isn’t any other issue likely to come before the Court or that has come to the Court that comes anywhere near the “race in the US” issue.
It is like the ticking bomb scenario and torture. Even if you believe/justify torture in a real live ticking bomb scenario, that is no excuse to create a regularized system of torture. Yes, emergencies put you in to some crazy decision-making situations. Yes they convince people to do things that they wouldn’t normally do, and things that they may even argue that they shouldn’t really do.
None of the issues before the Court since Brown have been of that magnitude.
If you want me to ratify a once every 75 years emergency panic button, I’ll do that well before the routine torture of the idea of a Constitution that comes with the free-form interpretation of a liberal superstar like Marshall or Brennan.
free-form interpretation of a liberal superstar like Marshall or Brennan
an interesting comparison can be done on the Brennan/Marshall view of affirmative action for african americans and their view on laws that advantaged women over men (e.g., IIRC they struck down a law that allowed women to start drinking alcohol earlier than men). The former were permissible but the latter weren’t. I couldn’t ever figure out the difference.
Gary
I don’t understand how you think your second paragraph contributes to a ruling that the death penalty is *unconstitutional*.
I’m not arguing that the death penalty is mandated by the Constitution for any particular crime so I won’t be providing a cite to that proposition.
I’m not arguing that legislatures or courts are constitutionally forbidden from putting limits on the practice of the death penalty so I won’t be providing a cite to that proposition.
I’m arguing that the position that the legislatures MUST outlaw the death penalty because the Constitution FORBIDS the death penalty is wrong. I argue that Marshall (who is generally held up as a liberal jurisprudential hero and whose opinion on the death penalty is specifically held up as being a good model of the argument that the death penalty is unconstitutional) provides a good example in Furman of what judges ought not be doing. And furthermore it is an example of what liberals seem (from my perspective) to want judges to be doing.
You are asking me all sorts of questions about why I can’t cite mandatory death penalty clauses in the Constitution that don’t have anything to do with my argument. If the legislature wanted to get rid of the death penalty, I certainly think it can do so. I’m arguing against the proposition (and yes I think it is self-evidently wrong) that the Constitution MANDATES that the death penalty can never be implemented.
“None of the issues before the Court since Brown have been of that magnitude.”
Could you perhaps offer a phrasing of this that can be used as an objective rule/guideline, that couldn’t be fairly characterized by someone else as you expressing a purely subjective opinion that’s purely outcome-derived, Sebastian?
That would help a lot.
I’m assuming you believe that there are objectively derivable tests for what does and does not constitute a sufficient “emergency,” beyond your personal preferences.
Could you give a cite to such a test, and source it in a specific clause of the Constitution?
Thanks muchly.
Oh, and if you can’t, could you perhaps please explain why you can’t, and how it might be that your preferences should be given legal power, rather than someone else’s outcome-based preferences, such as, say, William Brennan, just to pick a random alternative?
Thanks even more. That would pretty much put paid to any relevant question, I think.
Looking forward to clearing all this up with your next answer! Thanks so much!
(Note: not sarcastic thanks. Really. No, really.)
And I already provided the cite to the proposition that the Constitution EXPLICITLY ALLOWS for the death penalty. But for clarity it is:
Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
Here the Constitution, in an amendment ratified at the same time as the 8th–therfore not superceeded by it–PERMITS the death penalty. That creates a constraint on interpretation–even if you think it is deeply ambiguous, the document makes clear that whatever the meaning, it doesn’t extend to making the death penalty unconstitutional. There are other constraints, but this is a constraint.
I have further trouble with the Marshall-style opinion on changing standards even in the areas I do believe are allowable. Even if you accept that changing standards have a place in some areas (but certainly not all), that argument doesn’t let the Court be the vanguard for change. In *those* areas (as opposed to the countermajoritarian non-changing-standards areas of the document) you can’t lean on the changing standards of the society until after the standards of the society have actually changed. The Court can never be in the early part of those changes, because if they are relying on the changing societal mores to butress their decision, they societal mores must have actually already changed.
“I don’t understand how you think your second paragraph contributes to a ruling that the death penalty is *unconstitutional*.”
I don’t think it does, and I’ve never suggested that it does.
I repeat, rephrasing, that a query as to where, precisely, the Constitution forbids something — such as a federal court holding that limitations might be placed on the use of the death penalty — is not at all an argument that any limitation must be constitutional.
My understanding is that that which is not clearly forbidden by our Constitution is permitted.
If that’s so, I’m asking for a cite as to were you find a clause in the Constitition that forbids limiting the death penalty.
Alternatively, if you are suggesting that courts should simply assume that there is such a passage, I’d ask how that’s consistent with your assertion that the courts can only find that which is literally citable in the original text.
“I’m arguing that the position that the legislatures MUST outlaw the death penalty because the Constitution FORBIDS the death penalty is wrong.”
That’s quite interesting. Could you cite that precise text, please?
Let me repeat, for clarity, once more, than a mention that something is allowed is not, in any way, in English, a statement that something cannot be forbidden or limited in some way, be it in part or whole.
That’s not how English works. I’m not aware of an English or American common law, or written law, says otherwise, either.
So I assume you have a cite to where the Constitution says specifically otherwise.
Looking forward to reading and considering that!
Thanks muchly!
” I’m arguing against the proposition (and yes I think it is self-evidently wrong) that the Constitution MANDATES that the death penalty can never be implemented.”
In fact, so far, you seem to be clearly asserting that the Constitution MANDATES that the death penalty can always be implemented, unless a legislature says otherwise, or the Constitution was originally interpreted otherwise.
But that’s not in my copy of the Constitution. Where do you find it in yours, please?
Thanks again for your patience.
“Could you give a cite to such a test, and source it in a specific clause of the Constitution?”
Nope I can’t. It is an extra-Constitutional emergency based on the history of US race relations.
“Oh, and if you can’t, could you perhaps please explain why you can’t, and how it might be that your preferences should be given legal power, rather than someone else’s outcome-based preferences, such as, say, William Brennan, just to pick a random alternative?”
Sure. When you claim emergencies are happening 4-6 times a year for more than 20 years (he was more circumspect in the first 14 or so), they aren’t emergencies, they are part of how you regularly conduct yourself.
So while a super-strict version of myself wouldn’t even allow for super-important earth-shattering emergencies, that doesn’t stop me from noticing that however hard they are to define precisely, that doesn’t stop me from noticing that routine doesn’t equal emergency.
When Bush has dozens of people tortured each year, you can be pretty sure that they aren’t all emergencies.
Essentially you want to know exactly how many grains of sand there have to be before there is a heap. My inability to do so doesn’t make the term ‘heap’ ineffective.
“Here the Constitution, in an amendment ratified at the same time as the 8th–therfore not superceeded by it–PERMITS the death penalty. ”
Sure. So what?
Where does it forbid courts from placing subsequent limitations on that permission, specifically, as you seem to otherwise assert is absolutely forbidden for a federal district, appellate, or the Supreme Court to do? (Absent, perhaps, you allowing that it’s a sufficient “emergency,” which is certainly not you expressing any kind of subjective outcome-based preference, since that would be entirely, you know, wrong.)
Thanks yet again for your great patience in unraveling this conundrum for me, which perhaps is a complete mystery only to me.
“Essentially you want to know exactly how many grains of sand there have to be before there is a heap. My inability to do so doesn’t make the term ‘heap’ ineffective.”
Certainly not, but I was under the impression that you were proposing that there is an objective — which is also known as a non-subjective — test available.
Are you now saying that there is no such objective test?
the best you could do with the equal protection bit is enforce the “equal” part of “separate but equal.” You can’t abolish the “separate” part under a strict originalist reading.
Of course you can. In the case of schools it is entirely plausible that “separate but equal” is impossible on both practical and logical grounds. It was certainly not possible in the segregated South. You don’t even need to rely on psychological ideas, just facts.
The level of oversight that would have been needed to come anywhere near assuring equality in segregated schools would have been unreasonable. Think of the issues. Funding, transportation, specialized and advanced classes, extracurricular programs, physical facilities, and so on. Assuring that these were dealt with so as to produce something close to equality between black and white schools, especially in a society actively hostile to blacks, would have been nearly impossible. Equality required integration.
Gary, your question isn’t clear.
Have I suggested that the death penalty cannot be limited in any way? That it is unlimited?
You seem to have totalized my position and I have no idea why.
A legislature can ban it becuase it is not MANDATED by the Constitution.
A court, operating in its proper authority, could act to make sure that legislative procdures comport with the Constitution (see for example juries).
A court cannot, operating in its proper authority, ban the death penalty as unconstitutional because the Constitution EXPLICITLY PERMITS the death penalty.
A court cannot seize ambiguity in some other clause, whether imagined or real, to ban the death penalty because the Constitution EXPLICITLY PERMITS the death penalty.
“In fact, so far, you seem to be clearly asserting that the Constitution MANDATES that the death penalty can always be implemented, unless a legislature says otherwise, or the Constitution was originally interpreted otherwise.”
I honestly have no idea what you are trying to say here. I understand all the individual words but strung together they make no sense. If you have the impression that I beleive that until a legislature says otherwise the Constitution automatically mandated the death penalty for all crimes, I am baffled. Can you please quote the section that gave you that impression.
Did anyone else have that impression?
“Where does it forbid courts from placing subsequent limitations on that permission, specifically, as you seem to otherwise assert is absolutely forbidden for a federal district, appellate, or the Supreme Court to do? ”
Are you failing to distinguish between ‘some’ limitations and a complete ban?
Would you argue that jurisprudence limiting the 1st amendment in cases of screaming “fire” in a crowded theater therefore extends to the courts the power to completely ban free speech?
“Have I suggested that the death penalty cannot be limited in any way? That it is unlimited?”
It was my impression that your position is that courts can’t limit use of the death penalty without finding specific textual citations in the Constitution that allow any such limitation.
“A court cannot, operating in its proper authority, ban the death penalty as unconstitutional because the Constitution EXPLICITLY PERMITS the death penalty.”
Again, how does an explicit permission lead to any conclusion that limitation is impermissible?
If limitations by courts are otherwise permissible, what is your whole argument?
“You seem to have totalized my position”
I’m not in the least trying to do so. If you can point to which specific clause of the Constitution offers us all an objective test as to what courts are and aren’t forbidden to limit, we’d all have an alternative that doesn’t involved asking Sebastian to rule on it for us.
Non-objective tests that, say, emergencies allow for exceptional rulings, but we have to check with Sebastian to see if it’s sufficiently emergent that we can’t let a legislature rule would seem to be of limited usefulness.
Though if you charge for your rulings, it could work out well for you, to be sure.
If you aren’t offering an objective test, as a substitute for the impermissible subjective tests you seem to assert have been historically and wrongly used, what useful Constitutional theory is it that you’re offering us, exactly, please?
By all means, I’m interested in whatever others have to opine, as well.
“Would you argue that jurisprudence limiting the 1st amendment in cases of screaming ‘fire’ in a crowded theater therefore extends to the courts the power to completely ban free speech? ”
No, I would instead argue that the fact that we generally accept screaming “fire” in a crowded theater as a limit on the first amendment doesn’t offer us much further clarity, by itself, relying only on the Original Text Of The Constitution, as to what other limits might or might not be reasonably put forth by the Supreme Court, or as nonlegislative interpretation of the law and the constitution.
“Are you failing to distinguish between ‘some’ limitations and a complete ban?”
Again, if you could offer an objective test as to how we might determine what the limitations the Constitution allows courts to place, and which are forbidden, it would seem to clear this whole thing up entirely.
Absent that, I’m entirely unclear as to how much use your seeming suggestion that you know the limits, and we should all find them completely obvious, is.
Hoping you’ll help me out here with something objective, and self-consistent, I thank you again.
OK, I’ll try my hand at defining “emergency.”
You can only define it in retrospect.
For an analogy: if there was a sufficient emergency, could the government require all broadcast media to play a government message? I would say yes. Can I clearly say what counts as a sufficient need? No. But if the broadcasters were required to play government messages continually 6 months out of the year, I’d be pretty sure that it was not only happening in emergency situations.
“If you aren’t offering an objective test, as a substitute for the impermissible subjective tests you seem to assert have been historically and wrongly used, what useful Constitutional theory is it that you’re offering us, exactly, please?”
I’m arguing that emergencies don’t happen every year, and that they aren’t exactly the same every 75th year, so trying to pretend to have a theory about it would be pretense.
And since I’m trying to be honest about the workings of my theory, there I am.
Essentially I’m not willing to lie and say that my system is perfect. Welcome to the real world of theories that can’t cover every emergency.
But when the alternative is to pretend we are having that level of emergency a bunch of times every single year, I’m going to push back.
And that is essentially what liberal jurisprudence is asking for. They say: since Brown we therefore have these powers in any possible case before us.
9/11 changed everything, right?
What does and doesn’t the Constitution freeze, then, and how do we determine the answer to that question?
This seems to me to be the entire question. So I’d love to know what you believe the answer to be
Follow Scalia
This seems like a very dangerous line of interpretation.
No, I’m saying that the USAF could constitutionally be set up as a subpart of either the Army or the Navy. Having it entirely independent may be unconstitutional. So amend. Or not. Good point.
One other thing to throw out there. I’m no Slacktivist but I have a vague familiarity with “originalist” arguments about the Bible; that is, people who say that this is what the Bible really meant in Biblical times. What’s astonishing is the degree to which this “originalist” interpretation of the Bible almost invariably accords with the pre-existing tropes and mores of the interpreter.
IOW, everyone seems to feel that the Bible confirms what they already knew to be true. Which, given the plethora of opinions on the subject, is unlikely to be the case.
I’m not a fan of postmodernism by any means, but I think they did a great service in pointing out how much the interpretation of a text is contextual not just in its origins, but in the act of interpretation itself. This is my primary problem with originalism or anything like it: I’ve never yet seen a convincing demonstration that there is an originalist framework that somehow extricates itself from the present enough to warrant the claims of objectivity — even timelessness — it makes. A “living constitution” is thus redundant to me; any such text/document must, necessarily, be interpreted by the living, and change its meaning accordingly.
bc,
Just out of curiosity, are you currently a judge? If so, what kind of judge are you?
There’s no need to answer if you don’t want to, but one of your recent comments hinted that you were and I’m mildly curious.
Moreover, I think flying planes and launching nuclear weapons does pose constitutional questions: we’re talking about giving the federal government far more military power than the state governments or the people. I don’t think we can just brush such questions aside under an originalist reading.
But the Constitution provided for a standing armies and a navy, although the army has to be appropriated every two years. Thus, the federal government was likely to always be stronger militarily than the states.
The constitutional question would be whether the federal government could prohibit the states from possessing nuclear weapons. Different question.
But the Constitution provided for a standing armies and a navy, although the army has to be appropriated every two years. Thus, the federal government was likely to always be stronger militarily than the states.
Define stronger. Armies, especially armies dating from the late 1700s, cannot operate for significant amounts of time amongst hostile populations. That means that armies, as the framers understood them, could not sustain serious warfare in the face of a largely hostile populace. As a result, I don’t see how the framers could have authorized a military force that was not subject to (roughly) those limitations. Buried in the 1700s definition of the word “army” lies some fairly significant limitations.
Air Force bombers, even when limited to conventional weapons, can destroy whole cities thousands of miles away from their supporting populations. They are not subject to the same limitations that an army from the late 1700s was subject to. Not even close. Furthermore, this problem doesn’t go away if you declare that the Air Force is not an independent service. You cannot invest the Army with vastly greater destructive power unmatched by the states without raising some constitutional questions. At least, I don’t think you can under an originalist reading.
