He’s Bald

106 thoughts on “He’s Bald”

1. It’s interesting that those who advocate strict adherence to codes of law whereby 12 year old children are hung for stealing food never move to countries with judicial systems more amenable to their implied preferences. Perhaps you should choose to either love America, or leave it?

2. “The problems are worse for precedent, because while there is usually only one or a very limited number of pertinent primary texts, there can often be a vast number of seemingly pertinent (and actually conflicting) precedential texts.”
   Or, in the case of an O’Connor decision, there can be a vast number of conflicting precedents within a single text. Worst justice of my lifetime (so far).
   Seriously, I don’t like Scalia or most of his politics, so it’s telling when I read the decisions and cringe at the majority opinion and have no trouble admitting that Scalia is absolutely, 100% right. “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry”.
   I couldn’t make it through O’Connor’s dissent, but I’m sure there was an eight-part test in there that allowed her to decide herself on a case-by-case basis whether a 17 year old is mature enough to be executed.

3. felix, we aren’t better because we don’t adhere to our codes of law strictly, we’re better because our codes of law don’t stipulate that 12 year old children are hung for stealing food.

4. we’re better because our codes of law don’t stipulate that 12 year old children are hung for stealing food
   Our codes of law used to stipulate such things. Some of us see that adhering to those old standards is absurd. Some of us (scroll up) do not.

5. And by what mechanism do we stop adhering to them?
   You and I have one opinion about whether the execution of 17 year olds constitutes cruel and unusual punishment. Others. . most of the state of Texas, for example, has another. How do you arbitrate the difference? Kennedy says the states get a vote each, and we should check in on what England’s doing, too. Scalia says the citizenry should decide, and I’m inclined to agree.

6. How do you arbitrate the difference?
   Elect leaders who appoint judges for life – that would be one way to do it.
   And, for future reference, the argument that “most of the state of Texas” does something is, in addition to being extremely humorously unconvincing to me, likely to produce some backlash. Just saying. I look to Texas to provide me with examples of what not to do. Texas does not fail me.

7. I couldn’t make it through O’Connor’s dissent, but I’m sure there was an eight-part test in there that allowed her to decide herself on a case-by-case basis whether a 17 year old is mature enough to be executed.
   I have’nt read nor will I ever read O’Connor’s dissent but I can observe the following:
   A 17 year old is not mature enough to have sex with whom ever he/she pleases, not mature enough to sign a contract, not mature enough to vote nor mature enough to go to a bar to dring a beer, and if conservatives had their way not mature enough to get an abortion on their own but is mature enough to be executed.
   There is something wrong with that picture.

8. There is something wrong with that picture.
   Perhaps, but it’s completely unrelated to the constitutional question being discussed.
   I’m no fan of the decision either, but I do want to take issue with one of Sebastian’s points, namely the “Words Change Meanings:” section. Assuming he has in mind the words “cruel” and “unusual”, these are substantively different from words like “circle” and “blue” because they’re inherently relative, subjective terms. In fact, these words haven’t changed their dictionary meaning; what’s (perhaps) changed is the domain of punishments that people might describe with these words.
   As an analogy, say there was a stipulation in the Constitution that members of congress could only tell jokes that were “funny.” Would that mean that congresscritters would be stuck with what was considered funny 200 years ago? Would the Constitution have to be amended every time they wanted to try out some new material?

9. There’s one very compelling reason to not execute 16 and 17 years olds: the so-called March of Freedom. That’s right, we are standing before the world, declaring ourselves the moral superior to every other nation, the one willing to take the heat for what we believe is the right way to protect the dignity of the individual and yet…

   The decision, which was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, cited the embarrassing fact that since 1990, only seven countries other than the United States had executed people for crimes they had committed as juveniles, and even those seven – Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, China and the Democratic Republic of Congo – now disavowed the practice.

   How can we call ourselve morally superior enough to lead the worldwide march to freedom when Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, China and the Democratic Republic of Congo beat us to declaring this practice inhuman? Seriously. It’s one of the most embarassing situations in our nation’s history.

10. How can we call ourselve morally superior enough to lead the worldwide march to freedom when …
    it’s easy: you strike the pose, mouth the words and, blammo – 50+% of the country thinks you’re god’s gift to governance. you create the reality in which you want to exist.

11. Strict constructionists, when faced with one incontrovertible problem with strict construction – i.e., slavery was enshrined in the Consitution – point to the 13th Amendment and say amending the Constitution took care of the slavery issue.
    So perhaps we could test this viewpoint, as well as the viewpoint that interpreting the Constitution should be done by popular will, rather than by judicial decision.
    Conservatives should propose a Constitutional amendment permitting the death penalty for 16- and 17-year olds. Constitutional amendments are voted on by state legislatures and then, if they pass that test, by the country at large. A Constitutional amendment will certainly be a legitimate method, by strict constructionist standards, of asserting, via both strict constructionism and popular will, that sentencing minors to death is a Good Thing.
    Sebastian? Bird Dog? How about it? Write to your congresspersons.

12. I have not read the decision, nor will I, unless I suddenly sprout a whole lot of excess free time. Bt to pick up on kenB’s point:
    In thinking about Constitutional interpretation, it’s really, really important to distinguish between the meaning of a word and its extension: the set of things it applies to. ‘Circle’ means a figure all of whose points are equidistant from its center. (Or something like that; I am not a mathematician.) Its extension is the set of all such figures.
    The extension of a term can change for all sorts of reasons, like (for instance) advances in knowledge, which lead us to say that something that did not seem to be an X in 1789 actually is one. (Here consider ‘poison’: we can discover that something is a poison that was thought to be benign in 1789.) New Xs can come into being (thus, the citizens and persons who now exist are different from those who existed in 1789.) In some cases, we can create new Xs.
    When the extension changes but the meaning remains the same, you have to choose which to care about. You can’t preserve both. Consider the question: when the Constitution says various things about ‘States’, should we interpret this term to refer only to the original 13 states, or to all the states that now exist? Sticking to the meaning of the term yields the conclusion: the present 50. Sticking to the original extension yields the conclusion: the original 13.
    There’s a reason (other than avoiding basic nuttiness) for sticking with the meaning, rather than the original extension, in Constitutional interpretation, namely: if the authors of the Constitution had wanted their claims about States to apply only to the original 13 in perpetuity, they could have said so, or, alternately, have used a list of those original 13 states instead of the word ‘states’, or they could have said: ‘those states which exist in 1789’. What’s on a list of 13 states does not change; which states there are does. But instead of using the list, the authors of the Constitution used the word ‘state’. I take them at their word, and assume that what they meant to refer to was: whatever is in fact a state. If new states come into existence, what they say refers to those new states as well as the original 13.
    Now: people sometimes say: plainly the authors of the Constitution couldn’t have meant to rule out X; after all, they enacted a law allowing X (or something like that.) Given what I’ve said, there are two ways of explaining any such phenomenon: first, those who think that the Constitution dies rule out X are trying to change the meaning of some term in it, and second, the extension of some term has changed. In the first case, what Sebastian says might apply. But in the second, it would just be silly — it would be exactly like saying, ‘But the authors of the Constitution couldn’t have meant that Utah gets two Senators: Utah hadn’t been discovered at the time, and besides, they were perfectly happy with a Senate composed of only 26 members.’
    Or: ‘the authors of the Environmental Protection Act couldn’t have meant to protect species X, since when the Act was passed, X was not endangered’.

13. The Supreme Court cannot be replaced by a computer, a database of text & precedent, and some tight interpretative rules to which we feed cases. I have come to the conclusion that we are always ruled by men, not law, although perhaps we should not phrase it so. Interesting to compare some arguments today with the hilzoy/Cella argument over tight interpretation of “Free Speech” of a few days ago.
    The amendment process, as Caseyl above said, is available. Amendments can be quite easy to push thru when there is a clear consensus(18-yr-old vote, Presidential succession).
    You simply can’t take politics out of law.

14. Pardon the length of this — I am trying to somewhat succinct.
    Your textualism approach as it relates to the death penalty decision is largely irrelevant. It is a very important concept in jurisprudence (which I’ll comment on further below), but it misses the point here.
    The Constitutional issue here is the meaning of “cruel and unusual” punishment.
    When the framers wrote this, they knew that it did not have a specific meaning. They understood that such words only reflected a general policy, to be interpreted over time. They knew how to be more specific — they were purposefully vague. And there is logic as to why they chose vague words over more specific words.
    Most people think that this inherent rubberiness in much of the language of the Constitution is, on balance, a good thing. In this instance, it requires searching one’s moral sense to determine what the law should be on what are essentially as much moral questions as legal ones. The words “cruel and unusual” are moral judgments — not a precise legal definition.
    I would add that this is somewhat unique in law, since most of the time the written law tries to do the opposite — to be slavishly precise in the literal use of words. It results in Constitutional law, by its nature, turning judges somewhat into legislatures.
    Note that this seems to have been the original intent of the framers –without some irony, it is funny to see conservatives use “original intent” to limit the interpretative tradition of Constitutional law when the original intent was probably to allow it.
    That is why the Constitution is only a few pages long, but the tax code is thousands. They are both using words in a very different way.
    Scalia’s dissent was not using a more textual approach. It blatantly appeals to an opposing political instinct, which is that the court should not pronounce Constitutional law, and simply defer such questions to the states or legislatures. There is nothing in the Constitution that requires that result, nor is it any more in accord with the “spirit” of the document than the majority decision. It is another political point of view on how the judge’s should do their job.
    The death penalty decision is ultimately about how our society defines “cruel and unusual” — to divorce this concept from an evolving sense of morality is nonsensical. It also makes for rubbery law, but the framers thought that in some situations, that was a good thing.
    If you see some logic in Scalia’s decision, then it also means that local jurisdictions should also be allowed to decide such things as torture as punishment for crimes, since “cruel and unusual” should be deferred to local decisionmaking, and not be something that the judges should pronounce based on their taking the temperature of society’s moral view of the question.

15. Pardon the length of this — I am trying to somewhat succinct.
    Your textualism approach as it relates to the death penalty decision is largely irrelevant. It is a very important concept in jurisprudence (which I’ll comment on further below), but it misses the point here.
    The Constitutional issue here is the meaning of “cruel and unusual” punishment.
    When the framers wrote this, they knew that it did not have a specific meaning. They understood that such words only reflected a general policy, to be interpreted over time. They knew how to be more specific — they were purposefully vague. And there is logic as to why they chose vague words over more specific words.
    Most people think that this inherent rubberiness in much of the language of the Constitution is, on balance, a good thing. In this instance, it requires searching one’s moral sense to determine what the law should be on what are essentially as much moral questions as legal ones. The words “cruel and unusual” are moral judgments — not a precise legal definition.
    I would add that this is somewhat unique in law, since most of the time the written law tries to do the opposite — to be slavishly precise in the literal use of words. It results in Constitutional law, by its nature, turning judges somewhat into legislatures.
    Note that this seems to have been the original intent of the framers –without some irony, it is funny to see conservatives use “original intent” to limit the interpretative tradition of Constitutional law when the original intent was probably to allow it.
    That is why the Constitution is only a few pages long, but the tax code is thousands. They are both using words in a very different way.
    Scalia’s dissent was not using a more textual approach. It blatantly appeals to an opposing political instinct, which is that the court should not pronounce Constitutional law, and simply defer such questions to the states or legislatures. There is nothing in the Constitution that requires that result, nor is it any more in accord with the “spirit” of the document than the majority decision. It is another political point of view on how the judge’s should do their job.
    The death penalty decision is ultimately about how our society defines “cruel and unusual” — to divorce this concept from an evolving sense of morality is nonsensical. It also makes for rubbery law, but the framers thought that in some situations, that was a good thing.
    If you see some logic in Scalia’s decision, then it also means that local jurisdictions should also be allowed to decide such things as torture as punishment for crimes, since “cruel and unusual” should be deferred to local decisionmaking, and not be something that the judges should pronounce based on their taking the temperature of society’s moral view of the question.

16. Damn — was disconnected while trying to post, and then it posted twice. Sorry.

17. Two things –
    1. There’s an issue at looking at the “narrow” view of existing law – as has been pointed out above, there is a moral issue here – that the U.S. is the only country (even Sudan has stopped) executing minors is morally repugnant.
    2. Given that, your point is well taken – how do we go from an existing morally repugnant law to an updated law that also honors the U.S. Constitution? I’ll take this post as a very narrow stab at how textualism can address this problem?

18. Executing Minors
    I am sure there many good discussions around, and MY did not do so well himself, but “cmdicely” is performing well in the comment section.
    Re:the update. When I say “minority rights” I primarily mean political or geographical minorities, not ethnic or religious minorities. And when I say the Constitution tries to protect minority rights, I include the assignment of two senators to each state as an example of such protection.