The constitutional question would be whether the federal government could prohibit the states from possessing nuclear weapons. Different question.
True. When I raised the issue, I had forgotten that the USAF is not the only service entrusted with strategic nuclear weapons. Be that as it may, I do think this separate question may be worth considering. I imagine that after the events of 1860-1864, many southern states might well appreciate the deterrent value of thermonuclear weapons.
Totally random: bc, for some reason I had had you pegged earlier as a Random Excitable Wingnut, to be subconsciously autoplonked. Well, I was wrong: you’ve really contributed to these threads, and I wanted to thank you for that. It’s not easy to be a conservative here (or so I’m told 😉 ), and it’s nice to see the ranks of Sebastian, von, OCSteve et al. increased in such a worthy way.
[Of course, now that I’ve said that you’re probably to come out in favor of, e.g., midget redistribution, but these are the risks I’m just going to have to take.]
Can I put in a request for clarification from a layperson with a strong interest in constitutional law, but no real grounding in these various philosophies of interpretation?
It seems that usually when I read these arguments over approaches to constitutional interpretation, the discussions are thoroughly bound up in the specifics of some controversial issue (Roe v. Wade, gun rights, etc) in which the discussants have strong pre-existing opinions which they are trying to justify. The resulting heat makes it somewhat hard for me to clearly grok the essence of how these approaches to interpretation vary, aside from their application to that particular controversy.
Therefore, if I lay out a particular constitutional question which does not seem to be the subject of any current emotion-laden controversy, can someone compare and contrast for me how some of these different schools of thought (textualism, originalism, living constitutionalism, etc) would tackle the question?
I’ll choose a first amendment question, since that’s my all-time favorite amendment.
As far as I know, it is widely accepted that although the 1st amendment guarantees freedom of speech, that there are quite a few limitations which can be placed on that speech. Commercial fraud, shouting fire in a crowded theatre, disturbing the peace, and disclosing state secrets come to mind, although I’m sure there are others. My question is, given that the plain text of the constitution does not mention or even vaguely allude to any of these exceptions, how would the various schools of constitutional interpretation justify (or denounce) these limitations on free speech?
I find it incredibly telling that you can’t or won’t give a straight answer on Brown or Loving. If the only justification for the ruling is the emergency racial relations justification not located in the test, then those cases are, in fact, incorrect interpretations are the 14th Amendment. A position that I find legally indefensible because of the plain meaning of the text, but if that’s what you think, defend it! And if they are correct interpretations, then you’ve got a theory that the original expected application determines the meaning & is binding except when it doesn’t.
If Brown is a correct interpretation of the text of the Constitution, why is it justified based on this weird, made up “emergency” basis? Why does there need to be an emergency to apply the words of the 14th amendment even when they contradict what was in the heads of some of the ratifiers? If it is not a correct interpretation, why can’t you say so?
It’s an “emergency” only for your judicial theory, because it totally discredits it. It’s not just that the moral consequences would be disastrous. It’s that the result of applying the original expected application so contradicts the meaning of the words “equal protection of the laws” that it undermines your argument that original expected application is synonymous with the “plain meaning of the constitution.”
Sebastian, how do you feel about Kelo v. City of New London? It seems to me (so Not A Lawyer, I’m an anti-lawyer [grin]), that the SC got this right: Eminent domain is not covered by the Constitution, therefore the SC had to throw the decision-making back to the city or state. Is there something I’m missing, or is eminent domain one of those issues where the result matters more than the process (not for you personally, but for those enraged by the decision).
Turbulence: No, I’m not a judge. In private practice. I have a person working for me as a clerk (he’s still in law school). Since he can’t be called a paralegal under a recent state law, I call him a “law clerk”.
Katherine, I believe that the clear text of the 14th gets you to Brown just fine, but so many constitutional scholars on both sides disagree with me that I’m skeptical of my understanding.
One of the big problems for me in our typical discussions is that you try to get way too much work out of the orignal expected application/not distinction (it seems like the 100% versatile jack of all trades to get whatever you want distinction and I’m very skeptical of things that work like that). For example you want it to operate in the death penalty cases even contrary to explicit text. That seems clearly wrong, as an original expected application that is in the text has to rule over a non-expected application that isn’t in the text.
Also you have never explained how a protection of say habeas corpus would work in novel (or in what the administration would argue was novel) situations that violate the expected-at-the-time meaning. Would you be open to the argument that habeas corpus requirements don’t apply in the terrorist arrests due to changing societal understandings of the interplay between foreign terrorists and the homeland even though the original expectation of habeas functioning would tend to make it look like the arrest and holding of them should mean that they have the right?
It is a tool that always seems to work in the favor of the arguer using it, and I’m skeptical of those type of tools.
It also doesn’t seem to get you where you want to go in cases like Roe.
Furthermore you have never explained how the Court gets to get ahead of the society in cases where the clause in question is argued to be based on societal expectations (see especially the 8th but really anything where ‘changing social norms’ or some such gets invoked). If the decision is really on changing social norms, shouldn’t the Court be following, not leading?
Because there isn’t any other issue likely to come before the Court or that has come to the Court that comes anywhere near the “race in the US” issue.
How does one simultaneously argue this, while also arguing that Roe was so momentous that it created an entire political movement and changed two generations of voting demographics?
Jeff, I don’t know what you mean when you suggest that the Constitution is silent on eminent domain. It isn’t.
The key there is ‘public use’. This was traditionally thought of as something like parks or freeways or a government building or something. Kelo said that it was ok to take property from one private owner and give it to another private owner in various situations with limits that I won’t even try to understand (giving it to a mall is definitely ok, there is hints that something wouldn’t be ok but it isn’t clear what.)
“How does one simultaneously argue this, while also arguing that Roe was so momentous that it created an entire political movement and changed two generations of voting demographics? ”
We didn’t fight a civil war over it.
Eminent domain is not covered by the Constitution
OK, what?
[blockquote]Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, [b]nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[/b][/blockquote]
Katherine I think I can be clearer about my doubts re “original expected application” as an analytical tool.
I’m completely fine with it in the poison example. The understanding changed on facts. The court can take judicial notice of the change in facts.
I’m ok with it when tied to a specific phrase which has intentional ambiguity which changes with society. Say “cruel and unusual”. But then the Court has to generally follow societal change, it can’t lead.
I’m skeptical with it on unspecified rights that have a long extra-judical or common law history. A common law right tends to be fact specfic. Generalizing that and trying to avoid expected application seems like you are just trying to avoid the accountable branches to get what you want.
I’m dead set against it as a way to shoe-horn in rights with little or no history and ahead of actual societal change. At that point it just looks like a club to get whatever you want.
So when you want to use it in Brown and Roe and Furman as a club against me, I’m not sure it is equally appropriate in each case.
Sebastian:We didn’t fight a civil war over it.
Ah, so is that your answer to Gary as to the objective criterion by which this “emergency” theory may be measured?
The key there is ‘public use’. This was traditionally thought of as something like parks or freeways or a government building or something.
It is my understanding as a layman that SC jurisprudence allowing eminent domain seizures to benefit private property owners dates back at least as far as the mill cases in the 1830s if not Clark v. Nash in 1905. No?
I don’t know what you mean when you suggest that the Constitution is silent on eminent domain.
Thanks. I did warn you that there was something I was missing.
(BTW, Phil, HTTP, not BBCode. Don’t you wish there was one standard for all comments? I sure do, perferably BBCode. Then again, Preview is your friend!)
I mean, Brown was nearly a century after the aforementioned war, how big of a goddamned emergency could it have been? If the legislative process sufficed in the immediate and still-smoldering aftermath of that war, then what the hell?
Hey if you think that race relations aren’t a more pernicious and politically intractable problem than almost anything else that’s great. I’ll let other people argue with you on that premise, I have my hands full in other dimensions of the argument.
I’ll just restate that it is rather obvious to me that race relations are now and have been a bigger and nastier deal than just about anything in the history of the US. We did in fact fight a civil war about it. As strongly as I feel about abortion I’m not advocating a civil war over it, and in fact I’ll probably bite my tongue lose the Supreme Court and vote for a Democrat because Republicans have been so awful.
And I know that doesn’t sound like a big deal to you, but it is to me.
Katherine, in addition to my comment above, I would add that I’m essentially textualist about it so if you showed me a law that said “Car may only be painted green” but for some reason the expected application was that red would be ok, I would go by the text because it was in clear contradiction with the expected application. But I just don’t buy new applications that contradict other parts of the text, that is going way too far.
Phil, I’m not an expert on Kelo, but my understanding of Clark v. Nash is that it was much more of a water rights/flow case.
Anarch:
Thanks! Although I’m not here for the feedback, it’s always nice to know that at least my sincerity comes through.
Even though I consider myself conservative, I wouldn’t be here if I didn’t know I need (as my high school English teacher would say) to widen my pitifully narrow horizons. Your comments and the others that post here have made my horizons not quite so pitifully narrow.
I just hope my link to Scalia didn’t ruin your good opinion of me 🙂
Turbulence: We’ve become so oriented to a strong federal government that your concern seems anachronistic today. I haven’t heard a call for a strategic bomber force for a state since my exposure to Joe Vogler in Alaska (Alaskan Independence Party). He wanted to secede and take the military forces in Alaska for Alaska. Except he wanted separate nationhood, not just a super-militia.
“I can find nothing in the Constitution which says states cannot prohibit gay sex.”
Try the equal protection clause.
I can’t find anything in the Constitution which says states cannot prohibit all sex. Hmm?
Yoo et. al. have derived an incredible amount of power from the “executive power” of the President based on the first sentence of article II. Most if not all of that same crowd would go apeshit if the “judicial power” was interpreted to mean “justice by any means necessary.” Justice delayed is justice denied. Injustice leads to war. Injustice is an emergency. End all injustice. The Supreme Court has the power.
If any good comes from Yoo’s fraudulent memos — abetting war crimes IMO — it will be from providing another example of the bald judicial activism on the right.
Certainty and the resulting arrogance are national traits that have gotten the US into a fine mess and the Federalist Society, Bork, etc. are part of the problem.
Your comments and the others that post here have made my horizons not quite so pitifully narrow.
We put flouride in the comments to convert conservatives (and steal your PBFs)!
We’ve become so oriented to a strong federal government that your concern seems anachronistic today.
Oh I agree completely with you. Our society and legal system have changed dramatically in that regard. Which is the one thing that confuses me so much about originalism: it seems that an honest originalist reading of the constitution requires radically restructuring our society and the relationships between citizens, state governments, and federal governments. I mean, the framers had a very different conception of federal power than that which emerged after the Civil War. How do you reconcile that gap? Do you imagine that if the SC adopted a consistent originalist position that they would simply strike down government programs that did not fit (as in the Air Force example or indeed, the prohibition on states or citizens possessing nuclear arms)? Or do you think such understandings would be grandfathered in so as to minimize the disruption to society? Or do you think that gap is much smaller than I think?
Oh, and what Anarch said goes for me as well. Its good to have you here.
Hey if you think that race relations aren’t a more pernicious and politically intractable problem than almost anything else that’s great.
Which is not at all what I said, and if that’s the tactic into which you’re going to retreat, Jesurgislac Jr., you can go Cheney yourself. I asked why, if the legislative process was sufficient in the immediate aftermath of the Civil War, that nearly 100 years later things had become such an “emergency” that the legislative process no longer sufficed.
You can answer that question, or you can be an ass again. I suspect you’ll be an ass, but I’m prepared to be pleasantly surprised.
Re the death penalty’s constitutionality: while I agree that in theory, the fact that the framers anticipated that it was constitutional doesn’t mean that it’s forever outside the bounds of “cruel and unusual”, I don’t see how that helps the Brennan opinion. When a sizable majority of the public across the country seems to feel that the death penalty should be allowed, how can one seriously argue that the semantic domain of “cruel and unusual” has changed over time to include it?
Although to be honest, I haven’t read the opinion itself…
Phil,
I can’t speak for Sebastian, but I suspect he’s using the word “emergency” in a very different manner than you are. He seems to be using it to mean “massive structural problem in the constitution that reflects a fundamental problem in society” as opposed to “massive acute problem that requires exigent measures immediately”. In other words, I don’t think he imputes any sense of time or temporal urgency when he uses that word; its more about the depth of the structural flaws involved.
At least, that’s my guess. No doubt Seb will clarify his meaning. Either way, this analysis seems to raise a lot more questions that it answers, especially when it comes to objectifying it so that it can be deployed by people who are not Seb.
I am perfectly willing to admit that there have been any number of Sup. Ct. cases that are hard even impossible to reconcile with the text.
A flat ban of the death penalty was, imho, wrong. I think the Court had, and has, an ongoing obligation to review each state’s mechanism of death, both on an individual basis and, where State procedures are so grossly inadequate, on a Statewide basis.
But oddly enough, one doesn’t hear much talk from conservatives about how wrong the Slaughterhouse cases were. Nor about the Court’s utterly incoherent 11th Amendment jurisprudence. Nor many mea culpas about the literally unprecedented use of the 14th Amendment in Bush v. Gore.
Nor the conservative justices’ continuing support for corporate personhood. Nor the odd finding that there are limits to corporate punitive damages but virtually no limits to the ability of states, retroactively, to impose life sentences on minor felons based on their prior conduct.
Nope. Sebastian is as reliable as a swiss clock: death penalty and abortion (and, occasionally, gay sex). And not surprisingly, these are the issues that movement conservatives pound on in every available forum, desperately spending the credibility of a key institution of our democracy in return for one last vote.
Ya know, conservative attacks on the court would have just a smidge more credibility with me if they were willing to take a hard look at the badly decided cases that went their way.
Turbulence you are correct about ’emergency’.
As for objectifying it beyond me, please keep in mind ‘compared to what’?
If it is a problem that my understanding breaks every 100 years or so on an issue the magnitude of race relations in the US over the past 200 years, that isn’t necessarily bad compared to the currently proposed alternative system of judges can say that black is white that publius was talking about from the previous thread.
If it is a problem that my understanding breaks every 100 years or so on an issue the magnitude of race relations in the US over the past 200 years, that isn’t necessarily bad compared to the currently proposed alternative system of judges can say that black is white that publius was talking about from the previous thread.
But if we can’t take your proposed process and systematize it into an objective rule, then it boils down to exactly judges saying black is white.
I understand that you think race is a bigger issue than abortion, but other people will certainly disagree and I don’t see a principled way to argue against them within the framework you’ve described. There’s no clear principle or dividing line, which is what Gary and Katherine have been trying to get you to describe.
I just hope my link to Scalia didn’t ruin your good opinion of me 🙂
Oh, don’t get me wrong, I’ve never actually agreed with you (:
Here’s another question thrown to the assembled throng: what would be wrong in your minds — if anything — with a justice saying, “Well, in my opinion, the death penalty is cruel and unusual; therefore, since (as a Supreme Court Justice) I am an arbiter of such things, I find it unconstitutional.” ?
[I’m not saying anyone has actually said this, I’m just wondering what people find wrong with that position.]
I’m not sure the fifth is as textually clear as some here are arguing vis-a-vis eminent domain. To me, the plain text reading of that clause of the fifth says only that if and when land is taken from a private party for public use, then just compensation must be provided. It does not say under what other circumstances private land can or cannot be taken, or what should happen in those cases.
It has been interpreted as meaning what Sebastian and others say it does, but that’s not what the text says.
The waters get even muddier when you start introducing the Justice Thomas idea (and maybe also Scalia, but I forget) that some parts of the Bill of Rights “resist incorporation.” So the fifth could also be construed as one of those amendment that applies only to the federal government, in which case sending Kelo back to the local authorities would have been precisely the correct thing to do.
” For example you want it to operate in the death penalty cases even contrary to explicit text. That seems clearly wrong, as an original expected application that is in the text has to rule over a non-expected application that isn’t in the text.”
Not if making it decisive violates the Ninth Amendment’s rule of construction. Again, you are using an enumerated right NOT to be subjected to capital punishment without due process, subjected to double jeopardy, etc. to disparage the right not to be subjected to cruel & unusual punishment. If the application of cruel & unusual punishment clause can change with time, that goes for capital punishment too, unless you read the rest of the text in a way that the Ninth Amendment explicitly instructs you not to read it. The text does NOT state that “capital punishment is constitutional”. You can use it to imply that capital punishment is necessarily constitutional but that violates the Ninth Amendment rule of construction.
How do you reconcile that gap?
I don’t think it can be reconciled. That in a way is my point. We have ceded too much power to the judiciary and away from state and federal legislatures. But we can go back. The “grease” to make it happen would likely be in the remedy.
For example, if the USAF is unconstitutional, rather than disrupt the lives of those men and women in the service and to avoid leaving us vulnerable, you could give congress enough time to get it right (back to the Army Air Corps). Of course, congress could simply disagree and refuse to budge (but different constitutional issue).
Same with Brown v. Board of Ed. There is as much controversy in the remedy as there was in the grounds for the decision. Because so much time had passed since the 14th A., there was a “reentry” problem to getting things back to the way they should have been all along.
Nor many mea culpas about the literally unprecedented use of the 14th Amendment in Bush v. Gore.
Let me be the first. Should have relied on Article II alone.
I’ve never actually agreed with you (:
At least read it. It has its funny parts.
what would be wrong in your minds — if anything — with a justice saying, “Well, in my opinion, the death penalty is cruel and unusual; therefore, since (as a Supreme Court Justice) I am an arbiter of such things, I find it unconstitutional
Nothing if the Constitution read “cruel and unusual punishment in the opinion of the majority of the Supreme Court Justices.”
Read Scalia’s dissent in Roper v. Simmons. In short, “The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”
“I’m skeptical with it on unspecified rights that have a long extra-judical or common law history”
I don’t know quite know what you mean by “unspecified rights.” Every single one of the rights protecting amendments is written in pretty general terms. When I’m arguing that a right is constitutionally protected, I pretty much always saying:
–this is an element of the right to due process/equal protection/free speech/free exercise/some other right specifically listed in the text
or
–the text implies that this right is protected; this right has to be constitutionally protected to make the other individual rights provisions meaningful protections of liberty.
An example of the second category: the argument that the Const’s statement that private property may not be taken for public use w/o just compensation implies that private property cannot be taken by the state for private use. There’s a textual basis for that but it’s implied, not stated outright.
If you read the text really literally, not only is the state taking for private use allowed, but there’s no need to compensate for it. But that wouldn’t make any sense at all, which is why you need purposive textualism.
bc, quoting Scalia
any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”
That Scalia remark is also a jab at Kennedy and his citations of foreign cases, and I don’t think we’ve discussed that, so I’m wondering why the SCOTUS should or should not ignore foreign legal precedents. There was an interesting Toobin article on it (I think in the New Yorker), but it must have been part of his book, _The Nine_, cause the article doesn’t come to the top of a Google search. The google search also reveals that the Toobin book has attracted the ire of a lot of conservative bloggers, though this is just at a glance as I am at Narita airport on public internet on my beater computer, so I hesitate to pop open a lot of tabs.
btw, I’d second anarch’s praise of bc and also, as much as it might seem like déja vu all over again, I appreciate Seb and Katherine laying out their points again in a civil manner, as it does serve to educate a non-lawyer like me.
“f the application of cruel & unusual punishment clause can change with time, that goes for capital punishment too, unless you read the rest of the text in a way that the Ninth Amendment explicitly instructs you not to read it. The text does NOT state that “capital punishment is constitutional”. You can use it to imply that capital punishment is necessarily constitutional but that violates the Ninth Amendment rule of construction.”
You’re assuming that the Ninth Amendment ought to be read as if it can overrule other sections of the Constitution that were passed at the same time. There is no reason I can think of that you should assume that. Especially since the Ninth is non-specific while the previous amendments are specific. Under your analysis they really should have had ONLY the 9th amendment–a view which was shared by one of the founders so it isn’t completely ridiculous.
You’re essentially saying that the meaning of one section can change to invalidate another section. I’m saying that the sections validate and limit possible interpretations of each other. If you stretch and stretch and stretch the meaning of one so far as to contradict the limits set by another, a textual analysis suggests that you have stretched the first phrase too far.
If you have time, I’d like a response about why social mores about the presidential war powers can’t change enough to potentially invalidate habeas corpus rules the way you think the 8th amendment can invalidate the strong suggestion that the death penalty is permitted under the Constitution in your Constitutional theory. Can purposive readings be used to expand Presidential powers at the expense of personal rights? (See for example property rights and eminent domain perhaps).
“Every single one of the rights protecting amendments is written in pretty general terms. When I’m arguing that a right is constitutionally protected, I pretty much always saying:
–this is an element of the right to due process/equal protection/free speech/free exercise/some other right specifically listed in the text
or
–the text implies that this right is protected; this right has to be constitutionally protected to make the other individual rights provisions meaningful protections of liberty.”
This isn’t true of the Marshall opinion on the death penalty cases. Do you agree that he went too far?
Relatedly you haven’t ever answered how or why the Court is permitted to get ahead of the society on questions where social mores allegedly have an influence. It seems to me if “cruel and unusual” is supposed to evolve to reflect new social understandings the Court might want to wait until there is an actually new social understanding.
Here’s what I the citizen actually think about the death penalty:
Yes, it’s cruel & unusual.
1. “Cruel & unusual” means “cruel and excessive,” or “unnecessarily cruel,” or “gratuitously cruel” not “cruel and uncommon.” Only way to make sense of the clause & there’s plenty of support for this reading in the case law.
2. Obviously the death penalty inflicts a great deal of suffering on a person. Does it inflict excessive, gratuitous, unnecessary suffering? Well, what’s our justification for the suffering?
3. We don’t have good evidence that it deters murders.
4. I think the main justification is retribution. I do concede that retribution is a legitimate purpose of criminal justice. But, the legitimate side of it is to express society’s moral condemnation of the act, not society’s hatred of the person who committed it. And there’s a limit to the punishment it justifies.
We agree, I think, that torture & rape are lesser offenses than murder. We also agree that sentencing torturers to be tortured & rapists to be raped would be cruel & unusual. Why? Because we can’t very well show how wrong we think rape is by raping people. We can’t very well show how wrong we think torturing is by torturing people. So why do we think we can express how wrong murder is by murdering people? (I use the term “murder” because if anyone but the state carried out an execution, we’d call it murder).
5. I think it feels different because unlike rape or torture, killing incapacitates: it’s possible to kill in self defense; you can’t rape in self defense. An execution isn’t self defense, but it is a sure way to prevent the condemned from harming anyone else ever again. And it was once the only reliable way to ensure this. But not anymore, not in the U.S.
6. If 5 sounds silly let me draw an analogy:
assume the death penalty IS constitutional. Is it permissible to inflict more pain than you need to inflict during an execution? Or are you obligated to kill someone as painlessly as possible?
If the latter, then it’s quite possible for a method of execution to become cruel & unusual because of scientific changes. If hanging & the electric chair inflict much, much more suffering before death than lethal injection. Because, you could say, there’s another way to incapacitate someone & express condemnation for their actions without inflicting gratuitous pain & cruelty.
So: it’s possible that hanging someone in 1789 is not cruel & unusual but hanging someone in 2008 is, because in the interim we’ve developed another way to execute them that inflicts less suffering. Well, then. It’s also possible that execution in 1789 was not cruel & unusual but doing it in 2008 is, because society has developed another way to incapacitate them & express condemnation for their crimes that inflicts less cruelty & suffering.
7. Whether this would be a basis for I the Supreme Court justice to overturn established precedent, I don’t know. You can argue that it shouldn’t be MY view of what’s gratuitously cruel. But, they put the words “cruel and unusual” in the constitution; they knew how subjective it was; and it’s my job to interpret the constitution. It doesn’t make sense for me to just say, “the legislature decides” or “the majority decides”; if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn’t serve any purpose.
You could argue that all of this is much too shaky for me to overturn settled precedent. But, there’s no clear guidance as to when you keep a precedent you think is wrongly decided under the text due to stare decisis, & when you overturn it. Anyway, regardless of what I’d do on the Supreme Court, I do think that the death penalty is cruel & unusual punishment; the only question is whether I’m certain enough to vote to overturn centuries of precedent, the original expected application, the current popular consensus, etc. Since I’m not on the Supreme Court I don’t need to decide this, but even if they made the wrong call on this one I will remain very, very grateful that William Brennan & Thurgood Marshall were on the Supreme Court, & totally convinced they were each better justices than Roberts, Scalia, Thomas, & Alito put together.
“It seems to me if “cruel and unusual” is supposed to evolve to reflect new social understandings the Court might want to wait until there is an actually new social understanding.”
I think the Supreme Court claiming to speak for the social consensus of the majority of the American public is a pretty dubious argument for striking down a statute enacted by the elected branches. I also think it’s pretty silly to assume that any provision in the bill of rights is supposed to mean what the majority says it means & no more, because the whole point is protection of minorities against the majority. This is why I say “cruel and excessive” makes more sense than “cruel and unusual.”
The Supreme Court justices are appointed & confirmed by the elected branches so there actually is a mechanism in place for ensuring they don’t get too far out of whack with the “emerging social consensus.”
“Whether this would be a basis for I the Supreme Court justice to overturn established precedent, I don’t know. You can argue that it shouldn’t be MY view of what’s gratuitously cruel. But, they put the words “cruel and unusual” in the constitution; they knew how subjective it was; and it’s my job to interpret the constitution. It doesn’t make sense for me to just say, “the legislature decides” or “the majority decides”; if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn’t serve any purpose.”
The problem is that you are simultaneously justifying the decision because society has allegedly changed its view, and then immediately backtracking to say that the societal view doesn’t control if it disagrees with you (or the individual judges).
How is that different from just saying that whatever the judge wants should control?
How is that ‘law’?
This is especially troubling:
As far as I understand it, your whole argument with me has been that society’s understanding of certain clauses (like ‘cruel and unusual’) can change so much that their interpretation can actually contradict other sections of the Constitution.
But when it comes down to how that mechanism actually works you now assert that the views of the majority and the legislatures aren’t important because that would invalidate the 8th amendment.
How can that possibly work? You are arguing that the 8th amendment must change to fit society’s view of ‘cruel and unusual’ AND arguing that it must overrule society’s view of ‘cruel and usual’.
And I catch crap for having a once every generation emergency clause?
This is your routine understanding of how the Constitution is supposed to work on everything!
“How is that different from just saying that whatever the judge wants should control?
How is that ‘law’?”
See: U.S. Constitution, 8th amendment, “cruel & unusual punishment” clause. I was just interpreting that text & applying it to the death penalty.
“How can that possibly work? You are arguing that the 8th amendment must change to fit society’s view of ‘cruel and unusual’ AND arguing that it must overrule society’s view of ‘cruel and usual’.”
I am arguing that the application changes with the facts & the terms are vague enough & contain enough loaded moral terms that they are impposible to interpret without the exercise of judgment by the interpreters. Judges making judgment calls, what a concept! Different judges exercise their judgment differently. But, not surprisingly judges who live in a particular time, who a common set of historical experiences & common knowledge of certain historical facts, who are close enough to mainstream public opinion of that time to get themselves nominated & confirmed, are going to reach a consensus about some things that is different from the consensus in past generations.
There is nothing illegitimate about any of this, every other country with a Constitution in the world realizes it, and Scalia’s & your argument to the contrary is a load of crap that we should have stopped falling for long, long ago. You are absurdly, absurdly obtuse about this.
“if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn’t serve any purpose.”
Forget troubling; explain how it’s wrong. If the elected branches are the final word on the meaning of a constitutional clause, than the passage of a law is irrefutable proof of its constitutional. That doesn’t make any sense.
So your new argument is, to be legitimate the Supreme Court opinion must reflect either the original expected application or the will of the majority? Oh, look, there go those civil rights cases again…
“if the majority & legislature were supposed to be the final word on whether a criminal punishment is cruel & excessive then the 8th amendment doesn’t serve any purpose”
This isn’t true by the way. It is perfectly possible that an enormous majority of the country could come to one understanding and there could still be a holdout state or two.
That is completely counterfactual as to the death penalty but just because the reasoning doesn’t get you what you want out of the death penalty cases doesn’t mean that it “doesn’t serve any purpose”. It just doesn’t serve the purpose of getting the outcome you want in that particular case.
So to be clear, you want to justify interpreting a clause contrary to historical precedent and previous expectations of application by appealing to changing moral values even if the majority has not changed in fact its view of the moral value or clause in question?
And you think this applies to any clause where there is (from your point of view) ‘ambiguity’?
So if Bush can get 5 judges to vote against habeas because of their purposive reading of Presidential powers and their personal understanding of morality (majority reading unneeded of course) you won’t say that they are Constitutionally wrong, merely that they made an unfortunate decision that you disagree with in terms of outcome?
Your method sounds to me like it protects the civil rights cases even less than my method.
Again, the complaint that I have to appeal to an emergency in the racial issue seems to pale in comparison to the holes in the actual application of your theory. Essentially every single possible decision under your theory has the problem I’m getting slammed with on the Brown case.
Original intent is a lot like Fundamentalist Religion. No one would wish or accept all the actual views or expectations of 200 or 2000 years ago, it is only a matter of what they pick and choose to see, and what they choose to ignore. Even when the ignored bits are the natural result of the bits they favor.
The one thing that is clear is that the actual “original intent” was to hold all power as limited and accountable as possible. It was well understood that nobody can plan for everything, and atrocities like Slavery, racism, etc. were imperfections that could not be fixed at the time but neither any part of that ideal.
Always the conservative stand has been that Civilization was not yet ready to address this or that atrocity, but always that it could be fixed in some indefinite future.
It is only the recent Gang Of Pirates that has attempted to restore atrocity with a “house of cards” reasoning, held up more by repetition and vehemence than by logic, as the slightest zephyr of reality blows it to bits, that the Constitution was about protecting Power in the form of “Ownership”, giving only such freedoms to actual people, as the most narrow reading would allow.
The Constitution is not an insurance policy like the ones you get written by Company Lawyers providing for only the narrowest rights for actual people, but rather the most expansive rights for actual people to decide about their own life and maximum accountability for those who decide for others. That is the only “Original Intent”.
I can’t speak for Sebastian, but I suspect he’s using the word “emergency” in a very different manner than you are. He seems to be using it to mean “massive structural problem in the constitution that reflects a fundamental problem in society” as opposed to “massive acute problem that requires exigent measures immediately”. In other words, I don’t think he imputes any sense of time or temporal urgency when he uses that word; its more about the depth of the structural flaws involved.
Yes, well, as you note, that doesn’t really get us anywhere aside from getting Sebastian to admit that, yes, in fact, there absolutely ARE times when “the Court is permitted to get ahead of the society on questions where social mores allegedly have an influence” and doesn’t have to “wait until there is an actually new social understanding.”
That other people construe when those times occur differently from when Sebastian does is, well, unremarkable.