19. “The Supreme Court is not a general purpose minority-rights vindicator. Or at least that isn’t its proper role according to the Consititutional scheme.”
    Ninth Amendment?

20. “How can we call ourselve morally superior enough to lead the worldwide march to freedom when Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, China and the Democratic Republic of Congo beat us to declaring this practice inhuman? Seriously. It’s one of the most embarassing situations in our nation’s history.”
    Maybe we can’t call ourselves morally superior. It is embarassing. So what’s the solution? There’s a disturbing trend of ends-justifies-the-meansism going on here. Since the outcome is good (and I do agree the outcome is good), it doesn’t matter that all it took was Kennedy manufacturing evidence of a societal consensus on the question.
    The court has created the precedent that the standard for interpreting cruel and unusual is societal consensus. Our societal consensus. And whether you like it or not, the fact is that by any reasonable measure it is not a consensus in this country that executing 17-year-olds is cruel and unusual, as evidenced by the fact that numerous states do (did) it. That fact shames me. The fact the state takes it upon itself to execute anyone shames me. But my recourse in a free country is to appeal to my fellow citizens, to make the arguments you’ve made, and to shame them as well. . to convince them that what they’re doing is cruel, until we build a consensus. You cannot claim a consensus because you want one, or because your position is morally right.
    Also, at the risk of dropping down from principles to particulars, what we are talking about here is not hanging food thieves, it’s the question of whether — given a 17-year-old boyman who bragged to his friends that he was going to kill someone and then get away with it because of his age, and who then went and in cold blood kidnapped an innocent mother and wife, hogtied her, dropped her off of a bridge, and watched her drown — whether the state should execute him or commit him to prison for the rest of his life without possibility of parole. A profound difference to be sure, but let’s not pretend it turns us into a spoke on the axis of evil.

21. Kennedy’s rationale was lame, sidereal, I agree. But I don’t think that means we should go ahead and execute those 16 and 17 year olds, so it’s not a matter of the ends justifying the means for me, as much as thinking Kennedy’s grasp of morality is better than his grasp of logic.
    But folks keep returning to the 17-year-old who boasted about his murder. That’s what this boils down to, the fact 17-year-olds like and want attention? They feel the need to assert themselves in the face of being caught? Come on. Yes, it’s hideous and callous and he really needs to understand that, but his crime was murder, not boasting about it. That just makes him idiotic. We don’t execute people for being idiotic. If we did, {insert government joke here}.

22. “…(even Sudan has stopped)….”
    Um, the Sudan on our planet?
    There’s a rather significant difference between some nice words one of their government spokespeople says, and reality, you know.
    Good job, by the way, dmbeaster, with my quite trivial caveat that the line between “political point of view” and “legal philosophy” can be, in a number of cases, exceedingly thin.
    “The court has created the precedent that the standard for interpreting cruel and unusual is societal consensus.”
    Are you sure that’s a precedent?

23. “Yes, it’s hideous and callous and he really needs to understand that, but his crime was murder, not boasting about it.”
    His boasting is evidence of premeditation. . malice aforethought . . cold blood. . take your pick. It’s legally very relevant. It’s also evidence that his motivation for the murder was. . what. . boredom, bravado? 100% psychopathic. Also relevant.
    “as much as thinking Kennedy’s grasp of morality is better than his grasp of logic.”
    But Supreme Court justices aren’t intended to be our moral guideposts, thank God. We don’t appoint them because we think they’ll do the right thing, morally speaking. That’s a standard that’s going to destroy you if Bush gets a chance to pack the bench. We appoint them to interpret the law, a task that takes more logic than morality.
    I’m glad we aren’t executing 17 year olds anymore. But the method makes me heartsick, and I predict that it will be used as a rallying cry for a large segment of our population that already feels disenfranchised and ignored by the judiciary. The Democrats’ filibuster will be reinterpreted in those terms. Conservative politics will be reinterpreted (or reinforced) in those terms. They will anger and empower a legion of conservatives by telling them that the judiciary is out of control, that it values its own morals over the citizenry’s, and that only a vast Republican majority can save them, and they’ll more or less be right. Hearts and minds is a battle we have to fight here, too. Not just in Iraq.

24. “Are you sure that’s a precedent?”
    That’s Justice Kennedy’s understanding. From his decision:
    “Based on these considerations and on the finding of national consensus against executing the mentally retarded, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders”
    “The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.”
    ” The evidence of national consensus against the death penalty for juveniles is similar”
    etc.

25. I’m afraid I’m not following how these quotes from Justice Kennedy establish — or even suggest, or hint — that this decision was unprecedented in establishing societal consensus as the standard for interpreting “cruel and unusual,” Sidereal.
    “The court has created the precedent that the standard for interpreting cruel and unusual is societal consensus.”
    As Dahlia Lithwick takes note, this is a long-established precedent, stemming from Stanford v. Kentucky.

26. Gary, is there a societal consensus that punishing under 18 murderers as adults is cruel?

27. Gary, I’m confused. I asserted that societal consensus is a precedent. You asked if I were sure. I provided evidence. And now you seem to be arguing my assertion as if I held the opposite view. Obviously a misunderstanding somewhere.

28. Gary, is there a societal consensus that punishing under 18 murderers as adults is cruel?
    Worldwide? Unquestionably.
    In the US…I hope to God there is.

29. As bad as the majority opinion is in some ways, Scalia’s dissent is much, much worse. I mean worse as a matter of legal reasoning, not in result.
    First of all: a lot of people think Scalia is arguing that the ban on “cruel and unusual punishments” applies only to punishments considered cruel and unusual in 1789. He is not arguing that. He wrote the majority opinion in the precedent that this case more or less overturns, which states:

    “Thus, petitioners are left to argue that their punishment is contrary to the “evolving standards of decency that mark the progress of a maturing society.” They are correct in asserting that this Court has “not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century,” but instead has interpreted the Amendment “in a flexible and dynamic manner.” In determining what standards have “evolved,” however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole.

    He goes on to cite the laws of different states as one of the best forms of objective evidence as to whether “mordern American society as a whole” considers a punishment cruel and unusual.
    What he objects to the way Kennedy counts the states. Scalia has two big problems:
    1) Kennedy takes a rather narrow majority as evidence of consensus. This is fair enough. I could see a sensible argument arguing that you need 38+ states since that’s what it takes to amend the Constitution.
    2) Kennedy counts the states that totally bar the death penalty on the “executing minors is cruel and unusual” side of the ledger. Scalia says that
    “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”
    In addition to being really obnoxious, this is very bad legal reasoning.
    Scalia’s argument is that what the court is trying to decide is, given that the death penalty is not cruel and unusual, is it cruel and unusual to execute minors? And since those retards (he doesn’t say this outright but the contempt is clear) in the most liberal states won’t accept the premise that the death penalty is not cruel or unusual, we don’t have to listen to those idiots. Or to put it more neutrally: they haven’t expressed any opinion as to whether the execution of minors is worse than the execution of adults.
    This is a neat way to disenfranchise your political opponents. What were we supposed to do–say “the death penalty is illegal and executing minors is super DUPER illegal?” I’m not sure I know a single person who opposes the death penalty who doesn’t oppose the execution of minors that much more. But even if we opposed it to the exact same degree, we’d STILL have expressed a belief that it is cruel and unusual. The Supreme Court can’t exclude us just because it disagrees.
    To see how truly crappy Scalia’s logic is, apply his logic to this hypothetical (It’s long, but long because it’s repetitive. It’s conceptually very simple):
    The Supreme Court gets a case asking whether the death penalty is cruel and unusual. 24 states ban capital punishment. 26 states allow it.
    Based on these numbers, it decides that it is not.
    The next year, a person sentenced to death for a murder he committed at the age of 17 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely are irrelevant, because they do not distinguish between the execution of 17 year olds and the execution of adults. And of the 26 states that allow capital punishment, 17 allow the execution of 17 year olds. So there is clearly no consensus that it is cruel and unusual to execute 17 uear olds.
    The next year, a person sentenced to death for a murder he committed at the age of 16 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely or outlawing the death penalty for 17 year olds are irrelevant. They do not distinguish between the execution of 16 year olds and the execution of 17 year olds, which is the question at issue. And of the 17 states that allow capital punishment of persons 17 or older, 12 allow the execution of persons 16 or older. So there is clearly no consensus that it is cruel and unusual to execute 16 year olds.
    The next year, A person sentenced to death for a murder he committed at the age of 15 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely or outlawing the death penalty for 16 and 17 year olds are irrelevant. They do not distinguish between the execution of 16 year olds and the execution of 15 year olds, which is the question at issue. And of the 12 states that allow capital punishment of persons 16 or older, 7 allow the execution of persons 15 or older. So there is clearly no consensus that it is cruel and unusual to execute 15 year olds.
    The next year, a person sentenced to death for a murder he committed at the age of 14 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely or outlawing the death penalty for 15, 16 and 17 year olds are irrelevant. They do not distinguish between the execution of 15 year olds and the execution of 14 year olds, which is the question at issue. And of the 7 states that allow capital punishment of persons 15 or older, 5 allow the execution of persons 14 or older. So there is clearly no consensus that it is cruel and unusual to execute 14 year olds.
    The next year, a person sentenced to death for a murder he committed at the age of 13 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely or outlawing the death penalty for 14, 15, 16 and 17 year olds are irrelevant. They do not distinguish between the execution of 14 year olds and the execution of 13 year olds, which is the question at issue. And of the 5 states that allow capital punishment of persons 14 or older, 3 allow the execution of persons 13 or older. So there is clearly no consensus that it is cruel and unusual to execute 13 year olds.
    The next year, a person sentenced to death for a murder he committed at the age of 12 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely or outlawing the death penalty for 13, 14, 15, 16 and 17 year olds are irrelevant. They do not distinguish between the execution of 13 year olds and the execution of 12 year olds, which is the question at issue. And of the 3 states that allow capital punishment of persons 13 or older, 2 allow the execution of persons 12 or older. So there is clearly no consensus that it is cruel and unusual to execute 12 year olds.
    The next year, a person sentenced to death for a murder he committed at the age of 11 brings a suit arguing that it is cruel and unusual to execute someone for a crime committed that young. The case goes to the Supreme Court.
    According to Scalia’s logic, the states outlawing the death penalty entirely or outlawing the death penalty for 12, 13, 14, 15, 16 and 17 year olds are irrelevant. They do not distinguish between the execution of 12 year olds and the execution of 11 year olds, which is the question at issue. And of the 2 states that allow capital punishment of persons 12 or older, 1 allows the execution of persons 11 or older. It’s 50-50. Sure, the 48 other states agree that it’s cruel and unusual to do this, but asking them about it is like asking an old order Amish what car to buy. Clearly there is no national consensus that it is cruel and unusual to execute 11 year olds.
    apologies if I screwed up the math.
    Does anyone care to either defend this result, or distinguish it from Scalia’s argument that the states that forbid capital punishment don’t count?

30. “Gary, is there a societal consensus that punishing under 18 murderers as adults is cruel?”
    As soon as I’ve finished asking everyone, I’ll let you know.

31. “In thinking about Constitutional interpretation, it’s really, really important to distinguish between the meaning of a word and its extension: the set of things it applies to.”
    I third or whatever this. I just realized it a day or two ago. It is THE most important and overlooked ideological difference between liberals and conservatives in constitutional interpretation, and the place where I think Scalia and Sebastian go totally off the rails. I have been trying to come up with the term for it and was using “application”, but “extension” is a little more precise.

32. You said this: “The court has created the precedent that the standard for interpreting cruel and unusual is societal consensus,” in describing Roper. I asked if you were sure this was a a precedent Roper creater. Either of us may have misunderstood the other.
    “I asserted that societal consensus is a precedent.”
    In Roper, no? If not, this is sufficiently generic that I don’t know what it means. Specifically, that is, the test of societal consensus was not created in Roper, but was clear in Stanford, as explained in the article by Lithwick I linked to.
    “You asked if I were sure. I provided evidence. And now you seem to be arguing my assertion as if I held the opposite view. Obviously a misunderstanding somewhere.”
    Apparently. The thread is about Roper; what is it you have in mind otherwise about societal consensus?

33. “Does anyone care to either defend this result, or distinguish it from Scalia’s argument that the states that forbid capital punishment don’t count?”
    Sure. That is easy. States that don’t have captial punishment at all should be examined to see if they are willing to subject 17-year olds to the full range of punishments available in that state. If they are willing to try and punish a 17-year old to the full extent of their available laws and punishments, they don’t count under the emerging consensus that Kennedy says discriminates between 17-year old murderers and 18-year old murderers. Kennedy’s argument is that the consensus is that 17-year olds aren’t mature enough to be treated as adults for punishment reasons. If non-death penalty states are willing to treat some 17-year old murderers as adults subject to the full range of punishments, they aren’t part of the alleged consensus that Kennedy thinks excludes 17-year olds from the full range of punishments available in a state.

34. Katherine writes: “He wrote the majority opinion in the precedent that this case more or less overturns, which states….”
    Katherine, if I’m not mistaken, you’re quoting Stanford v. Kentucky; might I suggest that it’s extremely helpful to at least name the case one is quoting, let alone give a link? It helps others play along. (Obviously, this is just a suggestion.)

35. “‘the authors of the Environmental Protection Act couldn’t have meant to protect species X, since when the Act was passed, X was not endangered’.”
    Exactly. (Damn it hilzoy you could have saved me days of my life if you explained this years ago.)
    An even better analogy to the way conservatives want to interpret the Constitution is: “‘the authors of the Environmental Protection Act couldn’t have meant to protect species X, since when the Act was passed, X was not believed to be endangered’.”
    It is possible that X will become endangered after the Act is passed.
    It is also possible that X was endangered all along, but we did not see it, out of limitations in our knowledge of the world.
    Should that error bind us, our children and our grandchildren?
    It’s obvious where I’m going with this right? Women were people all along. There could be no equal protection without equal suffrage, all along. Segregation violated equal protection, all along. Jailing your political opponents for sedition violated freedom of speech, all along. Execution of children was cruel, all along. The poll tax violated equal protection, all along.
    American voters thought otherwise once. Well, they were wrong. This should not surprise us. They practiced slavery for God’s sake; it should not be a heretical idea that they got stuff wrong. Should their error bind us forever?
    Before answering, keep in mind that not only did they hold blind, stupid prejudices like this–they also wrongfully excluded the people who might have corrected those prejudices from any participation in the political process. The “supermajority” that ratified the Constitution was a fairly pathetic minority of the population of the United States. Women were officially denied the vote for more than half our history. Racial minorities were officially denied the vote for the better part of 100 years, and unofficially denied it in much of the country for the better part of 100 more. I’m pretty sure poor whites were wrongfully denied the vote too, on and off, but I know fewer specifics.
    It was totally unjust. It was totally undemocratic. It was totally illegitimate. I doubt anyone will argue this with me. But very few conservatives take it at all seriously in arguing about how to interpret the Constitution. It’s the same damn thing as with libertarians and property rights–“let’s quit while I’m ahead.” Sorry, but no. Especially since there’s not actually any textual basis for this sort of originalism, and it is actually not so easy to figure out what original intent really was.

36. good suggestion Gary.

37. “If they are willing to try and punish a 17-year old to the full extent of their available laws and punishments, they don’t count under the emerging consensus that Kennedy says discriminates between 17-year old murderers and 18-year old murderers.”
    That only logically follows if we stipulate that the “full extent” carries the same moral considerations as execution. Since it obviously doesn’t for many people, this fails as a test.

38. Picking out two of these as useful examples:
    “Women were people all along.”
    “Execution of children was cruel, all along.”
    I don’t think these two things are the same. Women have always been people, while the consideration of them as deserving of political power and the vote has evolved. But the nature of women hasn’t changed. But what is “cruel” has no physical substance, and is nothing but a social, or individual, construction or reaction.
    Not a really important point, to be sure, but seeing them equated bothered me a bit; I’m not prepared to argue that all of your other examples are objectively weighable as “wrong,” as per your assertion, either, although I entirely agree, as measured by my own sense of justice and morality, that they are.
    Again, though, entirely off the point you were making, which I’m otherwise in agreement with.
    A last quibble, though: “It was totally illegitimate. I doubt anyone will argue this with me.”
    I might argue that it was only partially illegitimate, unless we stipulate that “illegimate” is an indivisible concept, a stipulation which I can live with for many purposes — but I’d like to see it clearly on the table, if so.

39. “It was totally unjust. It was totally undemocratic. It was totally illegitimate.”
    It was fixed by Constitutional amendment and Congressional legislation. Women gained the vote by Constitutional amendment. Slaves became full citizens by Constitutional amendment. No one is arguing that the Constitution was perfect. No one is arguing that it IS perfect. We are arguing about how you correct the mistakes. In a Constitutional government you make the deep societal changes in fundamental rights by amending the Constitution, not by pretending that your view was there all along. I strongly suspect that this death penalty ruling is going to make Bush judges very easy to push through.
    There is in fact no societal consensus that the death penalty is wrong for 17-year old cold-blooded murderers. We all know that. Kennedy is pretending that there is but we know it isn’t true. I’m not even sure that there is a narrow majority of people who agree with him. This is going to be seen as yet another case of judges substituting their own moral view for ours. It will be seen that way, because it is that way. Kennedy’s opinion is awful not only because it is judicial activism, but because it is based on such an obvious untruth. You can dislike Scalia’s dissent as much as you want. But even IF we should decide 8th amendment questions on a sliding scale of societal consensus Kennedy did not in fact employ a real societal consensus when making his decision.

40. Gary,
    Ah, I understand. You took it to mean a new precedent. No, I was referring to the pre-existing precedent (as redundant as that sounds) via Stanford via McCleskey via Gregg, for the benefit of those who haven’t read the decision, and as a logical antecedent to my following argumentation, which was, at the risk of being repetitive, :
    “Our societal consensus. And whether you like it or not, the fact is that by any reasonable measure it is not a consensus in this country that executing 17-year-olds is cruel and unusual, as evidenced by the fact that numerous states do (did) it.”
    Or in the words of the inestimable Gary Farber:
    “As soon as I’ve finished asking everyone, I’ll let you know.”
    I take Katherine’s point to heart. I found Scalia’s niggling over the proper denominator contrived when I first read it (one that he was probably forced to contrive because Stanford reaffirms the mechanism of enumerating state law as a means of determining consensus, and he wrote it), but I thought the strength of his argument (and I may have injected my own sense into it) was that the number of states disagreeing invalidates any notion of a ‘consensus’.
    What constitutes a ‘consensus’? A bare majority? Certainly not, even in a republic. 75%? 90%? What? There’s no more surefire way to marginalize dissenters than to declare a consensus when there is none, and I don’t think that’s a good thing.

41. “‘the authors of the Environmental Protection Act couldn’t have meant to protect species X, since when the Act was passed, X was not endangered’.”
    Exactly. (Damn it hilzoy you could have saved me days of my life if you explained this years ago.)
    An even better analogy to the way conservatives want to interpret the Constitution is: “‘the authors of the Environmental Protection Act couldn’t have meant to protect species X, since when the Act was passed, X was not believed to be endangered’.”
    I’m not sure either of those is quite right (though I’m no expert on the EPA). Given the way that congress operates these days and its delegation of certain quasi-legislative powers to administrative agencies, I would guess that it has given the power to the EPA to determine what species are endangered (or no longer endangered) at any point in time. So, the act itself explicitly allows for the expansion (or contraction) of the list of endangered species.
    I’m faily confident that it doesn’t simply say something like “all endangered species will be protected.”
    The constitution doesn’t operate this way (though one could argue that the Founding Fathers are Congress and the Supreme Court is the administrative agency).

42. “Since it obviously doesn’t for many people, this fails as a test.”
    It obviously does for many people, so when talking about societal consensus it does not fail as a test.
    It also does not fail because Kennedy grounds his judgment in the idea that being immature mitigates responsibility (which is why he invokes the retarded). If there really was a consensus that being 17 mitigated responsibility for murder, all or nearly all jurisdictions would fail to prosecute them with the full range of punishments available. Mitigated responsibility is mitigated responsibility no matter what punishments you have available. If a person has mitigated responsibility and you punish him to the same extent as someone without mitigated responsibility you haven’t mitigated anything. If A-X=A then X=0.

43. “…not by pretending that your view was there all along.”
    For the record, that’s pretty much not an argument made most of the time, Sebastian. What you’re arguing with is the opinion that the Constitution was deliberately made a flexible, vague, open-ended, document, which future generations were intended to have flexibility to read interpretations into. Now, it’s fine to argue with that, but that’s the argument, an overwhelming amount of the time, not that “the view was there all the time.” That’s just a straw man, and in most cases it, unsurprisingly, falls over if breathed heavily upon. Doesn’t do much good to win that argument, though.

44. And now that I think about it a big longer, I think that I misinterpreted the analogy Katherine and Hilzoy were advancing.

45. A lot of SCOTUS watchers here, so I’m wondering what y’all think of this WaPo’s editorial that the problem is the refusal to say ‘we made a mistake’. I posted in an earlier thread a paper by Jerry Kang about the phenomenon of the judiciary refusing to admit error (and here is his follow up paper) so I’m agreeing with the editorial, but I’m wondering what others think.

46. I’ve apparently decided to disagree with every other human being on the planet in at least one regard in this issue, so Sebastian’s next up. Scalia’s math was, as he likes to say, sophistry.
    Consider these two assertions:
    a) “It is cruel and unusual to subject 17 year olds to the same punishments as 18 year olds”
    b) “It is cruel and unusual to execute 17 year olds”
    You, and Scalia, are sort-of arguing a. Except not really, because you’re not going into the range of non-capital punishment for non-executing states and how they treat minors. Any forthright counter to a) would require that analysis, but it didn’t happen. . you because it’s not your job, Scalia because he’s evil (I mostly kid).
    And the point is moot. The relevant assertion is b). And non-executing states have every right to have their opinion heard on that assertion. Scalia attempts to assert that because their opinion is obvious, it is somehow irrelevant.

47. “States that don’t have captial punishment at all should be examined to see if they are willing to subject 17-year olds to the full range of punishments available in that state. If they are willing to try and punish a 17-year old to the full extent of their available laws and punishments, they don’t count under the emerging consensus that Kennedy says discriminates between 17-year old murderers and 18-year old murderers.”
    No, this doesn’t cut it.
    First, they think that executing 17 year olds is cruel and unusual, and the court is being asked to decide whether there is a national consensus that executing 17 year olds is cruel and unusual, not whether there is a national consensus that executing 17 year olds is way more cruel and unusual than executing adults, or whether there is a national consensus that 17 year olds can never be tried or sentenced as an adult would be for the same crime.
    Further, it is quite possible that they think it is justifiable to treat juveniles as adults for the purpose of trial and determining the length of a prison term, but it is not justifiable to execute them, and would not be justifiable even if it were justifiable to execute adults. (I bet some of the states that ban execution of 17 year olds allow them to be sentenced to life in prison.) It is also possible that they think there may be some cases where a 17 and a half year old is basically an adult, but given the irrevocable nature of execution they don’t trust the jury that just found him guilty of murder to decide that. The penalty phase of a death penalty trial is, very often, a complete and utter joke.
    Further, you don’t actually address the terms of my hypo. Why does one state’s decision that it is unconscionable to execute 16 year olds but not 17 year olds tell you more about whether it is unconscionable to execute 16 year olds but not 15 year olds, than a state’s decision that it is unconscionable to execute anyone tells you about whether it is unconscionable to execute 17 year olds?

48. “If there really was a consensus that being 17 mitigated responsibility for murder, all or nearly all jurisdictions would fail to prosecute them with the full range of punishments available. Mitigated responsibility is mitigated responsibility no matter what punishments you have available.”
    I will cheerfully state that I’ve not yet read either Kennedy’s opinion nor the others, as yet, in this case; it’s not one of the issues that most excites me; possibly I should read it all before engagine in any further discussion of related issues, to be sure.
    However, simply responding to what you say, Sebastian, it seems to me to follow only if we stipulate that a sentence of execution and a sentence of other penalties must be judged by the same standard and the same moral caution. Again, since this is self-evidently controversial, and not something there is a consensus on in our society, in either direction, your conclusion does not flow as the only possibility.
    There may not be any consensus that execution of those under 18 is wrong — I’m certainly not going to argue that there is — but there’s no consensus that it’s fine, either. Is there?
    Bottom line is that to look at how states treat juveniles in non-death-penalty cases, and to look at how they treat treat juveniles in death penalty cases, is to look at two different sets of standards, and thus one can’t claim one is available as a control for the other. They’re just not the same, and they can’t be claimed to be. The entire argument about the death penalty revolves around the unique aspects of the death penalty.