In fact, I’d submit both that:
— The structural and institutional deficiencies in the application of the death penalty are, on 14th Amendment grounds alone, sufficient to ban it outright per Sebastian’s “emergency” rule; and in fact that this was MORE true at the time of Brennan than it is today. We have, theoretically, more forensic tools available than ever before to help us apply evidence and the law accurately in capital cases. We didn’t in 1972.
— You can probably get a sufficient number of people (I am not one of them) to agree that the state of gun violence in this country and its corresponding death count is an “emergency” to merit the Court voiding the Second Amendment.
If that’s the road he wants to go down, well, OK.
“This isn’t true by the way. It is perfectly possible that an enormous majority of the country could come to one understanding and there could still be a holdout state or two. ”
8th amendment, not the 14th. It applies to the federal gov’t and was incorporated against the states much later. And of course I think cases can be wrongly decided. My point is that there is no foolproof silver bullet theory of interpretation that prevents cases from being wrongly decided. Yours works no better than mine: see Bush v. Gore. See the torture memos; Yoo purports to be originalist. See Dredd Scott, which uses an originalist justification. etc. etc. ad infinitum. It’s not only that originalists are fallible too; it’s that I think there track record is noticeably noticeably worse. The response to this is usually: but that’s what the Constitution MEANS. I say, no, it doesn’t, and your argument for why it means that is utterly discredited by cases where the plain meaning of the text blatantly contradicts the original expected application, of which the racial cases are only the most blatant of a long line of examples. The fact that your theory comes out with the legal equivalent to “2 + 2 = 5” in the context of the equal protection clause & Jim Crow isn’t some wacky emergency; it’s a sign that your theory is broken. If your computer program was telling you that 2 + 2 = 5, you would think, “gee, I think something’s off with this program.”
No doubt you’ll have another idiot straw man to respond to this…I’m rapidly losing interest, but Balkin’s latest is good.
Phil, Brennan’s a Justice, Furman’s the case.
“So to be clear, you want to justify interpreting a clause contrary to historical precedent and previous expectations of application by appealing to changing moral values even if the majority has not changed in fact its view of the moral value or clause in question?”
I’m appealing to changing facts: it was once practically impossible to incacitate people without executing them. It’s not anymore. Why don’t you actually try dealing with the actual argument for once? Especially the analogy about more & less painful means of execution. I’m acknowledging that my analysis of what counts as “cruel and excessive” is necessarily informed by my own moral views, instead of lying about that fact or deceiving myself about the fact. Also, I did not say whether I thought a Supreme Court Justice should rule the death penalty unconstitutional; maybe they shouldn’t because of stare decisis. I said I the citizen thinks it’s unconstitutional.
We don’t have good evidence that it deters murders.
You answer this later in the same comment. It certainly deters the offender from offending again. In a debate at my law school on capital punishment, a police officer spoke about having to inform a family that a released murderer had killed again. Best argument I ever heard in favor of the death penalty (in policy terms, not legally).
So: it’s possible that hanging someone in 1789 is not cruel & unusual but hanging someone in 2008 is . . .
Great. The Constitution doesn’t say you HAVE to use capital punishment. So either pass a law banning it or amend the constitution.
How exactly do you reconcile the 5th and 14th Amendments’ “deprived of life . . w/o due process” or the 5th amendments capital crimes/grand jury language with your interpretation of the 8th A? Clearly it was Constitutional in concept at the time of drafting.
I can respect an approach that utilizes only the due process clauses and says as applied there is no due process here. At least it’s textually based. But the moving standard is a problem. Substitutes 9 justices for the legislature.
I will remain very, very grateful that William Brennan & Thurgood Marshall were on the Supreme Court, & totally convinced they were each better justices than Roberts, Scalia, Thomas, & Alito put together.
Interestingly, in a time when the confirmation process was not so political, Scalia was confirmed 98-0. And it appears that your definition of “better” is results oriented.
Different judges exercise their judgment differently. But, not surprisingly judges who live in a particular time, who a common set of historical experiences & common knowledge of certain historical facts, who are close enough to mainstream public opinion of that time to get themselves nominated & confirmed, are going to reach a consensus about some things that is different from the consensus in past generations.
And why you can’t leave the Constitution to anyone’s whim. BTW, do you really think any of the justices are “close to mainstream public opinion?” Roberts maybe. But Souter? Ginsberg?
the Supreme Court opinion must reflect either the original expected application or the will of the majority? Oh, look, there go those civil rights cases again…
I see no reason why you necessarily lose the civil rights cases under the 13-15th amendments. Badges of slavery.
There is nothing illegitimate about any of this, every other country with a Constitution in the world realizes it, and Scalia’s & your argument to the contrary is a load of crap that we should have stopped falling for long, long ago. You are absurdly, absurdly obtuse about this.
Every other country in the world has absolutely nothing to do with our Constitution. Except that certain justices seem to now think it is relevant.
I’m appealing to changing facts: it was once practically impossible to incacitate people without executing them. It’s not anymore.
But you’re appealing to 9 unelected people instead of the legislature. So change the law. Or the Constitution. The right way.
“I’m appealing to changing facts: it was once practically impossible to incacitate people without executing them. It’s not anymore. Why don’t you actually try dealing with the actual argument for once?”
Where did you make this argument before? I don’t even remember it as a throwaway line much less any major part of your argument. Did I miss the comment where you highlighted the importance of that argument enough to think that “Why don’t you actually try dealing with the actual argument for once?” makes sense. Can you show me the comment where you made this an important facet of the conversation, here or in ANY of our previous conversations on the topic?
But now that you’ve raised this issue, you’re completely wrong on the facts. We’ve had very successful maximum security prisons in the US for more than a hundred years. Alcatraz was opened in 1907 and it wasn’t even the first of its kind. San Quentin was opened in 1852. Leavenworth was opened in 1903. SingSing was opened in 1825. And those are just the famous ones I can think of enough to throw their names into google to find out when they opened. I’m pretty sure there are lots of others ones.
“We don’t have good evidence that it deters murders.”
You’re completely wrong there too. We now have excellent evidence that the death penalty deters murders. The only question now is where the range of prevention lies: low estimates are 3 murders prevented for every execution, high estimates are 18 prevented for every execution. See for example the Mocan study: Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000
American Journal of Economics and Sociology, vol. 65, no. 4, p. 909 (Oct. 2006). (Note that he is a death penalty opponent!) According to the guardian article “A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. “The results are robust, they don’t really go away,” [Professor Naci Mocan] said. “I oppose the death penalty. But my results show that the death penalty (deters) – what am I going to do, hide them?””
There is a whole list of modern studies, all of which show a detterence level of at least 3 prevented murders per execution here .
See also an essay by Cass Sunstein in the Stanford Law Review on the topic here .
“No doubt you’ll have another idiot straw man to respond to this…I’m rapidly losing interest”
Apparently you already did. It is amazing that you are so snippy with me on allegedly changing ‘facts’ when you are wrong on the facts you say have changed.
In a debate at my law school on capital punishment, a police officer spoke about having to inform a family that a released murderer had killed again. Best argument I ever heard in favor of the death penalty (in policy terms, not legally).
Yes, I suppose that would be a compelling argument if the only alternatives were releasing murderers and executing them. Unfortunately, there is another option, one whose existence makes this whole argument fall apart.
If your only goal is to minimize murders, you should be executing everyone who commits any violent crime and you should be executing anyone involved in domestic violence. But that’s patently ridiculous.
As I recall, the state has no obligation to protect the lives of its citizens; the police certainly have no obligation to show up promptly or even at all when I call 9/11.
Far more people die of substance abuse each year than of homicide. Perhaps if avoiding deaths is the paramount objective of the government, we can begin bombing cigarette and alcohol production facilities?
Turbulence: “Far more people die of substance abuse each year than of homicide. Perhaps if avoiding deaths is the paramount objective of the government, we can begin bombing cigarette and alcohol production facilities?”
Maybe for some people there is a moral difference between murder and allowing people to do pleasurable things that also risk hurting themselves.
Just throwing it out there.
Also re:
In your first paragraph you seem to be alluding to life imprisonment as if it had the same effect as execution. But you may be drawing back from it in the next paragraph. Your second paragraph is argument by hyperbole, but it doesn’t even succeed on those terms, as I at least would be willing to have executions for rape, many forms of kidnapping, certain forms of torture that stop short of murder, and certainly a number of other violent crimes.
Furthermore when you attack things under the rubric of “if your only goal is ‘X'” it is almost always a strawman. Very few people act as if they had only one goal.
Secondly as there is very strong evidence (to the level of peer reviewed articles on the subject) that executions of murderers deter murders (in addition to the executed murderer himself) you can make the argument that deterrance plus just retribution makes an argument for capital punishment of murderers that doesn’t have to automatically extend to all detterance possibilities. (This is where retributive concepts act to restrain punishment–no matter what the deterrance value, you ought not be punished more than you deserve. In a system where retributive ideas are excluded [which I’m not suggesting that you are arguing for] you might get excellent dterrent value from punishing factually innocent people if you do it with the right propaganda).
Bombing those facilities would violate the clean air act 😉
Slightly nonsensical: How many executions would be necessary to drive the murder rate to zero*? Or would one have to stop the moment the number of executions exceeds the remaining muder cases?
With a bit more of reality: For what circumstances were these studies made (only the US or worldwide, what period of time etc.)? I would think any deterrence effect would be highly dependent on the circumstances and the way of application**.
Another question not totally removed from reality: I know people (not US citizens, so the “cruel and unusual” does not apply) that think “simple” death is not strong enough a deterrent and that therefore capital punishments needs to be dehumanized again. On at least one occasion I have heard the argument that torturing to death really slowly would be the thing.
To a question asked high high above:
Term limits for judges on the German supreme court (8 years iirc) work extremly well but the court is by far not that politicized (the German constitution is also easier to change and is updated on quite a regular base) and there is common consent that an ex-supreme court judge (at least federal) may not use his former position for personal gain. The options are: 1. retirement, 2. Academia, 3. Head a nonpolitical public or otherwise non-profit institution, 4. Head of state (no formal political power).
Totally unlike the US it also seen as quite inappropriate for former heads of the executive to go for profit on that afterwards (ex-chancellor Schröder’s behaviour was legal but seen as clearly over the line by the public and GASPROM may have made a bad acquisition with him for that reason).
*assuming there is a linear relationship not an asymptotic one
**so, I would on principle doubt the methodology on this independent of result or personal opinion of the person doing the study, since double-blind studies are not really possible here.
Given that there is definite, concrete evidence from other countries that there’s no effect on the homicide rate from banning or inflicting the death penalty, I would want to know – if there are studies showing that there is such an effect in the US, what makes the US homicide rate so different from other countries?
The US has (this may not be the most recent figure – the government site is down) a homicide rate of 8.4 per 100 000: in the UK, where we haven’t executed anyone since 1964, it’s 1.97 per 100 000. For Scotland, which has the second-highest homicide rate in Europe, it’s 2.33 per 100,000 – the last person executed in Scotland was hung in 1963.
Since 1998, in the UK, there has been no death penalty permitted for any offense, including high treason and piracy. There has been no sharp rise in the number of homicides as a result (nor was there when the death penalty was abolished for murder in 1963). There has been a steady rise in the homicide rate (this graph adds notes explaining such things as an unusual apparent peak in 2002/2003, when all of Harold Shipman’s 215 confirmed murders were added to the crime statistics for that year) but given the improvement in criminal detection over the same time period (and the rise in drug-related offenses) it’s impossible to correlate this to removal of the death penalty.
I confess: I do not follow the arguments in the link you provided. But they do seem to be focussing exclusively on the US, and ignoring the effects of the death penalty’s repeal or imposition in other countries. (Australia is the classic example, where homicide rates remained relatively constant across different states regardless of whether the state had the death penalty, never had the death penalty, or repealed, re-instituted, and repealed the death penalty.
So, presuming these studies showing a correlation between the state killing an alleged killer and other killers being deterred is accurate, why is the US different?
Maybe for some people there is a moral difference between murder and allowing people to do pleasurable things that also risk hurting themselves.
I don’t see room for such differences in the exceedingly narrow moral universe bc’s anecdote suggested.
Furthermore when you attack things under the rubric of “if your only goal is ‘X'” it is almost always a strawman. Very few people act as if they had only one goal.
Quite possibly. But then perhaps you could convert bc’s fragment of a thought into an actual argument. What policy are we supposed to adduce from this little anecdote if not the notion that we should take extreme measures to ensure that police officers never have their feelings hurt by having to tell someone their family member was killed by a murderer?
Secondly as there is very strong evidence (to the level of peer reviewed articles on the subject) that executions of murderers deter murders (in addition to the executed murderer himself) you can make the argument that deterrance plus just retribution makes an argument for capital punishment of murderers that doesn’t have to automatically extend to all detterance possibilities.
It might help if you mentioned that other studies contradict and question the results you pointed to; a brief survey can be found here. Your argument implies that the science is settled, but I don’t think that’s true at all.
“Slightly nonsensical: How many executions would be necessary to drive the murder rate to zero*?”
At the current small level of executions I suspect that it would appear linear for medium-level increases. The overall curve is almost certainly asymptotic. Simplisticaly if it were on a 1/x curve (and if deterrance were the most important factor) I would suspect we are on the far right where the slope is very steep. Now if the slope were closer to -1 you might argue that we are approaching diminishing returns.
(Of course there other other appropriate concerns rather than pure deterrance–actual guilt and innocence being a very important one.)
No, exactly like global warming the science is settled. At this point, exactly like global warming, the bickering is over the magnitude of the effect.
Turbulence: “Far more people die of substance abuse each year than of homicide. Perhaps if avoiding deaths is the paramount objective of the government, we can begin bombing cigarette and alcohol production facilities?”
Maybe for some people there is a moral difference between murder and allowing people to do pleasurable things that also risk hurting themselves.
Um. If your argument here is that drinkers and smokers only risk hurting themselves, you may want to re-examine your premises.
And clearly, given Jes’s post, the science is manifestly not settled.
Seb,
If you feel that the scientific debate over global warming is being misrepresented, may I suggest you make a post exploring that issue so that we can discuss it? I think people will be happy to engage in a discussion and review whatever literature you feel is being ignored or misrepresented, but that’s difficult to do without a place to discuss and I’d rather not thread jack here.
My only point in bringing up the anecdote was to highlight the one deterrent effect often overlooked.
So if studies show that where capital punishment is “in play” the murder rate doesn’t change, what does that mean? How do you isolate the deterrent effect? I would think that if the murder rate doesn’t change that would actually mean the murder rate would be higher without capital punishment because you are preventing murderers from killing again.
Then again, if the rate goes up, what does that mean? What if it is for reasons completely unrelated to the deterrent impact of capital punishment? Wasn’t the argument in Freakonomoics that the drop in crime rate was linked to Roe? How does that relate to Australia or Europe? Now they say that proximity to a slaughterhouse can affect the violent crime rate? (are we about to get new slaughterhouse cases? 🙂
I, for one, think there are things so horrific that I don’t have a problem with capital punishment to express society’s outrage and to prevent reoffense by the same person.
But we digress. These are great arguments for a legislature to have. The only question for SCOTUS is whether it violates the Constitution. I am open to the argument that you can’t implement a fair system. In theory, no problem. In practice, I have questions.
“No, exactly like global warming the science is settled.”
This is not only false, but ludicrous, & shows a complete ignorance of the flaws in econometric regression analysis.
“If you stretch and stretch and stretch the meaning of one so far as to contradict the limits set by another, a textual analysis suggests that you have stretched the first phrase too far.”
I don’t know what “a textual analysis” means in the context of this sentence.