49. “There may not be any consensus that execution of those under 18 is wrong — I’m certainly not going to argue that there is — but there’s no consensus that it’s fine, either. Is there?”
    So what? According to Kennedy you can overrule states which decide for captial punishment by calling their decision unconstitutional based on the pretense that there IS IN FACT a consensus against executing those who committed their crimes when they were not yet 18. There isn’t. Therefore Kennedy’s rationale for declaring one sides decisions unconstitutional slips away.

50. “Further, you don’t actually address the terms of my hypo. Why does one state’s decision that it is unconscionable to execute 16 year olds but not 17 year olds tell you more about whether it is unconscionable to execute 16 year olds but not 15 year olds, than a state’s decision that it is unconscionable to execute anyone tells you about whether it is unconscionable to execute 17 year olds?”
    I give all states equal footing to differentiate between levels of responsibility based on age.

51. I see Sidereal, Katherine, and myself are all on the same page.

52. There may not be any consensus that execution of those under 18 is wrong — I’m certainly not going to argue that there is — but there’s no consensus that it’s fine, either. Is there?
    No, but under the 8th amendment’s constitutional test the burden is on the litigant to prove the existence of a consensus that such a punishment is “wrong”; which does not follow from the absence of a consensus that its “fine.”
    I would say that Sebastian’s point about looking to how the other states treat non-death penalty juvenile crimes rebuts the court’s statement that there has been a realization that 16 & 17 year olds are universally less culpable, if I recall the court’s language correctly.

53. “b) “It is cruel and unusual to execute 17 year olds”
    You, and Scalia, are sort-of arguing a. Except not really, because you’re not going into the range of non-capital punishment for non-executing states and how they treat minors. Any forthright counter to a) would require that analysis, but it didn’t happen. . you because it’s not your job, Scalia because he’s evil (I mostly kid).
    And the point is moot. The relevant assertion is b). And non-executing states have every right to have their opinion heard on that assertion. Scalia attempts to assert that because their opinion is obvious, it is somehow irrelevant.”
    This is very wrong because the relevant assertion is not b. States that don’t like the death penalty don’t like it. That doesn’t speak to the general death penalty constitutionality. Whatever ‘cruel and unusual’ means in context, it does not wholesale ban the death penalty. You can tell this because there are specific provisions for dealing with capital cases in the Constitution that have not been overruled by anything. This goes back to the idea of flexibility vs. infinite flexibility. ‘Cruel and Unusual’ doesn’t get to expand enough to take over other areas of the Constitution.

54. Gary, you’re right about the conceptual difference. “Women are people” is a “you’re right I’m wrong” sort of question. “This punishment is cruel” is a question of “this is inherently subjective, you knew it was subjective when you wrote it, and there’s no reason I must consider myself bound by your definition when you didn’t write it into the document and when it is frankly repugnant to me.”
    “It was fixed by Constitutional amendment and Congressional legislation.”
    Yes, sometimes. Also, sometimes, by the Supreme Court. Loving v. Virginia. Brown v. Board of Education. Skinner v. Oklahoma. Brandenburg v. Ohio. New York Times v. Sullivan. Perhaps you’ve heard of them. Are these cases wrong, Sebastian? Are all of them wrong? I know you like to forget they exist, but they do, and I’ve not once heard you square them with your view of the proper role of the Supreme Court.
    ” No one is arguing that the Constitution was perfect. No one is arguing that it IS perfect. We are arguing about how you correct the mistakes. In a Constitutional government you make the deep societal changes in fundamental rights by amending the Constitution, not by pretending that your view was there all along.”
    This is, precisely, the “let’s quit while I’m ahead” argument. Sorry, not buying. You are not arguing that the Constitution is perfect, but you’re arguing that your preferred theory of interpretation is somehow more true or just or right or prudent than mine, and you are utterly failing to convince me of it.

55. Katherine — sorry not to have said this in time. I agree with you that it’s the most important point separating liberals and conservatives on legal interpretation.
    And I was hoping someone would say what Gary said, namely:

    “Women have always been people, while the consideration of them as deserving of political power and the vote has evolved. But the nature of women hasn’t changed. But what is “cruel” has no physical substance, and is nothing but a social, or individual, construction or reaction.
    Not a really important point, to be sure, but seeing them equated bothered me a bit; I’m not prepared to argue that all of your other examples are objectively weighable as “wrong,” as per your assertion, either, although I entirely agree, as measured by my own sense of justice and morality, that they are.”

    The cases of ‘cruel’ and ‘person’ aren’t that different, I think, since both are highly moral terms, which you’re applying to a punishment/a woman. But ‘cruel’ differs from something straightforwardly ‘factual’, like ‘poisonous’ or ‘endangered’, only given certain assumptions about morality.
    It doesn’t differ if you think moral claims can be demonstrably true or false. I, for one, believe this. If I’m right, then if interpreting the law or the Constitution correctly turns on deciding whether such a claim is true or false, then there’s a right answer as to how it should be interpreted. Moreover, the authors of the law or Constitution could have been wrong about this, so it wouldn’t follow from ‘they thought this was not impermissible/cruel/whatever moral term is under discussion’ that it was not, any more than it would follow from ‘they didn’t think this species was endangered’ that it was not endangered, or from ‘they passed the endangered species act (pretend it does say: protect all endangered species) and yet they held snail-darter fish fries the same year’ that the ESA couldn’t possibly apply to snail darters. They could just not have known that snail darters were endangered, or thought they were a subspecies of a more common species, or whatever. Similarly, they could have been wrong about their moral views.
    Moreover, Gary’s conclusion would also not follow, I think, if moral views are capable of being better or worse than one another, whether or not one thinks this takes the form of more or less closely approximating the truth. — Analogy: I think that interpretations of, say, Othello can be better or worse. An interpretation that makes it all turn on the 6th act: not worth taking seriously. (There is no 6th act.) An interpretation that makes it all turn on the distribution of commas throughout the text: possible, in a way the 6th act interpretation is not, but completely stupid nonetheless. Then we can move through pedestrian, flatfooted interpretations, interpretations that get something importantly right but are too narrowly focused, rich and subtle interpretations that still somehow miss something or don’t go deep enough, to really great interpretations.
    Now: I think we can tell the difference between better and worse interpretations of Othello. But I don’t think that this means that there is some one best possible interpretation of Othello to which these interpretations approximate, so that the better interpretations are closer to the ideal and the worse ones further away. (This is even clearer in the case of e.g. novels: we can judge quality there too, but it seems obvious to me that this is not a matter of approximating The Best Novel more or less closely.)
    Suppose morality is like literary interpretation in this way. Then it would be possible to say: this moral view is better than that one, even if you don’t believe that there is a single best view. If so, then it is also possible to say: the moral view of the authors of a law/Constitution is worse than this other one which we have now come to; and if they used moral terms in writing the law/Constitution, then the better view should prevail.
    (Note: I actually think that judges should consider how far ahead of the citizenry they want to go, morally, and be more willing to go out ahead the more important to those concerned the issues are. Sticking to the moral truth as you see it, even when the citizenry disagrees (and assuming you’ve already thought seriously about the possibility that they disagree because you are in fact wrong) is one thing in Brown v. Board, and another when adjudicating some arcane question of water rights. But the thing is: I think that this is a case in which I am not going with the plain meaning of the text, when the text uses moral terms. It’s my version of judicial activism, which oddly enough would make me less willing to interpret the Constitution in light of the view of morality I think right than I would be if I followed the text itself.)
    Anyways: Gary’s result follows, I think, only if you think that any moral view is as good as any other, and thus there really is no question of the authors of the law/Constitution having been wrong. But that’s not obviously true at all.
    (It was via a similar chain of reasoning that I got Scalia to admit that the main difference between him and Ronald Dworkin was that he, Scalia, was a moral nihilist. One of my favorite moments ever.)

56. “You can tell this because there are specific provisions for dealing with capital cases in the Constitution that have not been overruled by anything.”
    Just a fill in here: Sebastian interprets “nor deny any person life, liberty or property without due process of law” to show that capital punishment is DEFINITELY not and never can be understood as cruel or unusual.
    Of course, it’s also possible that what that provision meant was “whether or not you can ever kill someone, you can’t do it without due process” and that alone, and if so you’re back with the problem of “cruel and unusual” being inherently subjective. In support of this possibility is the Ninth Amendment about the enumeration of certain rights not being meant to disparage other rights. The most narrow reading of this amendment that doesn’t render it identical to the 10th amendment and thus completely meaningless is that it’s a rule of construction: you don’t construe the enumeration of one right to argue for a narrowing of another right. There’s some writing by James Madison that indicates this is what he meant by it, for whatever that’s worth–but it’s quite possible that he contradicted himself, Adams contradicted him, and none of them speaks for the people who ratified the damn thing.
    Nevermind that though. Also forget about the part where Scalia himself says that the meaning of “cruel and unusual” changes with time. Clearly they can’t really believe it’s cruel and unusual, they just don’t like it. I mean, no one could EVER have an honest, principled argument that killing people is cruel. That’s as silly as arguing that women were “people” who were therefore clearly entitled to “equal protection of the law” even before 1920, and this would logically have to include “voting”. That’s not just wrong, it’s CRAZY and you couldn’t POSSIBLY believe it in good faith. You’re just making it up, and us serious originalist constitutional scholars can safely ignore you and all the rest of the hippies in Taxachusetts and those other states that ban the death penalty, and determine the consensus of the Americans who matter.

57. “Whatever ‘cruel and unusual’ means in context, it does not wholesale ban the death penalty.”
    I have rather the impression that there’s some sort of obscure debate about this; I could be wrong, of course.
    If so, however, the statement may be true, but argument-by-assertion is insufficient proof; it begs the question, sir.
    If you change “does” to “should” in your sentence, that’s a different, better, argument, because it’s not tautological, and doesn’t beg the question.

58. “You are not arguing that the Constitution is perfect, but you’re arguing that your preferred theory of interpretation is somehow more true or just or right or prudent than mine, and you are utterly failing to convince me of it.”
    That is unsurprising because we can argue about my theory of constitutional jursiprudence while yours is so undefined as to be inarguable. Your theory of which rights are fundamental and which are not is not defined. Your theory of how to interpret words and phrases is undefined. Your theory of deference to legislators-if it exists at all, is unexplained. You acknowledge that there are limits on judicial power, but I have no idea what they are. Your theory of how new rights are added is undefined. Your theory of how old rights are discarded is undefined. I am unshocked that I can’t convince you that your theory of jurisprudence is wrong because I have no real idea of what it is. I know what it is not, it is not textualism because you argue against being restrained by the boundaries of the text on a regular basis. Other than that, I don’t know what your theory is. You ask me for a comprehensive theory explaining problem case and don’t even offer a bare sketch of your own theory. That’s fine. I accept that we aren’t going to have productive discussions on deep Constitutional theory because you don’t want to talk about yours. That is why I talk about specific topics.
    So….
    There is no consensus that the death penalty is wrong for 16-18 year olds. Kennedy goes on for pages about diminished capacity for 16-18 year olds (relying on studies about teenage behaviour that include 13 year olds). If there were a broad consensus that 16-18 year olds were diminished enough to avoid much responsibility in murder cases, that would evident in bans against subjecting them to the full range of punishment, even in those states which did not have the death penalty.
    I strongly suspect that there isn’t even a majority of people in the US who believe that 17 year-olds who commit murder ought not be executed in certain circumstances. But whatever the exact numbers are, there definitely is not a consensus to that effect. Kennedy and four other justices pretend there is a consensus to get their way. That isn’t good jurisprudence.
    Note the difference from Thompson (which decided that execution under 16 was not permitted): “The plurality opinion explained that no death penalty State that had given express consideration
    to a minimum age for the death penalty had set the age
    lower than 16.”
    No state which considered an age went below 16. That is much more like a consensus.

59. “I have rather the impression that there’s some sort of obscure debate about this; I could be wrong, of course.”
    Yes, there is, and I probably didn’t explain it clearly because I was too mad. The Fifth Amendment makes two allusions to capital punishment:
    “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.
    This provides textual evidence that the founders assumed or provided for the possibility that capital punishment would NOT be deemed “cruel and unusual.” But if you think what is cruel and unusual changes with time and was meant to change with time, it’s not clear why that belief is binding, since they didn’t explicitly say that the death penalty was constitutional and the main point of the provisions seems to be to limit its exercise. People who believe this can cite the Ninth Amendment in support of this claim.
    Also, they’re specifically canvassing the states to determine whether their is a consensus of opinion that the death penalty is “cruel and unusual”–they’re not taking a poll as to how the Supreme Court ought to interpret the 8th amendment, they’re gathering data to apply the legal rule to. Your refusal to execute anyone certainly makes the execution of juveniles less “usual”. And it’s certainly possible to believe that capital punishment is “cruel and unusual” even if you agree that it’s not prohibited by the 8th amendment as properly interpreted. (I know this for a fact, because I believe it’s cruel and unusual but would not vote that the 8th amendment categorically bans it if I were on the Supreme Court–it seems like you need at least one of the three of precedent, constitutional text, or public consensus on your side to elevate your opinion on what’s cruel and unusual to a constitutional requirement.)
    In all this originalism meshugas, I forgot to note: In addition to thinking that you need more than 29 states to make a national consensus, I think canvassing the states is a pretty terrible way to determine what’s constitutional. If you interpret “unusual” to mean “uncommon” I don’t see that you have much choice about it, but I interpret unusual in this context to mean “excessive”.