Could you elaborate, a bit, perhaps, so it reads to me differently than “If you stretch and stretch and stretch the meaning of one so far as to contradict the limits set by another, Sebastian’s personal opinion suggests that you have stretched the first phrase too far.”?
Thanks.
bc: I, for one, think there are things so horrific that I don’t have a problem with capital punishment to express society’s outrage and to prevent reoffense by the same person.
I agree. One of the things I think is just that horrific is a bunch of people getting together and coldbloodedly deciding to kill another human being who poses no threat to them, for no purposes other than vengeance and/or a statistical theory that maybe killing people like that will make other people safer.
So, if the death penalty is imposed, everyone involved in killing that person must die too – it’s just that simple. If you coldbloodedly decide to put another person to death, I say you don’t deserve to live.
The recursive effects of this highly moral policy will end when the last person alive in the US sits themselves down in an electric chair and pulls the switch on themselves.
Incidentally, this will also resolve the problem of getting the troops out of Iraq, whether Obama or Clinton should be President next year, and who killed Roger Rabbit.
“This is not only false, but ludicrous, & shows a complete ignorance of the flaws in econometric regression analysis.”
Nice. I’m quite confident that my mathematical training is superior to yours Katherine even though you did go to a vastly superior school, but you can feel free to make assertions in contradiction of evidence all you want. The case for deterrant is very strong, I’ve linked to numerous peer-reviewed literature on the topic. The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect.
I see that you are now dodging the issues. I asked a few very specific questions. When you ask specific questions, you expect and in some cases purport to demand responses and get abusive if they aren’t quick enough or convincing to you.
I’m most specifically interested in these two question:
Will you be providing a link to the comment or comments outlining the importance of new incarceration techniques that is allegedly so obviously central to your argument as to deserve “I’m appealing to changing facts: it was once practically impossible to incacitate people without executing them. It’s not anymore. Why don’t you actually try dealing with the actual argument for once?”
Are you sticking to the idea that we were unable to effectively incarcerate people until the 1970s, when these death penalty cases came down?
Sebastian: The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect.
So again, Sebastian: as this effect exists exclusively in the US, and has been shown in a concrete way not to exist in other countries, where are the studies examining what makes US homicide different from the homicides in all other countries? Because without that, there’s a humungous hole in the science.
The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect.
Based on the link I provided earlier, I don’t think that’s true. At least one paper argues that the deterrent effect is nothing more than an artifact of analysis, and that the analysis can easily show that the death penalty increases the murder rate.
I think the breadth of counter publications suggest that we’re talking about something more than just the magnitude. Since we’re talking about the expected value of lives saved by the death penalty going negative, I don’t think it is fair to characterize the debate as “quibbling”.
Also, the effect is very much at issue. Several papers are arguing that there is no effect in reality.
Seb, before casting aspersions on Katherine’s statistical abilities, would you mind telling us what your statistical training is? I vaguely recall that you work with statistics…
Yeah, well, I’m married to an economics professor, & he concludes that people who use flawed regressions whose results are contradicted by other studies & change when you change the model, instrument & assumptions, as definitive scientific proof of causation, he concludes that they: (1) are being dishonest (2) don’t know what they’re talking about. So my respect for your approach to statistical analysis just comepletely nosedived, & we’re just at an impasse where I just don’t find you remotely credible anymore.
The factual change is since 1789; I’m making a textual argument & I am countering your argument that various other clauses prove definitively that capital punishment is necessarily constitutional. (In addition to the fact that your argument ignores the text of the 9th amendment). Whether my textual argument is strong enough to outweigh stare decisis concerns is a separate question that I’m not sure of the answer to, as I’ve said maybe 6 times now. Probably not. Probably I wouldn’t have done what Brennan & Marshall did. But I think their opinion is more defensible reading of the text than any # of Scalia opinions interpreting the 8th amendment (e.g. that lovely dissent about how prison guards handcuffing & beating people isn’t cruel & unusual because the 8th amendment only applies to judicial sentences even though the text refers to punishment being “inflicted”; the opinion making fun of the idea that the execution of someone who can factually prove his innocence “shocks the conscience” etc.) The fact that capital punishment has been thought to be constitutional for decades after Alcatraz was built is only relevant to the stare decisis question; it is entirely irrelevant to the textual question.
“The quibbling from the anti-death penalty side is mostly over the magnitude of the effect not the existance of the effect. ”
False. Do you think we’re not going to read people’s links?
“And clearly, given Jes’s post, the science is manifestly not settled.”
Jes’s post does absolutely nothing to call the science into question.
I will go through it line by line.
“Given that there is definite, concrete evidence from other countries that there’s no effect on the homicide rate from banning or inflicting the death penalty”
This is an assertion which is completely unsupported.
“…I would want to know – if there are studies showing that there is such an effect in the US, what makes the US homicide rate so different from other countries?”
Here she is asking if other things might effect the homicide rate. Clearly the answer is yes, and that fact has nothing to do with the studies in question as they studied states as they moved in and out of death penalty regimes offering as much of a control group as is possible.
“The US has (this may not be the most recent figure – the government site is down) a homicide rate of 8.4 per 100 000: in the UK, where we haven’t executed anyone since 1964, it’s 1.97 per 100 000. For Scotland, which has the second-highest homicide rate in Europe, it’s 2.33 per 100,000 – the last person executed in Scotland was hung in 1963.”
See my comment above. This is irrelevant. The premise behind this statement is that the death penalty is the only important factor in play. No-one claims that.
“Since 1998, in the UK, there has been no death penalty permitted for any offense, including high treason and piracy. There has been no sharp rise in the number of homicides as a result (nor was there when the death penalty was abolished for murder in 1963). There has been a steady rise in the homicide rate (this graph adds notes explaining such things as an unusual apparent peak in 2002/2003, when all of Harold Shipman’s 215 confirmed murders were added to the crime statistics for that year) but given the improvement in criminal detection over the same time period (and the rise in drug-related offenses) it’s impossible to correlate this to removal of the death penalty.”
First I’d note that contra the UK, the US homicide rate is down. Second tying the formal abolition of the death penalty for high treason and piracy to 1998 as if that made a statistical difference when I can’t even find the last treason or piracy trial where the death penalty was likely to have been implicated anywhere near that date is raising a complete irrelevancy. The crimminal detection caveat is largely irrelevant as homicide doesn’t usually need to be solved to be noticed. Shipman’s particular case is different as his cases actually weren’t obvious as homicides but the multi-year rise in homicides is not just due to the 2002/2003 spike gained from adding his in to the totals.
All of which has nothing to do with the whether or not the executions deter anyway.
“I confess: I do not follow the arguments in the link you provided. But they do seem to be focussing exclusively on the US, and ignoring the effects of the death penalty’s repeal or imposition in other countries. (Australia is the classic example, where homicide rates remained relatively constant across different states regardless of whether the state had the death penalty, never had the death penalty, or repealed, re-instituted, and repealed the death penalty.”
You seem to be focusing on the nominal existence of the death penalty rather than on actual executions. The de jure existence of the death penalty doesn’t deter if it is never used. The studies don’t make that claim. I’ve skimmed the Australian statistics you linked, and in its discussions I don’t see the claim you make. Could you point it out? (And again I would ask about executions, not mere existence of the death penalty as a purely theoretical punishment). Though even as a theoretical punishment I note a sharp rise in homicides in the 10 years immediately after Australia’s final aboliton, but I can’t eyeball whether or not that has to do with other trends listed (or unlisted).
“So, presuming these studies showing a correlation between the state killing an alleged killer and other killers being deterred is accurate, why is the US different?”
They do. You haven’t shown that it is. You’ve mostly shown that executions haven’t taken place in other countries for quite some time.
We all knew that.
“In a debate at my law school on capital punishment, a police officer spoke about having to inform a family that a released murderer had killed again. Best argument I ever heard in favor of the death penalty (in policy terms, not legally).”
In policy terms, it works almost as well as an argument in favor of allowing the death penalty for parking violations, too.
No one will argue that there’s a surer method for preventing crime than preventive killing of suspected future criminals.
But it’s ultimately a useless point. In the end, if we nuke the entire planet from orbit, we’ll prevent all crime save on the ISS, if we act quickly enough.
It’s whether the trade-offs justify the use of the death penalty that matters, not that the death penalty is ultimately the most efficient means of preventing future crime by any given individual.
Would you agree, bc?
Also, let me second my strong support and enthusiasm for your presence here, and courteous argument and perspective, bc. Please tell all your like-minded conservative friends to come by ObWi, too!
As a general proxy for my opinion in this thread, I pretty much agree with Katherine and Phil at almost all moments, save that I urge them to work on avoiding personal comments, rather than comments on issues of policy, and I urge avoiding assumptions, let alone implications, of bad faith on Sebastian’s or any one’s else’s, part, which are unhelpful, I suggest. I’m, myself, sure that Sebastian is arguing in good faith.
When people don’t share assumptions, it’s the easiest thing in the world to assume or suspect bad faith, and it’s the easiest thing in the world for most of us, god knows completely including me, to become sliding into intemperate remarks and assumptions.
But much as it makes most of feel good to vent, and much as it’s always infinitely easier to caution others, rather than exercise one’s own patience, assumptions of bad faith will never help if one’s goal is any kind of productive conversation.
And I’m very grateful to Sebastian for his patience in responding to so many people who do not share his assumptions.
Thank you, Sebastian.
And thank you, Katherine, for articulating so many of my policy/legal views so more better than I could, and for giving us the benefit of your legal knowledge and understanding, which is, of course, endlessly greater than the few crumbs I’ve gained over the years, myself.
“Based on the link I provided earlier, I don’t think that’s true. At least one paper argues that the deterrent effect is nothing more than an artifact of analysis, and that the analysis can easily show that the death penalty increases the murder rate.”
Which link are you referring to? Death and Deterrence is a law journal article that essentially attacks the ability of Social Science to resolve the issue of deterrance. In that case the evidence katherine requests is just impossible to get. Of course you won’t see that in a peer reviewed economics or Social Science journal.
You link to lots of law review articles, but so far as I can see no peer reviewed articles in any of the social sciences in question.
Bad faith?It depends on what you mean by faith. I think Sebastian believes the things that he is saying but most of them are false. I do not think very highly of his legal analysis, empirical analysis, or ability to comprehend rather than repeating bad parodies of counter-arguments ad infinitum. So, I find him to be arguing in good faith, but I do not find him credible, because he makes too many absurd claims. Equating the death penalty “science” to global warming science is just a laugher.
Sebastian: You’ve mostly shown that executions haven’t taken place in other countries for quite some time.
And that the non-execution of murderers has had no effect on the homicide rate. You forgot that part.
First I’d note that contra the UK, the US homicide rate is down.
“Contra the UK”? In the UK, the homicide rate has in real terms been falling steadily. If you read the notes below the graph I linked to earlier: “There were a total of 765 homicide offences recorded in 2005/06, a decrease of twelve per cent compared to the previous year. The figure of 765 includes 52 homicide victims of the 7 July London bombings.” (In the US homicide statistics, the homicide victims of the 2001 terrorist attack on 9/11 are massaged out of the figures.) I noted that there’s an apparent peak: “Increases in homicides in recent years, and in particular 2002/03, have been influenced by the victims of Harold Shipman, whose deaths will have occurred some years prior to the period in which they were recorded.”
The figures for 2000/2001 include another slight peak: which “includes 58 Chinese nationals who collectively suffocated in a lorry en route to the UK”. Are all the Mexicans who die trying to get into the US illegally included in the US homicide statistics?
Sebastian, I honestly don’t follow this theory that being presented about a correlation between the death penalty and US homicide statistics. For all I grasp about it, it may exist. If so, that’s interesting.
But, as it’s been demonstrated that no such correlation exists for other countries – that the homicide rate is far lower and falling in the UK, where we have not executed anyone for any reason since before I was born – there is a hole in the science if it can’t explain why US homicide is different.
“Yeah, well, I’m married to an economics professor, & he concludes that people who use flawed regressions whose results are contradicted by other studies & change when you change the model, instrument & assumptions, as definitive scientific proof of causation, he concludes that they: (1) are being dishonest (2) don’t know what they’re talking about. So my respect for your approach to statistical analysis just comepletely nosedived, & we’re just at an impasse where I just don’t find you remotely credible anymore.”
And you’re attacking my reasoning?
Please directly answer the following question:
Did you ask him if those specific studies were “flawed regressions whose results are contradicted by other studies” before you decided to smear me or did you just make that decision based on the results?
Argh.
You said: “I’m appealing to changing facts: it was once practically impossible to incacitate people without executing them. It’s not anymore. Why don’t you actually try dealing with the actual argument for once?”
Correct me if I’m wrong, but doesn’t this suggest that at one time we couldn’t effectively incarcerate people but now we can?
You claim that this is so important that it is worth being a jerk about me allegedly not dealing with the ‘actual argument’.
Wholly apart from the fact that you have never made this alleged fact central to your argument before (I don’t even remember it in passing but I suppose it may have appeared as an ancillary point), what in the world are you talking about.
I assume you must be talking about some revolution in incarceration capability that took place in the 1960s or 1970s because that is when the Marshall/Brennan decisions were written. But maybe you think it was earlier. I mentioned Alcatraz only because it well predates the 1960s and it is evidence that we had a very good ability to incarcerate well before that.
Honestly it sounds like it should be a minor issue, but you both elevated it to the center of your argument and simultaneously attacked me about it so I’d like to know:
When was this incarceration revolution and what does it involve?
“Seb, before casting aspersions on Katherine’s statistical abilities, would you mind telling us what your statistical training is? I vaguely recall that you work with statistics…”
I was a math and english double major in college before I decided to go into law. (Which may have been an unfortunate choice, when you work in law you have to deal with lawyers). I dropped the math major at the end of the second year having finished all of the routine statistics and analysis classes.
And I wasn’t casting aspersions on Katherine’s statistical abilities. In response to her groundless attack on mine I was merely trying to note that relative to her I actually do have real training in the area. I wasn’t claiming enough expertise to shut down discussion or trying to appeal to my own authority. Merely noting that IN CONTRAST to her attack I do have training in the area and she really doesn’t.
“Did you ask him if those specific studies were “flawed regressions whose results are contradicted by other studies” before you decided to smear me or did you just make that decision based on the results? ”
We had a heated discussion about this several years ago. The peer reviewed study I specifically recall not finding a deterrent is by Steven Levitt & a couple others. He wasn’t especially a fan of that & still less was he a fan of the instrumental variables one which had a ridiculous model. At the time, he said that the Stanford Law Review article by Donohue and Wolfers was the best of the lot. This isn’t based on that discussion; this is based on general knowledge of how very dependent your regressions are on your assumptions, your model, your data set, etc. & how very wary you should be about claiming that your regression “scientifically proves” something when if you tinkered with your STATA programs a bit your result would change. I am not challenging those particular studies, I am saying that no one who knows anything–even secondhand! I’m no expert–about the way economists analyze things would claim them to be definitive scientific proof. Compare your characterization to Gary Becker’s.
The argument you were ignoring is in para. 5-6 of the post above. It specifically refers to changes between 1789 & the present. Yes, I am making a claim that there was a factual change re: our ability to incarcerate between 1789 & the 1970s. This is one of several factors that I think undermines your textual arguments against Furman.
“And that the non-execution of murderers has had no effect on the homicide rate. You forgot that part.”
Jesurgislac, I didn’t forget that part. That is the part that is completely undemonstrated.
You are citing the lower murder rate in European countries. You’re fine so far. But the magnitude of that difference outstrips the alleged difference of the death penalty effect. Which suggests that other factors are in play. You then say things like “And that the non-execution of murderers has had no effect on the homicide rate” which you have not demonstrated. And the links you have cited don’t demonstrate (or even suggest) that either.
Now it may be (as katherine seems to suggest though I’m not completely sure) that social science techniques aren’t really good enough to pick up that kind of thing. I’m actually fairly open to that argument as I think many modern statistical methods suck for the purposes we try to use them.
But that gets her nowhere in the constitutional argument because in that case the political community gets to decide such things. Legislatures are allowed to make policy decisions before all the evidence is in–hell if you don’t let them, you can’t ever get the evidence.
“Yes, I am making a claim that there was a factual change re: our ability to incarcerate between 1789 & the 1970s.”
What was it?
When did it occur (approximately)?
I’m not trying to be rude. I have no idea why you believe that we had trobule incarcerating people in the 1800s. My understanding is that the main problem at the time was not that we had trouble keeping them, but that being imprisoned regularly led to a swift death due to disease (which was one of the reasons behind the requirement for a speedy trial). Again I raised Leavenworth and Alcatraz solely to show that we did have the ability to effectively incarcerate well before the 1960s.
“Compare your characterization to Gary Becker’s.”
I presume you mean this: “I can understand that some people are skeptical about the evidence, although I believe they are wrong both on the evidence and on the common sense of the issue. It is very unpleasant to take someone’s life, even a murderer’s life, but sometimes highly unpleasant actions are necessary to deter even worse behavior that takes the lives of innocent victims.”
This was in 2005, before 4 of the more recent (and all showing stronger significance than the one he relies on) studies. So in 2005 he is confident enough to say that the he understands *that* people are skeptical but believes them to be wrong on the evidence. So he is saying that the evidence is clear, I took what you say is a step too far in saying that the matter is closed.
Ok. But you’re still arguing against clear evidence.
So you win a debate point about me arguing too strongly, and then what? You are still left arguing against the weight of the evidence that capital punishment deters murder.
And in the interests of toning it down please read ‘clear’ as ‘convincing’ or some other such adjective.
Jesurgislac, I didn’t forget that part. That is the part that is completely undemonstrated.
No, Sebastian. That is the part that is completely demonstrated. Abolishing the death penalty in the UK had no effect on the homicide rate. There is a mass of evidence, in countries round the world, that abolishing the death penalty does not affect the homicide rate.
You are asserting that these studies show that in the US, the abolition or imposition of the death penalty does affect the homicide rate. So, why is the US unique in this respect? I follow that you agree with these studies that show an effect in the US: but you are arguing dishonestly if you claim that any such effect has been shown in any other country.
“No, Sebastian. That is the part that is completely demonstrated. Abolishing the death penalty in the UK had no effect on the homicide rate. There is a mass of evidence, in countries round the world, that abolishing the death penalty does not affect the homicide rate.”
Again for statistical purposes you need to make a distinction between formal abolition and declining executions. The claim is that executions deter murders you seem to be arguing against a claim that having the death penalty on the books deters (or doesn’t).
And it may very well be that in the UK there was no effect. I certainly don’t have the studies. But I haven’t seen it, and the things you link which you purport to support that don’t actually do so. I’m open to the evidence, and it would be fascinating if the the UK was different from the US in that regard.
You then say things like “And that the non-execution of murderers has had no effect on the homicide rate” which you have not demonstrated.
Sure I have. If not-executing killers had an effect on the homicide rate, as you allege, as countries abolished the death penalty, we would see evidence of that effect. Country after country round the world has abolished the death penalty, and the effect you allege exists is absent. I have pointed you at figures for the UK and for Australia, but feel free to go dig up the homicide figures for other countries which abolished the death penalty and see if you can try to find evidence of your alleged effect.
It would probably be more productive of your time to discuss why you think the effect exists in the US, if you’re convinced that it does, even though it’s been demonstrated that it works nowhere else.
I find that Stanford article very persuasive, to the point where it undermines the others. It is also clearly written & explains the statistical methodologies they use where they are completely opaque & jargon ridden & yet also seem extremely slapdash. So I don’t agree with Becker. That said: there is a general conclusion that if you’re talking about a “deterrence per execution” effect rather than a “deterrence by keeping it on the books” effect, the data & methods just aren’t good enough to prove anything. I will stick with saying: no convincing evidence of deterrence, but to the extent that it’s on the burden of people arguing it’s cruel & unusual to affirmatively prove it’s NOT a deterrent, that’s impossible too. Of course, I don’t think that’s required, because I think the assumption that a gang member is sitting there calculating county sentencing statistics given how very much higher his risk of death from other factors is plausible at all.
Keep in mind: the peer reviewed v. not distinction really is about economics professors v. law professors. The best law journals in the country aren’t peer reviewed; some fairly lame econ journals are. In general I think the peer review approach is better but you’re not comparing the good studies v. the dross in a given field–you’re comparing economists’ studies to criminologists’ & law professors. You might argue that economists are better at statistical analysis. But, it’s a little complicated. Economics papers are not evaluated & placed based on how sound their policy conclusions are; a lot of it is about how innovative people find their theories & their methods. So, for instance, you don’t necessarily get as much credit for using a large data set with a lot of observations as for a neat little model that is based on an extremely limited data set, even if the former is more likely to yield an accurate result. There’s also a higher premium on an article that says: look, this regression either proves/disproves my hypothesis, than on a very meticulous, scrupulously honest article that says: “I tried this, this, and this and the data is just too much of a mess or too limited to draw any firm conclusion,” even if the latter is actually more accurate. Economists aren’t criminal policy analysts; that is not their primary concern. So they may have snazzier more complex math, but they may be asking the wrong questions & controlling for the wrong things if they don’t know the field. (All this is leaving outside the possibility of ideological motivation, which of course one always suspects with lousy studies that confidently report “Illinois’ moratorium killed 150 people!” based not on 1. an absolute change in Illinois’ actual homicide rate, or 2. a change in Illinois actual homicide rate relative to the rest of the country. but 3. a change in the rate of change of Illinois homicide rate relative to the rest of the country. Various other questionable assumptions too.
I’m skeptical of Levitt’s abortion study, too, btw. Obviously, I think economics is valuable, but there are very real limits–it’s predictive power in the real world is not tremendous weak even in areas where the econ. literature is about 100x better developed than this one–& it’s highly, highly susceptible to being reported in a way that does more to mislead people than anything else.
OK, here’s the thing about the death penalty: It may, very well, have a deterrent effect. I’ll even stipulate for argument that it’s even at the high end of the range Sebastian alleges, that each execution deters 18 murders.
You know what? I don’t care. I honestly don’t.
We’ve had more than 200 years to get the application of capital punishment right, and we can’t seem to do it. No matter what execution methods we use, no matter whether we separate the trial and penalty phases, no matter what kind of evidence we allow or exclude, we just can’t get it right.
We still, after two centuries plus, cannot ensure that the death penalty as applied is done fairly and with the greatest rigor. We have a system in which minorities generally and black men especially are far more likely to receive death sentences than white men for the same crimes, when in a fair system the chances should be equally good (or equally poor) no matter what your skin color.
We have a system where the fastest way to get yourself a death sentence is to kill a white woman, when in a fair system the chances would be the same no matter what the gender and skin color of your victim.
We have a system in which we manage to keep convicting innocent people. And the only ones we know about for certain are the ones lucky enough to get someone like the Innocence Project to take on their cases, who have potentially exculpatory DNA evidence available, and who can get the courts to hear their cases. That’s a vanishingly small proportion of death row inmates, and I bet there’s a lot more innocents we haven’t found who don’t meet those criteria.
We have a system in which doctors, who take an oath to save lives, are asked to inject deadly chemicals into the veins of prisoners, violating any coherent sense of ethics.
Given all that, it’s my feeling that, on Equal Protection grounds, if we haven’t gotten it right by now, we ain’t ever gonna. It may be unreasonable, but executing people is one of those things where, if we’re going to give the state that power — and make no mistake, it is a grant to the state by the people — that I insist, absolutely insist, on an error rate of exactly zero. And if we can’t achieve that, we don’t get to do it at all.
So any deterrent effect is irrelevant frippery. This is not a topic on which society ought to tolerate systematic institutional unfairness, let alone egregious mistakes.
And that’s all I have to say about that.
Katherine,
While I oppose the death penalty, I don’t think your argument about modern methods of incapacitation or incarceration being able to prevent subsequent murders works, at least in practice. We have news reports of prisoners murdering prisoners and guards and even arranging murders outside prison via criminal enterprises. I’m not sure we really have perfected incarceration to eliminate all threats from an individual or member of a group.
Seb,
I don’t think that majority support for the death penalty necessarily means the majority wouldn’t consider it cruel and unusual. At least some of the people I talk to who support the death penalty think that it should be painful, slow, cruel and administered by the victims family.
Gary: Would you agree, bc?
I don’t agree that my point was worthless (though anecdotal), nor do I agree that there is any crime on the ISS. And you assume I have conservative friends!
I do agree that the propriety of capital punishment is determined by the trade-offs you mention. That is why it is a policy question that is best handled by a legislature, not a court.
The disagreement over statistics is really a case in point. Would you want SCOTUS debating statistics unless each was married to an economics, statistics, or mathematics professor? Leave it to the legislature.
I agree. One of the things I think is just that horrific is a bunch of people getting together and coldbloodedly deciding to kill another human being who poses no threat to them, for no purposes other than vengeance and/or a statistical theory that maybe killing people like that will make other people safer.
I think many would take issue with the “pose no threat to them” part. I sure do. And your description, if it’s intended to describe supporters of capital punishment, misses the mark. It looks like you are making a “moral equivalency” argument. I don’t know how you can equate capital punishment of a murderer with the act of murder itself.
If it’s just doing away with all killing, are you asking to do away with self-defense? What about police shooting a would-be murderer? How is the state condoning those killings different that capital punishment? Is the distinction all that great? Or are those not justified killings in your point of view?
Look, I appreciate the position that says “never kill.” It shows respect and dignity towards human life. But don’t assume that supporters of capital punishment do so because they DON’T value human life. The opposite is often true. The moral condemnation of some acts justifies the taking of life in the opinion of many supporters of the death penalty.
As per JayS’s point I’m not so sure that incacertaion prevents murders –
Studies by the nonprofit Stop Prisoner Rape assert that 1 in 5 male prisoners is raped while in custody, and some estimates say one in four prisoners is HIV positive. so that gives us a lot of people essentially being murdered by murderers in jail let alone all the people murdered in other ways.
> We have a system where the fastest way to get yourself a death sentence is to kill a white woman
the key issue then is juries – you need to get rid of them. No jury will ever produce an unbiased decision – they are pretty much set up to be biased.
so that gives us a lot of people essentially being murdered by murderers in jail let alone all the people murdered in other ways.
GNZ, the vast majority of people in prison are not murderers, which suggests to me that even if we executed all murderers, the rape rate in prisons would not decrease significantly. There were 17,000 murders committed last year and there are very roughly 2 million people in prison – the gap here is just too large to believe that murderers are more than a drop in the bucket. Of course, prison rape is a real problem, but there’s no point in pretending that its primarily the fault of murderers.
the key issue then is juries – you need to get rid of them. No jury will ever produce an unbiased decision – they are pretty much set up to be biased.
Have you ever met an unbiased judge? Or an unbiased district attorney? Or an unbiased taxpayer base that is willing to fund indigent legal defense at the same rate they fund prosecutors? Also, since judges are expected to overturn problematic judgments made by juries, if juries are the problem, shouldn’t we see judges tossing out jury judgments at much higher rates in these cases than in other types of cases?
You may very well be right, but (and I’m sorry for being so repetitive) I can’t accept that conclusion without seeing some evidence that juries play a larger role in this problem than other aspects of the criminal justice system.
“We have a system where the fastest way to get yourself a death sentence is to kill a white woman”
I’m sure every regular but me knows this to be true, but please humor me with a link?
> even if we executed all murderers, the rape rate in prisons would not decrease significantly.
death penalty is rarely an automatic reaction for murder, and it certainly isn’t in the US system and yes it wouldn’t solve any problems (problems are never that easy to solve).
All it points out is that certain antisocial people are an issue even in prison, possibly a very significant issue.
If I was a politician I’d be reluctant to go with the death penalty option because it would be like putting blood on my hands – and yet, with some people, I’m not so sure sending people to prison, or letting murderers remain free leaves them any cleaner just because the link of causation to the harm they cause is ever so slightly more distant.
> Have you ever met an unbiased judge?
you could establish systems to deal with that, consequences for incorrect rulings etc – but the jury system makes that almost impossible – you can’t create very effective reward structures or training for juries to check their own biases.
I also note there appear to be a huge number of incorrect rulings by juries for example where it is later proven the convicted person must be innocent via DNA etc.
> if juries are the problem, shouldn’t we see judges tossing out jury judgments at much higher rates
the judges job is to throw out based on procedural errors not some unstated bias against black men (etc), or to correct judgements they think are wrong. That leaves a very wide range within which they can apply bias.
I think the judge system is superior but much more importantly it could be made to be very effective with some effort – while the jury system is almost impossible to improve.
bc: I think many would take issue with the “pose no threat to them” part. I sure do.
Why? We’re talking about someone who has been convicted of murder. They’re in jail. In a properly conducted prison system, that means this person cannot post a threat to anyone outside jail, ought not to be released on parole until it is certain that they will pose no threat to anyone when they are free, and proper supervision and due care should ensure they pose no threat to anyone inside jail.
Killing a convicted murderer is not done to terminate a threat in any country with an adequate prison system. If the US’s prison system is inadequate, then perhaps Americans should look to devoting more resources to it, rather than advocating killing people sentenced to it.
(That aside, there is the plain fact that in any country with an imperfect justice system – and I wouldn’t trust any country that claimed to have a perfect justice system – execution runs the risk of killing another innocent person, and ensuring that the real murderer goes free and uninvestigated.)
But don’t assume that supporters of capital punishment do so because they DON’T value human life. The opposite is often true.
If so, that’s because supporters of killing people have not managed to think through how they reconcile both values – wanting to kill people for vengeance, or in revulsion for what the court says they’ve done: and claiming to feel an inherent value in human life. Respect for human life, clearly thought through, must require opposition to the state killing people via the court system. If nothing else, because a thoughtful person must acknowledge that if the justice system is allowed to kill people, sometimes it will kill the wrong people.
I have a slight objection to Sebastian’s claim that “a case of murder has not to be solved to be noticed” in connection with progress in forensic science. I can’t provide a link but I heard/read quite disturbing estimates about the dark figure for the crime of “killing a human being”. This is partly due to neglicence/incompetence of those writing the death certificates (e.g. cases were the undertaker finds the dead to have been stabbed while the certificate says “natural causes”) and the “no suspicion, no enquiry” principle. There are reputable forensic experts that believe that for example murder by poison is detected only in a minority of cases (some cases of multiple black widows seem to corroborate that) and only, if the murderer makes a serious mistake (or in serial cases statistics come to play).
Hmmmmm, maybe non-US murderers are simply more sophisticated and the actual rate is similar. Is posion covered by the 2nd amendment? 😉
the key issue then is juries – you need to get rid of them. No jury will ever produce an unbiased decision – they are pretty much set up to be biased.
Um, no, the key issue is that district attorneys and prosecutors are more likely to seek the death penalty in the first place against certain types of offenders and for certain types of victims. If the prosecution isn’t seeking execution, neither a judge nor a jury can deliver it as a punishment.