60. Just a fill in here: Sebastian interprets “nor deny any person life, liberty or property without due process of law” to show that capital punishment is DEFINITELY not and never can be understood as cruel or unusual.

    Not quite right. I interpret the bolded sections as showing that capital punishment is allowed.
    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.

    That’s three direct invocations of the permissibility of the death penalty, not one.
    You can argue all you want about how much good faith you have about the death penalty being cruel. That isn’t the point. Jurisprudence shouldn’t care about your good faith feelings that it is cruel. The Constitution has a clear passage which shows that the death penalty as a concept is not outlawed by the ‘cruel and unusual’ clause. And even if you believe that it is proper to appeal to societal consensus, there is in fact no such consensus on the topic of the death penalty as a whole or on the narrow question of the death penalty for juvenile offenders. So either way, you don’t get to a proper jurisprudence of banning either idea.
    For the sake of argument I will abandon the ‘original’ concept of “cruel and unusual”. I will even avoid attacking the theory that the phrase ought to be ruled by a broad societal consensus. I will not however let you get away with what is at best a narrow majority, and may in fact be a minority opinion that the death penalty is wrong for juvenile offenders. And I’m definitely not letting you get away with the minority opinion that the death penalty as a whole is wrong.
    If you don’t have the original meaning and you don’t have a societal consensus, you don’t have anything that is helping your case.
    What you have is the fundamentalist belief that the death penalty is wrong, and a willingness to implement it against the plain text of the Constitution and without societal consensus on your side.

61. I see we cross-posted.

62. So katherine, to clarify, you believe that Kennedy’s ruling is not Constitutionally correct?

63. I’ve been told that I’m a “pragmatic textualist” with a side of “fundamental rights” but I’m not sure what that means.
    It is no less useless than your saying you’re an “originalist”, of course. You don’t say whether you believe original meaning is binding or also original intent. You also don’t say where you draw the line between “meaning” and “intent”, or hilzoy’s third category of application/extension. You don’t say whether it’s the original meaning/intent/whatever of the ratifiers or the drafters, or which ratifiers and which drafters, or what sources you can consult to determine their original meaning/intent/whachamahoozie, or account for the possibility that they disagreed or that the most plausible explanation of their intent is flatly incompatible with the Constitutional text. You don’t say what to do when there’s a precedent that conflicts with your view of the original meaning of the Constitution. Then there seems to be this truly bizarre belief, which I’m not sure I’ve ever encountered from anyone else who went to law school, that if a court interpreted a provision one way for a given amount of time it’s automatically right and therefore unchallengable. It’s not clear why in previous centuries Supreme Court Justices were infallible, but today’s Supreme judges routinely make stuff up. We’ve had previous discussions where we asked these sorts of questions, and I spent a lot of time answering yours as best I could, and you just didn’t answer mine at all.
    It’s also not clear why one NEEDS a grand theory of constitutional interpretation with it’s own name and all. John Marshall didn’t have one. I don’t believe the Justice on the current court who I think does the best job, David Souter, has one. We’ve had good and bad judges who professed all of them. And none of them provides a complete set of answers as to your method for interpreting the thing, let alone a set of answers as to what each provision means.

64. But I don’t think that this means that there is some one best possible interpretation of Othello to which these interpretations approximate, so that the better interpretations are closer to the ideal and the worse ones further away. (This is even clearer in the case of e.g. novels: we can judge quality there too, but it seems obvious to me that this is not a matter of approximating The Best Novel more or less closely.)
    If you want some technical mumbo-jumbo to throw out there, this is the difference between a partial order with maximal element (i.e. an element which has nothing above it) and a partial order with maximum element (i.e. an element which dominates everything else).

65. Since I’m in a pedantic mood tonight…
    Sebastian: That is unsurprising because we can argue about my theory of constitutional jursiprudence while yours is so undefined as to be inarguable… I accept that we aren’t going to have productive discussions on deep Constitutional theory because you don’t want to talk about yours.
    Could you please specify, to a reasonable degree of accuracy, what constitutes an adequately defined theory of Constitutional jurisprudence? I’ve seen you make this kind of claim before, but I’ve not yet seen what parameters or paradigms you’d consider acceptable.
    And, as a side note, can I suggest to the both you and Katherine that you walk away from the computer for a few hours and take some very deep breaths? It’s getting… combustible in here.

66. “It’s getting… combustible in here.”
    I only see a lot of high-neural-activity radiation going on.

67. I only see a lot of high-neural-activity radiation going on.
    Yeah, yeah, everyone is having fun until someone gets their brain melted down and when that happens, don’t come crying to me!

68. Sebastian: “The Constitution has a clear passage which shows that the death penalty as a concept is not outlawed by the ‘cruel and unusual’ clause.” — Actually, as per my argument above, I think that all this shows is that the framers did not believe that it was cruel or unusual. On a straightforward reading of ‘unusual’ (‘uncommon’), what’s unusual at one time could become usual at another, so as regards that word (on that interpretation). And about ‘cruel’, I think the framers could have been wrong about its application. (I’m not arguing that they were; I don’t really have anything like a good view of ‘cruel and unusual’. Just that the passages you cite don’t show that.

69. Oops, left out the end of a sentence. “so as regards that word (on that interpretation)” — add: their views about what was ‘usual’ when they wrote show nothing about what’s ‘usual’ now. (Miniskirts were unusual then, for instance. And cars were unknown. Certainly the electric chair would have been completely unusual at the time. So what?)

70. And just to be clear: I’m only arguing the general point about constitutional interpretation. As I said, I don’t have a view of ‘cruel and unusual’ that satisfies me, and not being a judge I don’t feel compelled to come up with one, but if you held a gun to my head and asked me to pronounce, I’d say ‘unusual’ was a ban on abuses of judicial discretion, with no application to sentences set forth in laws, and ‘cruel’ was a ban on excessive punishments, where ‘excessive’ is a straightforward invitation to society to apply its sense of what counts as excessive, and ‘excessive’ is not the same as ‘morally wrong’, but has more to do with a lack of proportion between crime and punishment. Since my objection to capital punishment, like my objection to punishing rapists with state-inflicted rape, is not that it ‘doesn’t fit the crime’, I do not think that capital punishment violates the Constitution. I do, however, think it’s wrong, for the reasons I gave much earlier in this thread.

71. “I interpret the bolded sections as showing that capital punishment is allowed.”
    “Allowed” and “must be allowed” are two entirely different concepts, you know.
    “The Constitution has a clear passage which shows that the death penalty as a concept is not outlawed by the ‘cruel and unusual’ clause.”
    It absolutely does not. It has passages which clearly show that it was believed that it may be allowed, as of 1787. That’s entirely different. You’re again begging the question. You can’t prove your assumption by assuming it.

72. Before I head out, let me also note…
    In thinking about Constitutional interpretation, it’s really, really important to distinguish between the meaning of a word and its extension
    A very, very important point, and an excellently phrased one at that. In mathematical logic, these are referred to as the intensional meaning (sometimes the predicative [?] meaning, although I think that’s archaic nowadays) and the extensional meaning. Standard mathematics has an explicit Axiom Of Extensionality which states that two sets are equal iff they have the same elements, regardless of how those two sets are defined; hence “the set of all even primes” and “the set of all numbers n such that f(x) = x^2 is the identity function on Z/nZ” are the same — they’re both {2} — even though they’re not “intended” to mean the same thing, it just kinda happens.
    What makes this pertinent to the present debate is that standard mathematics can get away with the AoExt precisely because its definitions are held to be immutable. 2 will always and forevermore be 2, the set {2, 5, 7, 9} will always have four elements, and so forth. As soon as you allow the underlying framework to start moving around, however, AoExt goes right out the window. If I start introducing new stuff to the universe — in the real world, say telephones or TVs or the notion that slavery is wrong — two sets that were extensionally equivalent before might look nothing alike because their intensional definitions were completely different.
    As far as legal jurisprudence goes, hilzoy‘s exactly right that this is where I, at least, draw the line: I tend to regard the Constitution as intensional rather than extensional precisely because the Framers were lawyers and knew that their (deliberate) ambiguities would need to be interpreted and reinterpreted through the course of history.

73. Look Gary, this is what I have on the side of my interpretation
    a) textual evidence that capital punishment was specifically contemplated and not outlawed
    b) a practice of the death penalty which suggests that it was clearly not unconstitutional for 150 years. In fact it was so obviously not unconstitutional that no one was silly enough to pretend it was until recently.
    c) a societal consensus allowing for the death penalty.
    d) a lack of societal consesus to abolish the death penalty
    Only very rarely does any one bit of evidence in any intellectual endeavour conclusively prove or disprove something. The weight of the evidence is very strong that the death penalty was not meant to be outlawed when the 8th amendment was passed, and that society has not reached any consensus that it does now. The same is true of executing those who committed their crimes when they were in the 16-18 year range.
    The evidence for the other side is that European countries formally don’t like it (though their citizens poll very close to 50% on the issue). Also some people in the US don’t like it. But not a majority and definitely not a consensus.
    My evidence actually has to do with the Constitution and jurisprudence. The other side’s evidence is pretty much just about getting what they want. Sorry, when it comes to Constitutional law, I don’t care.
    Katherine’s comment will have to wait until after the bridge game for a response.

74. This might be apropos. As, for far different reasons this may be. Sorry that it’s just a question of people wanting the former and not the latter, but chacun son gout, I suppose.

75. first, i compliment the posters here on one of the finest and most thoughtful threads i’ve read in a long time.
    second, the environmental protection act created the environmental protection agency. however, neither the act nor the agency have anything to do with endangered species. that would be the endangered species act, giving the agency responsibility to the us fish and wildlife service (and, obscurely, noaa fisheries for anadramous fish and certain other species) (tsk, tsk to the lawyers — see 16 usc 1531).
    third, virtually everyone who takes a crack at a consistent theory of constitutional interpretation ultimately finds themselves recognizing that a lot of what’s going on is results-driven jurisprudence.
    SH, for example, largely believes in majority rule. The bill of rights should, therefore, be narrowly construed and the courts reluctant to extend rights to new groups even if they assert historical discrimination.
    Katherine, Hilzoy and I largely believe in robust defense of minority rights. We read the 14th amendment protections of due process and equal protection broadly, and expect courts to strike down legislation inconsistent with the values reflected in that amendment.
    Some constitutional interpreters try to be consistent on federalism issues; others are more willing to ignore them in order to achieve or prevent the desired societal goal. Medical marijuana, assisted suicide and partial birth abortion are recent cases where a lot of formerly strong central govt types (like, i confess, myself — but largely due to environmental law) suddenly find themselves supporting states’ rights.
    One of the most interesting questions I ever saw was in a blog which asked the commenters to assert a consistent position on both the interpretation of the bill of rights and on federalism, then asked what favorite / most hated laws the commenter would be willing to see struck down / upheld as a result of that opinion. what, in other words, was the price you were willing to pay for consistent legal theory?
    [consider that last para as a request for a guest post, if anyone wants to take a crack at it.]
    Francis

76. The evidence for the other side is that European countries formally don’t like it (though their citizens poll very close to 50% on the issue). Also some people in the US don’t like it. But not a majority and definitely not a consensus.
    A majority of people oppose the death penalty for children. Only 26% of people are in favor of executing minors, according to Gallup. 69% are opposed. 31 states, the federal government and D.C. prohibited executing minors before this decision. Only 7 states have executed minors since 1976, with only 2 of those states executing more than one minor during that period. Over the last 11 years, 8 states have passed laws prohibiting the execution of minors, with legislation having been considered in a dozen others. During that same time period, no states passed laws lowering the minimum age of execution. The Court may have seen evidence of a consensus in those statistics. It is pretty far-fetched to flat out claim there is “definitely not a consensus”.