Slarti, I’ll dig up the links later today. It will take me some Googling since I don’t keep them handy anywhere, but if you’re inclined you might be able to find them on your own as well. I do know from memory that being black makes it between 2.5 and 4 times more likely that prosecutors will seek a death sentence. I don’t recall from memory the stats based on type of victim.
I should have added, the best way for a murderer to avoid capital punishment is to be a white woman when, again, in a fair system it wouldn’t matter at all. As a percentage of their representation among all murderers, women are almost never sentenced to be executed.
I tried, but gave up. You know how sometimes Google gives you the haystack and the needle? This was one of those times.
The question of relative populations of blacks as compared to whites on death row I’ll take as a given, but that wasn’t what you said. And I asked, just to be clear, not because I’m disputing you, but because if that is indeed a fact, it’d be good to know for certain. And contrariwise, too.
Either way, thanks for responding.
Yeah, it’s infuriatingly hard to find this stuff all in one place, especially if I don’t bookmark it later. (More fool me, I guess.) I’m still looking for the stats that show death penalty rates by race and victim of gender, but I did find this that tells at least part of the story:
All emphases mine. ISTR that this pattern holds true nationwide, not just in Georgia, which this particular study was limited to, and will deliver those stats as I find them.
Is this data controlled for the racial composition of the jury pool? I would assume that most black on black murders occur in majority black jurisdictions, and most white on white murders in majority white jurisdictions; Perhaps prosecutors are responding to a disinclination of black jurors to impose the death penalty?
Jesur,
I’m not sure that putting an innocent person in jail for the rest of their life (to be raped and whatever else you allow to go on in there) is really that much better than killing them. Of course your right the prisons should be made better – but one has to base one’s current policy on the current situation because the combination of the two is the result you will get.
> the key issue is that district attorneys and prosecutors are more likely to seek the death penalty.
it is easy enough to put incentives in place (if they are not already) for the prosecution to go for the maximum penalty. But if they know the jury wont convict because of the demographics of the people involved then they are wasting their time to go for the death penalty. A mistake like using juries causes problems all over the justice chain.
GNZ: I’m not sure that putting an innocent person in jail for the rest of their life (to be raped and whatever else you allow to go on in there) is really that much better than killing them.
If an innocent person has been jailed for a crime they did not commit, so long as they are alive, they have the chance of justice. Kill them, and they no longer do.
I don’t think it ought to be up to you, or anyone, to decide that it’s better to kill an innocent person than to let them continue to strive for justice.
Is this data controlled for the racial composition of the jury pool?
Why don’t you check it out yourself, Brett.
I myself would be surprised if someone who thought of controlling for lots of other things, and who was studying racial disparities, hadn’t thought of that. Very surprised.
it is easy enough to put incentives in place (if they are not already) for the prosecution to go for the maximum penalty.
And yet everything we’ve tried over the last two centuries in capital punishment jurisprudence hasn’t erased these inequalities.
But if they know the jury wont convict because of the demographics of the people involved then they are wasting their time to go for the death penalty.
You know, prosecutors regularly strike people who are opposed to the death penalty during voir dire. They don’t even have to ask them any other questions. And they have to decide whether to seek death or not before the jury is even empaneled. So, having decided to seek the death penalty, how likely do you think it is that the problem really lies in the demographics of the jury?
A mistake like using juries causes problems all over the justice chain.
Damn that pesky Constitution!
> If an innocent person has been jailed for a crime they did not commit, so long as they are alive, they have the chance of justice.
No they can never get justice – you can’t give them back 10 or 20 or more years of their life.
You cant ‘un-rape’ someone or ‘un-beat them up’ all you can do is hurt some other person in exchange or throw some money at them, but it would always be rather like being given insurance money after your child got killed.
worse yet if that leaves them in a state of wishing they were dead.
>I don’t think it ought to be up to you, or anyone, to decide that it’s better to kill an innocent person.
The problem is that inaction is also a decision.
So take two examples
1) if a justice system decided not to do something it knows would protect innocent people or
2) if a doctor decided not to provide treatment to a critically ill patient.
that it is inaction (with an associated duty) as opposed to action doesn’t make it all that much better to me.
No they can never get justice – you can’t give them back 10 or 20 or more years of their life.
No, but they can be released and their innocence publicly confirmed. I don’t see that it’s up to anyone but that person to decide which.
worse yet if that leaves them in a state of wishing they were dead.
If someone in prison decides they would rather be dead than wait any longer for justice, I would guess that they can find a means of killing themselves. It is very hard even in Guantanamo Bay to stop a person who is determined to die.
Concern for prisoners’ welfare is admirable. Concern for prisoners’ welfare that gets as far as deciding it’s better that innocent prisoners should be killed rather than have to suffer the horrors of a US prison, is pretty much pointless.
The problem is that inaction is also a decision.
Yes. The inaction of the American public with regard to the horrible conditions many prisoners in the US prison system suffer, is a decision.
1) if a justice system decided not to do something it knows would protect innocent people or
2) if a doctor decided not to provide treatment to a critically ill patient.
I agree. The US justice system (considered for the sake of shorthand as an entity in itself) has decided not to do something it knows would protect innocent people:
– Not to improve the conditions of the US prison system
– Not to work for the abolition of the death penalty
This is an inaction, a failure to do something that it knows would protect innocent people, and yes, I do see it as exactly as bad as a doctor refusing to treat a critically ill patient.
As noted above: killing prisoners who are already in prison has nothing to do with “protecting the innocent”.
I am just that there is something in the dilemma, moral issues to weigh up and so forth. That it is not quite as simple as “lets not kill people”.
As to suicide – most people who attempt suicide fail and are well past wanting to die by the time they actually try to die (yes people are irrational). still if your willing to facilitate their suicide in a ‘death with dignity’ sort of a way then you have a solution of sorts.
> Yes. The inaction of the American public with regard to the horrible conditions many prisoners in the US prison system suffer, is a decision.
yes indeed. I think it needs to be fixed as does your system that convicts too many innocent people – hence my suggestion you get rid of juries amongst a wide range of other things.
> Not to work for the abolition of the death penalty
yes that is an inaction too, and depending on ones position in this debate may amount to a sort of murder by inaction – of course thats yet another step removed.
> killing prisoners who are already in prison has nothing to do with “protecting the innocent”.
To continue with the effort to help with understanding – a lot of people who support it or do it think its a deterant, and think it frees up resources for other things and protects guards from exposure to these people etc even if they happen to be mistaken.
As to the wider effect on innocent people I guess the negatives on the balance sheet have to come from the fact that your prisoner might be innocent (because as a death penalty supporter would say “a dead criminal harms no-one”)- which comes back to how inferior the justice system is.
What if one killed only those with 100% evidence that they are guilty? I don’t think that changes your mind – so I guess innocent is not really on your radar either.
GNZ: As to suicide – most people who attempt suicide fail and are well past wanting to die by the time they actually try to die (yes people are irrational). still if your willing to facilitate their suicide in a ‘death with dignity’ sort of a way then you have a solution of sorts.
I’m dubious about facilitated suicide for any reason other than imminent death from natural causes – ie, if you have cancer and are going to die painfully in six months and are opting to die painlessly now.
I oppose capital punishment, for a whole bunch of reasons, but I suppose in theory if people who were pro capital punishment were willing to accept that people condemned to die should be given the option of a painless facilitated suicide, that would resolve at least the moral issue of the state employing people to kill people. If someone who had been condemned to death were not willing to take the overdose themselves, well, then they’re reprieved.
If you recall (read upthread) you had asserted that it was better for an innocent person condemned to life imprisonment to die, so it was OK for the state to execute an innocent person. I pointed out that if that were so, that person has the option of killing themselves – because even in Guantanamo Bay, where prisoners are held securely beyond justice, hope, or freedom, a few have succeeded in escaping via suicide.
Your claim that it’s juries that are responsible for convicting so many innocent people won’t hold up, I believe. To prove it, you would need to show that countries that don’t permit trial by jury have a higher rate of accurate convictions than countries that do. Can you show this?
– a lot of people who support it or do it think its a deterant,
Yes, but they’re wrong, demonstrably so. Killing people just because some ignorant people think that killing is a “deterrent” is about as wrong as allowing human sacrifice for religious purposes. Indeed, it’s about the same thing: it’s killing people to indulge a superstitious belief.
and think it frees up resources for other things
So it’s okay to kill people to save money?
and protects guards from exposure to these people etc
Ah, now there’s a point. Of course, killing people requires the state to pay some people to have the job of killing people, and that I think is something that people deserve to be protected from. The state shouldn’t hire people to have the job of killing people in cold blood any more than the state should hire people for the job of torture or rape.
If there is interest in helping prison guards, a better system would be to improve US prisons and pay and train guards better.
What if one killed only those with 100% evidence that they are guilty?
I don’t trust anyone who claims their justice system is perfect, because no justice system is perfect. It’s not within the realms of human possibility. So a person who claims they kill only people who are 100% definitely guilty, is merely saying that they aren’t even willing to examine the possibility that they are, in fact, killing innocent people. There is the added factor that (again, noted above) that the death penalty is applied unfairly – that two people, proved guilty of equally heinous crimes, may live or die depending on the ethnicity of the person they killed.
> better for an innocent person condemned to life imprisonment to die.
Potentially it would be so of course not by definition – some people even like prison – strangely…
> To prove it, you would need to show that countries that don’t permit trial by jury have a higher rate of accurate convictions than countries that do.
there are complicating factors at play here not the lest of which being, countries have factors that are different besides the system of justice (for example wealth) and if we knew all the false convictions across all countries then we wouldn’t have a problem.
However I’m surprised by why you would think juries would have less false convictions. Judges can be biased but so too can juries and judges can be incentivised not to make errors. Judges can be trained or become experienced at detracting liers, judges don’t need to be protected form evidence like lie detector results because they might irrationally overestimate it and the list goes on. Judges would have to be very much more biased than juries to balance out those factors – and that is ignoring the potential to improve the system.
All juries seem to protect you from is some sort of potential for a class war or some small subset of bias that relates to the demographics of judges (which is an issue of course – but one that should be possible to resolve without lowering the system to the level of a jury if it is indeed significant)
> Yes, but they’re wrong, demonstrably so.
Your claim was that it was not “about” protecting the victim. I’m just saying in the interest of understanding the other side, that they want to protect victims – even if they may be factually wrong. I expect as a matter of fact that the death penalty is a disincentive above life in prison – but not much more (because criminals tend to be more concerned with catch rate than punishment) and much less in the US than in other countries like china as a result of how it is done.
I think you are putting forward my position here which is the good or bad of the death penalty is a matter of making a logical conclusion based on facts – as opposed to a moral absolute. And my conclusion from that is “I would consider it based on all the evidence”. The fairly limited effectiveness as a deterant is one thing to consider.
> I don’t trust anyone who claims their justice system is perfect
It was a hypothetical – but I was thinking of those cases where there is video evidence DNA evidence and admission of guilt from the murderer. Still not OK with it?
> two people, proved guilty of equally heinous crimes, may live or die depending on the ethnicity of the person they killed.
indeed – jury…. I could get a list of judges and look at their odds of convicting white and black men (and the evidence, and the rate of being overturned on appeal) and hurt those that convicted too many black men – but a jury? you can’t do anything.
Assisted suicide for inmates? Why does that conjure up images of sadistic guards trying to “persuade” prisoners to take that option, right-wingers beating the drum that prisoners have a “moral duty” to save the taxpayer money etc.?
Bad idea!
Hartmut: Assisted suicide for inmates? Why does that conjure up images of sadistic guards trying to “persuade” prisoners to take that option, right-wingers beating the drum that prisoners have a “moral duty” to save the taxpayer money etc.?
Bad idea!
Well, yeah.
GNZ: However I’m surprised by why you would think juries would have less false convictions.
The notion that the introduction of a jury of your peers will somehow make it more likely that you will be falsely convicted goes against centuries of practical jurisprudence: but it does correspond strongly to the conservative belief that the 12-15 members of the jury, ordinary people weighing the evidence, are just ignorant asses who ought not to be allowed in court and the only proper person to decide if you are guilty or innocent is a judge.
I take your point that there exist instances where there is 100% certainty of guilt. But I’d be against introducing the principle that it’s okay to kill people when you have 100% certainty that they murdered someone, just as I am against introducing the principle that it’s okay to torture someone when you have 100% certainty that they’re a terrorist.
For a whole bunch of the same reasons: one of which is, if you allow the principle of killing by the state, it tends to spread. You may intend that the state shall only kill when there’s 100% certainty, but what actual practice has shown is that, if the state has the right to kill, the right to kill will spread… and yes, the state will then kill innocent people.
In Germany there is an option for a mixture of jury and judge based jurisduction, called the Schöffengericht. Citizens can be called up to do Schöffen duty similar to jury duty in states with the Anglosaxon system. They then act as co-judges to the professional ones and can (though they rarely do) outvote them. This is limited to the lower courts, the higher are professionals only.
I think the main difference between the “continental” and “anglosaxon” way is that their is no or not much profit in the outcome here, while “winning” is the main thing at least in the US. Prosecutors or judges with open political ambition are not popular here and to boast to be skilled enough to “win” indpendent of the merit of the case would put a damper on your career. If a prosecutor is seen as a loser because he could not persuade the jury to hang an innocent then the system seems slightly flawed. A pure judge-based system is of course no panacea and not free from external influences (Judges in Northern Germany tend to be much more liberal than their Southern counterparts and perverion of the course of justice does happen occasionally).
We can nip part of this back-and-forth between Jes and GNZ in the bud right quick. (A back-and-forth in which I note I almost wholly support Jes’s argument and position if not her reasoning.)
GNZ, Here is a link to The Innocence Project. here is a list of the 215 people they’ve gotten exonerated and released from prison on the basis of DNA evidence.
If you can find me one — ONE — who says he’d rather be dead today than out of prison and vindicated, I will donate $100 to the charity of your choice. If you can find one who says that he would rather have died at some point along his prison stay than fight for his life and freedom, I’ll give $25.
If you cannot, you will donate $100 to the Innocence Project.
You game? Because if not, I think we can both agree that you’re pretty much talking out of your butt, here.
In the UK, defense lawyers are the ones who will get kudos and a good name for winning a case, or at least for presenting as good a defense as possible. A murder case would certainly get a good defense lawyer – but then: homicide is far less common in the UK.
Jes, I think we could solve a lot of my country’s justice system problems if public defenders’ offices around the nation were at least as well-funded as prosecutors’ offices are. Which, really, they should be, particularly given that the Constitution outlines a whole lot of rights for criminal defendants and none for prosecutors. Correcting that imbalance alone would be an enormous paradigm shift. But selling it in this culture would be practically impossible.
” A mistake like using juries causes problems all over the justice chain.
Damn that pesky Constitution!”
Appealing to the Constitution? Perhaps the 8th amendment (or maybe equal protection) has expanded enough to invalidate the right to jury trial. In fact I’m absolutely certain that modern equal protection arguments could easily be argued in that direction–it can be demonstrably proven that juries have not offered equal outcomes for various citizens on all sorts of analytic dimensions (race, class, gender) with at least some of those being specially protected under current equal protection jurisprudence (race, gender). Just use all the special equal protection buzz phrases: jury trials have tended to enforce prejudice against discrete and insular minorities (check), it has tended to seriously curtail the operation of those political processes ordinarily to be relied upon to protect minorities (check), and which may call for for a correspondingly more searching judicial inquiry (clearly check, a judge would be writing the opinion). Then throw in the changing social mores concept from the 8th amendment cases (ambiguous phrases can’t be tied to their historical applications and understandings) and we could come with a brief that follows all the liberal jurisprudence forms and catch phrases to show that the Constitution forbids jury trials.