77. “So katherine, to clarify, you believe that Kennedy’s ruling is not Constitutionally correct?”
    yep.
    Though, as with many other Constitutional subjects, you would probably find my alternative equally horrifying. The only way I can come close to making sense of the cruel and unusual punishments clause is to:
    1) define unusual as “excessive” or “disproportionate”
    2) figure that when they picked words THAT vague and THAT subjective, they had to know they would change with time–especially as things changed so much between the adoption of the English Bill of Right they lifted the word from and the adoption of the bill of rights, and so much immediately afterwards, and as the clause wasn’t held to apply to the states until the 20th century.
    3) this would inevitably involve the judge’s subjective evaluation. If you’re going to take a popular vote there’s no reason at all to constitutionalize it; legislatures can figure out the people’s will better than judges.
    4) this is not, though, because the judges are as wise and superior as Marshall makes them out to be in Furman, but because there’s no other solution that’s not less satisfactory. You really only know your own conscience.
    5) But if the judges are going to decide this trust has been placed in them, they ought not to abuse it. They ought to give even more weight to precedent than they normally would, and do their absolute best to separate punishments that they think are immoral and unduly harsh but about which reasonable people can disagree, from punishments they think are fundamental violations of human dignity.
    As far as more general principles about interpreting the Constitution–I wrote this elsewhere but why not repeat it:
    “Hypocrisy is the tribute vice pays to virtue” is not only a good cliche, but one of the key truths in the history of the United States. We love to tell ourselves these beautiful stories about what this country stands for. These stories start out false in a lot of ways–maybe more false than not. But they slowly become true. We cannot forever escape the gap between these moving, beautiful words and the ugliness of slavery, segregation, denial of voting rights to most of the country, executing children, executing people who are probably innocent, internment, torture. And when we realize that we are being gross hypocrites, it turns out we are too attached to this lovely story and promise to give it up–so instead we come closer to living up to it.
    (This does not only happen in Constitutional law. I first brought it up in the context of the recent moves by Bush administration, that suggest maybe they believe in this democracy stuff after all. And this isn’t the only function of the Constitution. It also sets up some very practical mechanisms for running a government that’s strong and unified enough to deal with external threats and limited and divided enough not to present an internal threat.)
    You can probably see where I’m going with this, but why not spell it out.
    Some parts of the story, we like enough to write into the Constitution as a legally binding promise. And one of the things judicial review does is hold us to those promises–whether or not, when we first wrote and ratified it, we fully understood the committment we were making.”
    Now, as a THEORY of interpretation that’s pretty useless. Very pretty and all, but what on earth does that entail? It’s more an ideological basis for a theory of interpretation, than a theory of interpretation in itself.
    But one of the things it does entail is that “original intent” originalism and “original application/original extension” originalism are not only unpersuasive, but run directly counter to my understanding of why we have a written Constitution and judicial review, and what this country is all about.
    I don’t have a problem with “original meaning” originalism except:
    1) that it can be damn hard to figure out the original meaning & it is just as susceptible as any other method to abuse,
    2) every self-identified originalist I know of mistakenly categorizes “original extension” originalism as “original meaning” originalism.

78. “SH, for example, largely believes in majority rule. ”
    Probably not actually the fundamental difference between us, though I’m partly just guessing…Ask him about the commerce clause.

79. Katherine, on the subject of original meaning/original extension, you may want to check out what Randy Barnett or Michael Perry have to say on the subject. As I recall, they specifically deal with just that distinction (Perry calls it the difference between a constitutional norm and the application of that norm, IIRC).

80. I should have passed this link on earlier. Japan, despite having a strong acceptance of the death penalty, seems to have judges who have a strong abhorrence to applying the penalty to minors. They have made it clear that the Diet should have responsibility if they want the age lowered, which they did in 2001, lowering the age from 16 to 14. However, this was because if someone was under 16, they could not be tried in the court but had to be sent through the detention system. There is no mechanism for lowering the age in particular cases. Judges are still don’t prescribe the death penalty for minors, and I’ll try and find some examples.
    Since SH was arguing how juveniles are treated in toto, this link might be particularly interesting in that it discusses the age of criminal responsibility in various countries. Of course, I do think that this is separate from the question of the death penalty, but it is certainly food for thought.

81. Actually, I don’t think my views on interpretation particularly stem from my wanting robust protection of minorities. For the longest time I just assumed that the Bill of Rights did robustly protect minorities, and meanwhile, while I wasn’t thinking about it, I was studying philosophy, where the distinction between intension (meaning) and extension is one of those Very Important Things that everyone is Very, Very Familiar With.
    Then I got a nice fellowship where I spent a lot more time with people who do political theory and law stuff than I usually do, and as it happened Scalia came to give these big deal lectures, and Dworkin was among the respondents, and sometime in the course of that (but before being seated next to Scalia at dinner) it all clicked into place. And only a few years after that did it occur to me how many things the Bill of Rights does not in any obvious way make unconstitutional: the government telling people which jobs they can and cannot hold, for instance, or requiring that we all wear a national uniform. (I had always thought of Bowers v. Hardwick as some sort of bizarre aberration.) That’s the thing that might have made me move to my interpretive theory, if I hadn’t already adopted it.
    But really, it’s being a philosopher that made me realize, early on, that all words, even the most concrete, require serious interpretation, which we mostly do without thinking about it and generally get right; and thus that no form of original text-ism (I don’t know the terms here) would remove the need for interpretation. — I mean, if anyone wants, we can take some nice “straightforward” word like chair and play the game of coming up with odd marginal cases that are neither clearly chairs nor clearly not.
    (Even further digression: one of the two times I was on a jury, we had a mistrial because we could not agree on the correct interpretation of ‘trunk’, as in the trunk of a car. According to me, carrying a loaded weapon in the way back of a Chevy Suburban did not count as carrying it in the “trunk”, as the law against concealed weapons requires. According to me, a Chevy Suburban does not have a trunk. According to several of my fellow jurors, however, the “trunk” of a car is “the place in back where you put stuff”, and so the gun on which everything turned was in the “trunk” of the Suburban. We actually deadlocked over this.)

82. Then I got a nice fellowship where I spent a lot more time with people who do political theory and law stuff than I usually do, and as it happened Scalia came to give these big deal lectures…
    That wasn’t the one in 1994-95, was it? [I’m being deliberately vague here but I assume it’s clear what I’m talking about.] If so, one of my roommates went to that lecture but I was otherwise occupied; I’ve always regretted missing it.
    PS: Sorry for the implied condescension in my 2:39am post. Should’ve been more careful to indicate that I was speaking to the general audience, not trying to edify you in particular about intension v. extension.

83. Anarch: yes, it was. And I didn’t think you were addressing me about intension and extension, so no worries. (I’d imagine that in math, as in philosophy, it’s one of those things it’s hard not to know. To the extent that I was doing anything clear in my last post, in that part I wanted to say: the distinction itself wasn’t a clever idea that I had. Thus revealing the surprising truth that I am not, in fact, Gottlob Frege.)

84. revealing the surprising truth that I am not, in fact, Gottlob Frege.
    On the plus side, it means that your life’s work didn’t blow up while you were planning to publish!

85. Several quotations relevant to this discussion:
    The first is from “America: The Book”

    “The judicial philosophies held by the nine justices go a long way towards determining the decisions they hand down. For our purposes, these philosophies can be oversimplified into two main categories.
    1. A judicial activist sees the Constitution as a living document that can be adapted and re-interpreted to protect the needs of a changing society, such as “marriage between sodomites” and “impulse abortions.”
    2. A strict constructionist interprets the Constitution according to the language and original intent of the text at the time of its writing, in much the same way as a fundamentalist views the Bible. Fortunately for strict contructionists, they have been endowed by God with the superhuman gift of being able to read the minds of people who died 200 years ago. Naturally, they use this power only for good.”

    The second is from Justice Bradley’s opinion in Bradwell v. State, an 1872 case on whether the 14th amendment meant that women had to be allowed to practice law:

    “On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.
    It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society [83 U.S. 130, 142] must be adapted to the general constitution of things, and cannot be based upon exceptional cases.”

    When Sebastian talks about how it was “completely obvious” for “hundreds of years” that the Constitution did or did not require X, Y or Z–and that it is so ridiculous for me to argue that those judges could have simply got it wrong that I must be “making things up”–think of Bradwell v. State.
    Think of Plessy v. Ferguson, which held that legal segregation on railway cars was constitutional. Note the discussion on whether the state is doing a good job determining how much “black blood” a passenger has, and the smarmy attack about how if black people choose to interpret segregation as a “badge of inferiority,” well, that’s there decision and it’s too bad they’ve got such a complex.
    When conservatives argue that he favors deference to the will of the majority and liberals favor judicial tyranny, ask them what he thinks of The Civil Rights cases, which held that it was unconstitutional to require

    “. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accomodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of publie amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”

    Several of my classmates in the Federalist Society have told me that they believe this decision to be correct, and they believe that Heart of Atlanta Motel v. Perez, which upheld the constitutionality of the 1964 Civil Rights Act under the commerce clause (the Civil Rights Cases assumed the commerce clause didn’t cover it and also rejected that idea that the 14th amendment’s enforcement clause could), was incorrect and should be overturned. I don’t wish to speak for Sebastian here, but based on some of his other statement I’d give better than-even-odds that he agrees.
    When conservatives argue that originalism is the best safeguard we have against judicial abuse of power, think of Dred Scott v. Sandford, which stated:

    It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

    At its best, originalism is an honest but totally quixotic attempt to constrain judges’ ability change the meaning of the Constitution too much or too quickly or do too much against the legislature’s will. I’d like to cite a Justice who does this but I can’t–the closest I can come up with is Scalia. He falls short of this again and again, he can be totally results-driven, he can be sloppy about original meaning v. original intent, he’s clearly homophobic, he’s got a wide anti-democratic streak in his decisions on standing and voting rights, he cherry picks his dictionary definitions and glosses over his history, he distorts the fact patterns of cases, he’s ridiculously stubborn and obnoxious. But he also is more willing than most judges to make a ruling that goes against his political preferences; more intellectually honest than most judges; he has some genuine respect for precedent; he has some genuine respect for the legislature; and if you cross a right that he IS convinced is constitutionally protected, watch out–as we all saw in Hamdi v. Rumsfeld.
    At its worst, it’s not an attempt to preserve the will of the majority against judicial tyranny, or the rule of law over time. It’s an attempt to drag this country back 200 years by the roots of its hair. They say we have to interpret every word of the body of the Constitution and the Bill of Rights exactly as it would have been interpreted by the same men who decided that women couldn’t vote and had no legal rights independent of their husbands, and blacks couldn’t vote and were held as chattel slaves, and it wasn’t clear that you couldn’t jail people who criticized the President, and you had no right to a lawyer if you couldn’t afford one, and sodomy was punishable by death. (Some of these things have been changed forever by constitutional amendments, thank God, but others have not. And in many cases I doubt the legislature would over go back–but whatever additional safeguard that the Constitution provides is lost, whereas they are free to strike down as many civil rights, labor, health and environmental laws as they please.)
    They say we have to interpret every word of the 13th, 14th and 15th amendments exactly as they would have been interpreted by the same men who decided that women couldn’t possibly have constitutional rights to vote or work because God told them so, and that legal segregation and bans on miscegenation violated no one’s constitutional rights, but bans on segregation in hotels and theaters were unconstitutional.
    It would be one thing if an honest reading of the Constitution compelled the conclusion that this is how you are supposed to interpret it. It does not. The text of the Constitution not only doesn’t require it–I don’t believe it even suggests it. If I’m wrong, I’d like someone to cite me the passage of the Constitution itself that shows I’m wrong.
    Now, since the drafters and ratifiers of the Constitution are long dead, and often disagreed with either or gave no clear answer about the meaning or application of a line of the Constitution it’s pretty easy for “originalist” judges to fake what they meant. So this could mean that we are protected from some of the worst excesses of the early United States, even in cases where the Constitution was amended to correct those excesses. But it also means that we can’t even count on originalists in cases where the founders really would have protected us. John Yoo, the author of the OLC torture memo, considers himself an originalist. Clarence Thomas, the one judge who supported the administration’s position in Hamdi, considers himself an originalist.
    I don’t think Sebastian’s anything like Yoo, but he seems a lot closer to Thomas, and maybe even Janice Rogers Brown, than he is to Scalia. I could be wrong about this, obviously.

86. “I mean, if anyone wants, we can take some nice “straightforward” word like chair and play the game of coming up with odd marginal cases that are neither clearly chairs nor clearly not.”
    Put me down as not believing in chairs.