And I haven’t even started talking about the due process clause.
Changing societal mores means that Constitution forbids jury trials anyone?
Also please note that the argument does not depend on disparate impact, it can merely have evidentiary value in this case, the impact itself doesn’t need to be determinative.
Well, it’s a deterrent to additional jailhouse murders and assaults. If you’re dead, you can’t kill your cellmate, or another prisoner in the exercise yard, or beat in a guard’s brain with a hammer.
Some killers deserve to die. Serial killers, spree-murderers, child-rapist-murderers, Democratic Party Chairmen (ok – I’ll settle for public floggings). What practical purpose does it serve society to keep those kinds of deviate dickheads alive? It’s simply moral triage of the worst kind to incarcerate them for life at public expense as inhabitants of moral-zoos where we can point at each cage and say: see how civilized we are, even scumbags like Charles Manson, Gary Ridgway (murdered 48 young runaways and prostitutes), Charles Cullen (the male nurse who ‘disposed’ of 29 ill patients under his care in New Jersey and Pennsylvania) are fed and clothed and barbered and have access to better health care then the multitudes of uninsured whose taxes help pay for every breath the privileged incarcerated killers take.
In California it costs about 200-grand a year to incarcerate a prisoner. It makes more moral sense to snuff out sociopathic killers and use the money saved to feed the hungry and house the homeless.
We can solve the doctor-ethics issue by turning over the job of performing lethal injections to ‘trustee’ prisoners (with the large dug-user population now incarcerated, that won’t be a problem). Plus, it will save us a few bucks in taxpayer money (those doctors get a nice per-diem payout on execution day, and a ‘penny save’ is a penny earned).
Why waste money on those chemicals? One could simply not provide the person with food, water or air, dependent on the time interval morally acceptable. That would even save some extra money. Throwing them off the roof would be inadvisable beacuse of the necessary cleaning costs. Other money saving plans: Let them dig their own graves and then beat each other to death. The last one has to fill up the other graves and then dig himself in or has to wait for the next executee.
Any more nice ideas?
I feel the urge to violate the posting rules by using vice-presidential language.
What practical purpose does it serve society to keep those kinds of deviate dickheads alive?
Good luck setting up a system where the “worst of the worst” alone are executed and executed in a non-arbitrary fashion.
This is useful, since — I know the quote being responded to invited this sort of thing — quite often this “extreme case scenario” is an argument for some policy (say torture or censorship) that simply won’t be cabined in real life.
Likewise, some do think “dickheads” have some right to life, especially when they commit their crimes say in their 20s and might have some productive role to play or something sometime in the future. This often is based on moral and/or religious based sentiments, though the abolitionist side is at times smeared as atheistic amoralist sorts.
The part about letting the inmates run the asylum, so to speak, tends to cause problems, besides being sorta illegal. Sherry Colb had an interesting essay about the lethal injection case last week over at Findlaw though.
joe: “Likewise, some do think “dickheads” have some right to life, especially when they commit their crimes say in their 20s and might have some productive role to play or something sometime in the future.”
You mean something like the “Dirty-Dozen” reduex? Where we recruit a hardened group of sadistic killers from death-row and drop them into Al Queda territory in Pakistan, and let them do their stuff?
Aside from that, how productive a role in society can you reasonably expect from murderers sentenced to life terms? That they’ll tuck in their bed sheets and promise to abstain from raping their cell-mates doesn’t seem like much of a benefit for $200,000 a year to guard society from a 20 year old spree-killer who lives to the age of 90.
Just my cynical 2-cents worth, but it seems a hundred times more ‘humane’ to execute him, and use that money to buy teddy-bears and chocolate bars for children victimized by child-abusers.
Hartmut: Any more nice ideas?
It’s Jay Jerome, I’m sure he has a a whole stinking barrelful.
Hartmut: “Throwing them off the roof would be inadvisable beacuse of the necessary cleaning costs.”
Not that expensive, Hartmut — just put down a plastic drop cloth first.
Better, we could turn it into a reality TV show: “American Execution!” Now there’s a good idea! Competing teams could be assigned to toss multiple convicted murderers as far off a roof as possible — with points given for length and arc of distance thrown.
Each week, the Team would go to a different prison, and there’d be lots of back-story biographical info on the participants, on the killer, and on his victims — and if the show’s a success the prisons and the families of the murder victims would share in the advertising revenues and residuals.
This sounds viable, Hartmut. I’ll pitch it to Simon Fuller next week. And if there’s any interest, We can share executive co-producing credit.
Keep your fingers crossed…
Jesurgislac: “It’s Jay Jerome, I’m sure he has a a whole stinking barrelful.”
Now, now… be a good little ‘whatever’ and don’t forget the ‘courtesy’ rule…
hi publius,
I’d like to hear how in the absence of Theory, you’d think about judicial accountability, especially toward those parties who in past have lost.
Jay, the posting rules permit me to say that I think the ideas you have posted here stink.
Late, I know, but the thread didn’t really address it per se …
The “sly” bit about Orin Kerr. A comment or two over at Balkinization dealt with this, but this perhaps gives him a bit more credit than he deserves. “Snidely” seems better.
I am unsure what exactly about Balkin’s theory opens up it to the Yoo memo jab per se. I admit I find Balkin’s theorizing on his theory here far from fascinating — just yet another take on “originalism” or whatever that at some point seems like angels dancing on pins.
[does provide a chance for intellect sorts to talk past each other, usually saying the same thing a lot (oh, another dig at Roe! well Publius won’t disagree there!) … there are worse ways to spend time, but honestly, it is a bit like intellectual crack after a while]
But, the fact something is “lawyerly” is not exactly enough to meet Balkin’s guidelines. Balkin requires good legal reasoning too. So, what exactly about Balkin’s theories per se (the bad reasoning can twist any number of interpretative paths its way) warrants the gib?
Thus, OK’s comment seems like a cheap shot.
“Balkin requires good legal reasoning too.”
Not particularly because in his theory ‘good legal reasoning’ is determined almost entirely after the fact (you can’t tell before the Supreme Court rules what good legal reasoning is). So when you say that it requires good legal reasoning too, you aren’t telling us what that is.
The idea(s) do(es) not only stink they are also anything but new. There are demands for executions on TV (and/or in public with TV coverage)*. “People’s justice” is not new either.
*The removal of executions from the public and moving them behind prison walls was extremly unpopular in the past and even seen as an infringement on a sacred right (for details see: Rituals of Retribution : capital punishment in Germany 1600-1987, New York : Oxford University Press, 1996. by Richard J. Evans)
Hartmut: The idea(s) do(es) not only stink they are also anything but new.
Well, yes. But do the posting rules permit me to discuss why I’m not prepared to engage in discussion with JJ where I am with GNZ or Sebastian?
Depends on whether you are able to control your emotions while doing it (I have refrained from putting some of my own thoughts in print because they would have crossed the line).
I think some of JJ’s remarks were so over the top that I would have considered them satire, if there was not evidence to the contrary. While e.g. Brett can get on my nerves occasionally (and so do you btw) it rarely causes blind rage, just desperation for having the same thing fought over again and again without many new arguments. There are people here where the area of agreement is extremly low but without me thinking them being vile, dishonest etc. (I hope the same is true in reverse). On the other hand there are some people, where I can only pity those that have to do with them in real life (“a bunch of mindless jerks who’ll be the first against the wall when the revolution comes.” to quote a famous writer) .
> The notion that the introduction of a jury of your peers will somehow make it more likely that you will be falsely convicted goes against centuries of practical jurisprudence
really? I don’t see that at all – does the US really convict less guilty people than Germany or France or Spain etc despite much greater resources? maybe I am a cynic – but I seriously doubt it. And I don’t see you arguing the point, just asserting it.
I imagine there are many people outside of the US and UK looking at the US and having a good old laugh at your unfair system – it is probably a running gag.
> one of which is, if you allow the principle of killing by the state
You can give power and have oversight at the same time. Thats how good policy works. You don’t always have to tie the hands of everyone else at the table to make sure they don’t hurt you.
> but what actual practice has shown is that, if the state has the right to kill, the right to kill will spread…
Hmm isn’t the rate of executions decreasing almost everywhere in the world?
GNZ: Hmm isn’t the rate of executions decreasing almost everywhere in the world?From the AI UK site:
According to this website, you have to go down to Wyoming nefore you find a US state with a lower execution rate than China. There are 20 states in the US where, proportionally, you are more likely to be killed by the state than you are in China.
Hmm isn’t the rate of executions decreasing almost everywhere in the world?
Not in Texas….
does the US really convict less guilty people than Germany or France or Spain etc despite much greater resources?
Notoriously, the US does not devote its much greater resources to allowing anyone, no matter how indigent, the best defense possible.
So yeah, I’d say that was likely.
The best possible defense goes to the highest bidder, so I’m guessing you don’t mean the best possible, in a global sense.
I’d settle for just competent, at this stage. Or something close to good enough.
Grisham’s book The Innocent Man lays out in some detail how the combination of unscrupulous lawmen, substandard defense and a judge who’s just not paying attention can result in the wrong man on death row, and the guilty party going free. I don’t necessarily recommend it to people who have been following this kind of thing for a while, but it’s one of Grisham’s better pieces, IMO.
J, if I’m reading the table in your linked website correctly, that’s aggregate executions over the last 30 years. From the AI UK website, China’s reported executions are 30x that of the US; the estimated real executions are more like 130x of the US. I’ve read enough about China to completely believe that.
Which is not to say that the US ought to be evaluated using China as a yardstick, just commenting on the comparison between apples and bunches of bananas.
Oh, BTW The Innocent Man is a true story, not a novel.
Slartibartfast: The best possible defense goes to the highest bidder, so I’m guessing you don’t mean the best possible, in a global sense.
In the UK, it’s common for QCs and barristers who intend to “take silk” to do defense work pro bono. The point is to prevent a good defense being the recourse only of the high bidder.
I admit my understanding of this is a lay person’s only, never actually having appeared in court on any criminal matter either as lawyer, defendant, or jury. But the problem of mounting a good defense when you’re not very rich and not poor enough to get legal aid, AFAIK, occurs in civil cases, not criminal ones.
Slarti: Which is not to say that the US ought to be evaluated using China as a yardstick, just commenting on the comparison between apples and bunches of bananas.
Fair enough. Thanks for clarifying that.
Yes, I just confirmed that: anyone is entitled to free legal representation from a Criminal Defence Service solicitor if the crime they are accused of committing is one that will send them to jail (or make them lose their job) if they are found guilty: or if they’re otherwise incapable of defending themselves (someone whose English isn’t good or who’s mentally subpar or who’s a minor). It’s not “pro bono”, though: it’s paid for, though defendants who can afford it will be asked to pay part of the fee.
I get it, Jesurgislac; I really do. Things are rather one-sided, here, and there’s a great deal more emphasis on convictions (and, in general, putting on the appearance of having solved a crime) than on fair trials.
“does the US really convict less guilty people than Germany or France or Spain etc despite much greater resources?”
The U.S. may or may not convict proportionally fewer people, but that’s what would be relevant, presumably, not whether it either convicts “less guilty” people, or convicts fewer people in absolute terms. (I know, not what you meant, but it’s what you wrote, which is why I respond.)
(The fewer/less use distinction actually changes the meaning of your sentence here, he pointed out trivially.)
you know what Phil had my number a bit there.
I think that arguing in favour if the death penalty is actually quite unpleasant so I’ll do a first for political debate on the web and just outright concede the point regarding whether we should have a death penalty on those grounds.
I mean concede the point based on the fact that even the debate is unpleasant (as would have been the debate with Phil that i was being baited for), anyway thank god for my bad internet connection which seems to have stopped me.
and OK Gary,
yes to measure the two options (jury vs judges) against each other proportionally fewer people is what is most important.
Although I am also in favor of a system that sends less people to jail than the US one. the US has a LOT of people in jail – one has to wonder if the USA really does have that much nastier people than anywhere else.
GNZ: I think that arguing in favour if the death penalty is actually quite unpleasant so I’ll do a first for political debate on the web and just outright concede the point regarding whether we should have a death penalty on those grounds.
I think one of the major advantages of hanging out at Obsidian Wings is getting to meet fundamentally decent conservatives.
one has to wonder if the USA really does have that much nastier people than anywhere else.
Yeah, it does, but they’re all in the Bush administration, not in jail. 🙁
I think (compared to the average European country*) there are more expressions of nastyness in the US. The factors contributing to that are likely to be quite complex, so I can only name a few symptoms:
1. The US has a certain anarchist/individualist streak that predisposes people to “take justice into your own hands” instead of leaving it to “the authorities”.
2. Flowing from the same streak I see a greater tendency to use “hard” violence instead of “soft” techniques of conflict solving.
3. The “Winner takes all” mentality favors an all-or-nothing approach with less thought about fair-or-foul distinctions.
4. The state is less seen as the final arbiter and has less inherent authority (while often trying to abuse its power because it is staffed with the same nasties that got into position by applying the principles named above most ruthlessly)
5. The believe in one’s country’s own superiority has not died/withered yet as much. “superiority complexes” tend to bring out the worst in people.
Broad brush painting and oversimplification may be excused for the sake of argument. I do not claim that those reasons are the sole ones and the results of “comparative nastyness studies” are far from 100% objective.
*I leave Austria out here for it somehow manages to combine some of the worst charcateristics of both worlds.
me: “Balkin requires good legal reasoning too.”
Reply: Not particularly because in his theory ‘good legal reasoning’ is determined almost entirely after the fact (you can’t tell before the Supreme Court rules what good legal reasoning is). So when you say that it requires good legal reasoning too, you aren’t telling us what that is.
Response: I’m not sure why it’s important for purposes of the argument to explain the particular contours of the “good legal reasoning” as long as it IS good legal reasoning, which Kerr admits is not really present in the Yoo memo.
Furthermore, Balkin has a set of rules on how to reason independent of a particular case. You can match said rules with the results to see how reasonable the rulings are.
Finally, to the degree Balkin’s jurisprudence arises out of some sort of common law system or whatever that develops over time (in some fashion, simply how things work in reality … compare cases from the 1890s and 1990s), I’m unsure how this means the results are “unreasonable.”
I can see if you say they are somewhat “unpredictable” or whatever (not that originalist labelled arguments tend to be relatively speaking anyway, but I digress), but “unreasonable?”
The problem with the living constitution is the product, not the marketing. The term “living constitution” itself actually falls on my ears positively, as it did when I first heard it as a school kid, at that time from teachers who taught it as a positive thing. Gives our constitution the ability to change with the times, don’t ya know.
The trouble with any marketing term is that it eventually gets tainted, for good or for bad, by it’s associated product. See the term “liberal”, and eventually its successor “progressive”.
It’s interesting to note how often “liberals/progressives” set out to re-label their ideas, perhaps as an analgesic for wounds suffered in the marketplace.
Take the word “skunk”. Not a pretty sounding word admittedly, but similar words “plunk”, “bunk”, “trunk”, or “sunk” fail to provoke the nose curling response that “skunk” does. Or even “liberal”.
So, you can keep telling yourselves its merely marketing. You can try to present your concept of “living constitution” with new names. If “living” is too much of a conservative marketing tactic for you, then why not try its opposite? Which is, incidentaly, where a living constitution takes you, a dead constitution, devoid of respect, and without ability to restrain the the government.
Here’s what I don’t understand, why would anyone blessed to have our constitution try?