87. There are a lot of questions floating, so unless someone wants to reask, I’m going to tackle what I think is the main one. What would a good system of jurisprudence include? I say include so as not to definitely stack the deck toward my version of interpretation–though I’m sure I’ll end up slanting it somewhat anyway.
    1) It should include an understanding of the relationship between judges and the text–the text being either laws or the Constitution.
    2) It should not be generally capricious–I don’t accept the legal realist concept that jurisprudence is just political war by other means. I’m not particularly happy with “this would inevitably involve the judge’s subjective evaluation. If you’re going to take a popular vote there’s no reason at all to constitutionalize it” as formulated. This tends to suggest that areas like ‘cruel and unusual’ will change at the whim of every justice.
    3) It should be possible for to lead judges to make high level decisions that conflict with their personally desired outcomes. If your system can’t lead you to write “this is a horrible policy, but Constitutional” it is more likely that you are describing your personal moral compass than a system of jurisprudence.
    4) If your system allows for major changes in fundamental rights, you should be able to explain why the amendment process exists–which is to say which things can only be added by amendment.
    5) It should tend toward stability. It should minimize the influence of specific judges. Judges will never be completely interchangeable, but a good system of jurisprudence should give you firm footing to say on most issues, this judge is correct or that judge is incorrect.
    6) It should have a solid understanding of the interaction of precedent. What needs to change for a precedent to be overruled? How does precedent operate. I think quite a few systems correctly identify problems in interpretation of direct texts, but unhelpfully appeal to ‘precedent’ as the solution. Interpreting precedent has the exact same problems as interpreting the primary text. Words and phrases can be difficult to understand. Which area applies to what can be difficult to discern. And precedent can be worse because often you can find conflicting decisions.
    7) There should be at least some attempt to distinguish between legislating and judging–we have different branches of government for a reason.
    And this isn’t crucial to all forms, but it is important to me–the rules must be understandable and lead to relatively predictable outcomes. What is the difference between ‘heightened scrutiny’ and ‘strict scrutiny’ really? Under strict scrutiny I guess you almost always lose, but under heightened scrutiny you almost always lose except at randoms times that are almost impossible to predict. Making a ten part O’Connor balancing test is crappy because it offers no real guidance for future cases. All of her tests basically look like: Weight A,B,C,D, and E according to a secret formula. In this case you get result X. Shake the eight ball and see what answer floats to the top for Y. These tests provide the illusion of process but since the weighting is completely up to the discretion of individual judges, it is just a way to get your personal opinion through the back door.
    Considering you answer about jurisprudence katherine:

    As far as more general principles about interpreting the Constitution–I wrote this elsewhere but why not repeat it:
    “Hypocrisy is the tribute vice pays to virtue” is not only a good cliche, but one of the key truths in the history of the United States. We love to tell ourselves these beautiful stories about what this country stands for. These stories start out false in a lot of ways–maybe more false than not. But they slowly become true. We cannot forever escape the gap between these moving, beautiful words and the ugliness of slavery, segregation, denial of voting rights to most of the country, executing children, executing people who are probably innocent, internment, torture. And when we realize that we are being gross hypocrites, it turns out we are too attached to this lovely story and promise to give it up–so instead we come closer to living up to it.
    (This does not only happen in Constitutional law. I first brought it up in the context of the recent moves by Bush administration, that suggest maybe they believe in this democracy stuff after all. And this isn’t the only function of the Constitution. It also sets up some very practical mechanisms for running a government that’s strong and unified enough to deal with external threats and limited and divided enough not to present an internal threat.)
    You can probably see where I’m going with this, but why not spell it out.
    Some parts of the story, we like enough to write into the Constitution as a legally binding promise. And one of the things judicial review does is hold us to those promises–whether or not, when we first wrote and ratified it, we fully understood the committment we were making.”
    Now, as a THEORY of interpretation that’s pretty useless. Very pretty and all, but what on earth does that entail? It’s more an ideological basis for a theory of interpretation, than a theory of interpretation in itself.
    But one of the things it does entail is that “original intent” originalism and “original application/original extension” originalism are not only unpersuasive, but run directly counter to my understanding of why we have a written Constitution and judicial review, and what this country is all about.

    I understand that this is saying something about jurisprudence, but I have no idea what. On any given issue, the only way I know how that would turn out is because I know quite a bit about your personal opinion on political issues. That isn’t a helpful jurisprudence. What stories are written into the Constitution? What stories weren’t written in, but now are enforceable? How do I discriminate between stories that can be added without amendment and those that can’t? Are there any that can’t? Who controls the changing stories. It obviously isn’t the majority because they have legislatures. Which minority gets to enforce her story against the majority? Which minority gets screwed in favor of another minority in the storytelling? Is the story we are telling about liberating gays by allowing them marriage, or tolerating them by allowing them to have civil unions but not marriages? Who gets to choose between those two stories? Why do you pick that side? You offer zero guidance on that.
    Basically it comes down to this. You often suggest that your system is not capricious, but it seems to have an amazingly selective view of precedent. You are willing to use parts of tests found all over the place in order to find a right to gay marriage, but you insist that the tests the Court has semi-randomly thrown together couldn’t possibly justify polygamy. That makes no sense because the tests have had new elements thrown in over the past 40 years, each time totally transforming the way things played out. Each time a new branch of the test is added because the old branches didn’t lead to the result the judges wanted. It was obvious that the old rules for strict scrutiny wouldn’t get the desired result for some cases, so instead of accepting that the judges invent intermediate scrutiny. When that doesn’t work, they will invent half-way to intermediate scrutiny. So-called fundamental rights seem to be discovered every 10 years–often striking down hundreds of years of precedent and laws all over the nation that everyone thought were prefectly normal. And that isn’t to say that the laws weren’t bad–that is to say that allowing judges to play with fundamental rights constantly eventually undermines the rule of law because it appears–correctly–that judges just make that stuff up. And if they do, why not throw all the decisions their way? The answer is that when you do that, you don’t ever get to the hard but politically productive compromises that allow for real growth. You promote backlash and counter-backlash instead of synthesis. Ultimately that isn’t good.

88. “On any given issue, the only way I know how that would turn out is because I know quite a bit about your personal opinion on political issues. That isn’t a helpful jurisprudence.”
    Oh my God. Do you have any idea how much more true that is of you? I had a moment where I was wondering if I completely misremembered about you ever having taken Constitutional Law, when you argued that it is HARDER to figure out how to apply precedent than the Constitutional text….but let’s not get into that. Let’s go with some straightforward stuff. For the following decisions, please answer:
    1 = the result and reasoning are more or less correct
    2 = the result is correct but the reasoning isn’t close to correct
    3 = the holding and reasoning are both incorrect, but I would uphold as a matter of stare decisis
    4 = the holding and reasoning are incorrect and I would vote to overturn
    ? = unsure/unfamiliar with the case
    Further explanations welcome. If you’re torn between two numbers half numbers are fine. Obviously, there’s no difference between 3 & 4 for some of these cases
    Okay, on to the cases:
    Griswold v. Connecticut
    2/3
    Roe v. Wade
    4
    Bolling v. Sharpe
    1*
    Brown v. Bd of Education
    1 (should’ve been more honest about overturning precedent but okay)
    Lochner v. New York
    4
    Hamer v. Dagenhart
    4
    Bush v. Gore
    4
    Miranda v. Arizona
    3
    Skinner v. Oklahoma
    1
    New York Times v. Sullivan
    1
    The Pentagon Papers Case
    1
    Hamdi v. Rumsfeld
    2 (I go with Souter’s concurrence)
    Rasul v. Bush
    2 (I go with Kennedy’s concurrence)
    Romer v. Evans
    1 (not very clearly explained)
    Korematsu v. U.S.
    4
    Heart of Atlanta Motel v. U.S.
    1
    NLRB v. Jones & Laughlin
    1
    The Civil Rights Cases
    3/4 (this is still good law as far as the 14th amendment; I”m just undecided)
    The Slaughterhouse Cases
    3/4 (still good law; I’m undecided)
    Employment Division v. Smith
    1
    Gideon v. Wainwright
    1
    Abrams v. U.S.
    4
    Loving v. Virginia
    1 (but the substantive due process stuff is really sloppy)
    West Virginia State Board of Education vs. Barnette
    1
    Goodridge v. Massachusetts
    2
    Furman v. Georgia
    3/4. I think it’s already basically been overruled.
    *my interpretation of this case is a fairly big outlier to how I interpret the entire rest of the constitution

89. actually Bush v. Gore is neither 3 nor 4 because of the bizarre limiting it’s to it’s facts thing.

90. Here’s another list of questions I asked and you never answered on a previous thread where we went over much of the same ground:
    “You have asked me a lot of questions about what I think, and I have answered as well as I am able. So please answer me these questions. Please cite to the clause(s) you are relying on & mention the extent to which you are relying on the Ninth Amendment.
    1) Would a law requiring the sterilization of people below a certain IQ be constitutional? If not, why not?
    2) What about sterilizing people after they have two children?
    3) Would a law denying gay people the right to vote be constitutional? If not, why not?
    4) Would a law requiring gay people to register with some central authority, which would publish information about their sexual orientation in a publicly available database, when they move into a neighborhood–would that be constitutional?
    5) Would a law making it a crime for a married women to reach the age of 40 without bearing at least one child, (unless she was a member of a religious order or could prove that she or her husband had a medical condition that prevented conception) be constitutional? If not, why not?
    6) Would a law automatically taking legal custody of children from unmarried mothers under the age of 21 be constitutional? If not, why not?
    7) Does the first amendment prevent government punishment of someone for refusing to recite the pledge of allegiance or take a loyalty oath? Keep in mind that the first amendment talks of a right to SPEECH, not silence, and that it was widely thought at the time to outlaw only “prior restraints” and not criminal penalties for speech.
    8) Is flogging inmates a violation of the cruel and unusual punishments clause, given that it was widely practiced in the 18th and 19th centuries and into the 20th century in many states?
    9) Was Bolling v. Sharpe correctly decided?
    10) Is Dershowitz’ “torture warrants” system constitutional?”
    9 overlaps, obviously. You answered 8 and 10 with a “yes” but never got back to me on the others. I realize these are long lists; even a partial answer would be appreciated.

91. I have often wondered looking at the cases, why “originalism” in practice is not only no better at preventing judicial abuse of power than any other school of interpretation, but why in practice so many of the WORST Supreme Court decisions in the history of our country, as far as usurpations by the court and violations of individual rights, make originalist arguments. I finally came up with a reason for why I think that is:
    First of all, it is not a neutral means of interpretation, but an active decision to take our country back to a time when it was both less democratic, and less respecting of individual rights, and especially less respecting of minority rights, and it was much less necessary–and therefore much less accepted–for the government to intervene in the economy.
    Second of all, and probably more importantly: It allows judges to argue–to themselves as much as anyone else–that the text and history of the Constitution compels this decision, when the text of the Constitution does no such thing and the history of the Constitution (as opposed to other contemporary statutes, Supreme Court decisions, what one particular founder thought, etc.) is unclear at best. It’s a denial of moral responsibility for their own decisions: when you say torture or flogging or government sterilization is constitutional, or labor laws and environmental laws and the 1964 Civil Rights act are unconstitutional–well, you can’t be blamed; James Madison and Alexander Hamilton and their trusty band of ratifiers made you do it.
    In fact the unconscionable results of your decision are spun around in your favor: of course you think torture and government sterilization and a criminal justice system that imprisons or kills the innocent are WRONG,of course you would LIKE to uphold the Civil Rights Act or the Child Labor law, but you are such a beacon of integrity that, weeping silently, you will legalize them anyway.
    And it’s no better a guide against stupid or wrongheaded or results-driven interpretations of the Constitution, or dishonest use of precedent or facts, than any other means of interpretation. They get the legal issues blatantly wrong just as often as liberal judges do. So combine:
    –no better or more consistent answers from the text,
    –the dishonest attempt to argue that the Constitution is unambiguous, when it’s not
    and
    –the abdication of your own conscience,
    and you have the potential for a true disaster.
    You can actually make a pretty good analogy to the monotheistic western religions: the religions that claim to know the literal word of God as set forth in the beginning by the original prophets have a much worse track record, as far as gross violations of human rights, than the religions that interpret that word through extensive commentary and study and argument, or the religions that say you must take the original texts very seriously but you also may–sometimes must–use your own reason and conscience to interpret them.

92. One more previous thread on this subject, and more questions I’ve asked to you and never had answered:
    I posted a laundry list of questions here:

    I could ask more serious questions too:
    What if the founders disagreed? What if the people who wrote it had one idea, but the people who ratified it had another? How can you ever establish what the anonymous ratifiers thought? What if the founders’ intent and the contemporary meanings of their words conflicted? How do you know which dictionary or which definition within a dictionary to use? What if there is no evidence that one provision was written with another in mind? If the founders wanted that to be the rule, why didn’t they say so clearly? What if original intent and stare decisis conflict? Do you abandon stare decisis altogether? If not, how do you know which precedents should stand on stare decisis grounds and which should be overturned? Why do you trust the unelected judges of 200 years ago, who neither wrote nor ratified the thing and got it wrong in case after case after case, more than the judges of today? [specific cases deleted] What is your basis for recognizing that those precedents, which stood as the clear “understanding” for decades and sometimes close to a century, are wrong but that other old precedents are not? And what do you make of the Ninth Amendment?

    In response to this post of yours:

    The defining question for me is “How do you know when a judge has ruled incorrectly?” If you can’t answer that, I don’t think you have a real theory of jurisprudence.

    I answered:

    “How to know if a decision is wrong—When, to reach the result, the judge must
    1) mischaracterize the legal holdings of its precedents.
    2) mischaracterize the facts of this case or previous cases to distinguish unfavorable precedents.
    3) read the text of the Constitution or the statute in a way that the plain meaning of the words &/or their historical context cannot plausibly support. (We should be especially suspicious if that reading is inconsistent with the judge’s other opinions, or results in an ad hoc test which provides the desired answer in this case without the risk of an undesirable answer in others.)
    4) make an argument that logically fails on its own premises. (This is my problem with Roe, by the way. I believe strongly in the right to privacy, but the opinion is based partly on the premise that “the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” of when life begins. But the judges cannot conclude that there is no compelling state interest unless they know that life does not begin at conception.)
    I realize that all of this begs this question to some extent. I don’t think it’s possible to give an answer that does not beg the question. You haven’t really tried yet—prove me wrong if you can.”

    And asked:

    “How do you know when a judge has ruled incorrectly? ‘When the text of the Constitution contradicts him’ is question begging, as are most answers to this question. But you’re asking, so give it your best shot.”

    (it was actually in the opposite order.)
    At that point the thread abruptly ended. As I suspect this thread will abruptly end.
    And feel free to give me a list of cases. BTW, on my list above, I botched Employment Div. v. Smith, confused it with another case on another area with the name “Smith” in its name. I’m a 1/3 on Smith and a 3/4 on City of Boerne v. Flores. And I forgot to ask about the key incitement case, Brandenburg v. Ohio.

93. On the polygamy/gay marriage thing: As I noted at the time, I included every conceivable test not because I needed to patch them together to win, but because I was pointing out that the result always came out the same way. In general, that argument led me to think you either fundamentally don’t understand, or you fundamentally reject giant swaths of the case law on the Equal Protection Clause (and insofar as it was relevant the Free Exercise Clause) Since you’re rejecting the current case law I assume you’re going with an earlier version of the case-law–but not pre-Brown, right?–or what you consider to be the textualist/originalist interpretation of the equal protection clause. I don’t know how you get from “nor deny to any person within its jurisdiction the equal protection of the laws” to the answer in any case. You’re going to have to explain and justify your basic approach to the Equal Protection before we have a useful discussion on the subject.
    In general, I’m getting the sense that you agree with Justice Thomas that stare decisis plays no legitimate role in Constitutional issues, but I’m not sure if this is accurate. So that would be another of the most important questions.

94. Sorry it is taking so long. SEC filings are trying to distract me from important topics. 🙂
    Don’t you see that a list of cases with your personal beliefs only reinforces the idea that your jurisprudence is largely personality driven? But since it seems important to you:
    1 = the result and reasoning are more or less correct
    2 = the result is correct but the reasoning isn’t close to correct
    3 = the holding and reasoning are both incorrect, but I would uphold as a matter of stare decisis
    4 = the holding and reasoning are incorrect and I would vote to overturn
    ? = unsure/unfamiliar with the case
    Okay, on to the cases:
    Griswold v. Connecticut
    3 (overturning this directly would upset so many apple carts that it probably isn’t worth it) but it is another case of bad policy decision not equalling an unconstitutional law.
    Roe v. Wade
    4. Pretty much making stuff up in a way that leads to the impression that judges can do whatever the hell they want. I’m especially bitter about the tease that viable fetuses could be protected which ends up not being the actuality.
    Bolling v. Sharpe
    1 (note this goes against my view on how a government ought to be run–essentially colorblind)
    Brown v. Bd of Education
    1.5 This is more problematic than the number makes it sound. They have been willing to attack separate but ‘equal’ as a doctrine in a much more direct way. The method chosen opened up a whole can of worms that ended up being applied in an ugly way in all sorts of non-racial issues.
    Lochner v. New York
    This doesn’t really need a 4, it has been repudiated already. The problem with Lochner is the same problem you find in Roe, it takes something vaguely alluded to in the Constitution, which had not previously been seen as an absolute right, and blows it up into a Constitutional issue.
    Hamer v. Dagenhart
    4 Same as above, the Constitution doesn’t mandate a ‘free market’.
    Bush v. Gore
    Which part of the opinion? I’m unconvinced by the due process arguments. If you are going to attack it on process grounds, the proper way to do that is to say that the Florida Supreme Court can’t change the process after the fact.
    Miranda v. Arizona
    3–Crappy decision, not worth upsetting the whole legal structure which has evolved around it to correct it though.
    Skinner v. Oklahoma
    I have never read the sterilization case.
    New York Times v. Sullivan
    1.75 The result is broadly correct, but there are some odd problems in the way the Court resolved the case that I’m not happy with.
    The Pentagon Papers Case
    1 Pretty much a straight reading of the 1st amendment. As far as it goes (and this is a comment on society in general) it is too bad that modern papers don’t seem to distinguish between ‘may publish’ and ‘must publish’. See for example details about satellite phones and Al Qaeda.
    Hamdi v. Rumsfeld
    2
    Rasul v. Bush
    2
    Romer v. Evans
    I’m not sure, I may be getting the 3 cases confused.
    Korematsu v. U.S.
    4
    Heart of Atlanta Motel v. U.S.
    1 I’m ok with a broad reading of the commerce clause, just not an infinte reading.
    NLRB v. Jones & Laughlin
    1 as above, though this a closer call than Heart of Atlanta
    The Civil Rights Cases
    I’m not totally sure which parts of this you are asking about, parts of the case are close to ok, parts aren’t
    The Slaughterhouse Cases
    3 This is a good example of original intent instead of original meaning jurisprudence. Of course substantive due process is a huge area of making stuff up, so I have other objections anyway.
    Employment Division v. Smith
    1 What’s the problem? The only reason this was a case at all is because judges have made a huge muddle of the establishment clause. This case could have easily been decided in 1810.
    Gideon v. Wainwright
    1 I’ve never actually read the case on right to an attorney
    Abrams v. U.S.
    2.5 This should probably be filed under–Court chooses to shut up during war if you want to explain the jurisprudence. I think it has some of the right ideas, but wrongly applies them to the case.
    Loving v. Virginia
    1.5 Broadly correct, but goes seriously wrong in some areas. I can be convinced to accept that racial classifications are inherently suspect, but I don’t accept the extension of the principle to lots of other classifications.
    West Virginia State Board of Education vs. Barnette
    I haven’t read that case and don’t know enough about it to comment.
    Goodridge v. Massachusetts
    4 I don’t accept that this is a legitimate extension of Loving. It is also a misreading of the statute.
    Furman v. Georgia
    4. Brennan’s and Marshall’s opinions are especially egregious examples of power-play judging. They knew what they wanted and were willing to damn text, precedent, and general historic understanding and the national will to get it.

95. “In general, I’m getting the sense that you agree with Justice Thomas that stare decisis plays no legitimate role in Constitutional issues”
    See my answer to Miranda. Roper really shouldn’t have been seen at all if we are going to respect stare decisis. It has some role. Some things have gotten so messed up that it isn’t worth untangling whole areas of law to correct medium level mistakes.

96. “And it’s no better a guide against stupid or wrongheaded or results-driven interpretations of the Constitution, or dishonest use of precedent or facts, than any other means of interpretation.”
    The whole post which this is in is pretty much a rant that I can’t respond to. Suffice to say ‘any other means of interpretation’ is surely a huge overstatement, and that I don’t really know what your method of interpretation is. You may not have a perfect idea of what mine is, but I have absolutely no idea what yours is. You cling firmly to precedent in some cases and are willing to throw it to the wind in other cases. You don’t believe in clear understandings of Constitutional phrases, but you seem to believe that things like ‘heightened scrutiny’ are clearly useable. Basically you see injustice and want to kill it. Fine. Laudable. You want a justice system not a legal system. And as long as you 100% right about every single issue, that is going to work fine.
    Why did we require an amendment for women to vote?
    Why did we require an amendment to outlaw slavery?
    What is the purpose of amendments when all fundamental rights can be vindicated by judges?
    And if they can’t, tell me how you know which ones are which. Even generally. I’m well aware that boundary issues can be difficult. But being for liberty and justice and freedom isn’t jurisprudence.
    “You can actually make a pretty good analogy to the monotheistic western religions: the religions that claim to know the literal word of God as set forth in the beginning by the original prophets have a much worse track record, as far as gross violations of human rights, than the religions that interpret that word through extensive commentary and study and argument, or the religions that say you must take the original texts very seriously but you also may–sometimes must–use your own reason and conscience to interpret them.”
    Nice. I can think of some nice parallels between those on the left who ignore social norms in the pursuit of what they believe are just ends and ended up creating the gulags too. But it would probably be about as productive as the above paragraph so I won’t go any further.

97. “What if the founders disagreed? What if the people who wrote it had one idea, but the people who ratified it had another? How can you ever establish what the anonymous ratifiers thought? What if the founders’ intent and the contemporary meanings of their words conflicted?”
    Once again, I’m not an original intent person, I’m a textualist. I don’t care what they thought, I care what they wrote. If (IF, IF and only IF) what they wrote isn’t fairly discernable in the sense that it would have normally been understood at the time, you first look at the context of the document–still not going beyond the text. I don’t care much about intent in the most important layers of analysis. Intent comes into play only on the margins.

    “How to know if a decision is wrong—When, to reach the result, the judge must 1) mischaracterize the legal holdings of its precedents. 2) mischaracterize the facts of this case or previous cases to distinguish unfavorable precedents. 3) read the text of the Constitution or the statute in a way that the plain meaning of the words &/or their historical context cannot plausibly support. (We should be especially suspicious if that reading is inconsistent with the judge’s other opinions, or results in an ad hoc test which provides the desired answer in this case without the risk of an undesirable answer in others.) 4) make an argument that logically fails on its own premises. (This is my problem with Roe, by the way. I believe strongly in the right to privacy, but the opinion is based partly on the premise that “the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” of when life begins. But the judges cannot conclude that there is no compelling state interest unless they know that life does not begin at conception.)

    1) mischaracterize the legal holdings of its precedents: How do you know mischaracterize? Why is it somehow easier to identify mischaracterization of precedent when have so much trouble with mischaracterization of the actual text?
    2) mischaracterize the facts of this case or previous cases to distinguish unfavorable precedents: How do you know mischaracterize? Why can you identify it in precedents but not the actual text?
    3) read the text of the Constitution or the statute in a way that the plain meaning of the words &/or their historical context cannot plausibly support. (We should be especially suspicious if that reading is inconsistent with the judge’s other opinions, or results in an ad hoc test which provides the desired answer in this case without the risk of an undesirable answer in others.) Now this is pretty close to textualism. By my understanding it should come first. I also suspect there could be some fights over ‘plausibly support’.
    4) make an argument that logically fails on its own premises. I agree with this one.
    My problem is that you shouldn’t have 1 or 2 reach judgments that are clearly in conflict with 3. At some point you need to have a checkback with the actual Constitution instead of letting the law drift on and on and on. The problem with putting 1) first is that you end up with a commentary on a commentary on a commentary on a commentary. At some point you aren’t engaging with the Constitution even though you keep using the name. It becomes like an endless game of telephone. You can’t have an extension on an extension on an elaboration on an extension on a speculation without getting things garbled. It is like adding error rates. They don’t always cancel each other out. Person A with political persuasion X is likely to err in direction X. If you just use such a person’s decision and you are of persuasion X you will also tend to err in direction X. After too many iterations of that, if we don’t check in with the actual text you end up very far from the Constitution. You probably like that if you are of political persuasion X. If you aren’t you aren’t going to be happy with it. Your side has had great influence in the courts for quite a while. It looks like that may change. Judicial restraint is a big virtue which isn’t often exercised by either side. In my opinion it ought to be much more important than it is.
    The problem is that you advocate readings that don’t just look mildly surprising in view of textual readings with even mild historical understandings, you advocate readings that look positively shocking in that light.
    For positively shocking changes, we ought to think about amendments.
    You have never articulated why you think we bother with amendments. Are they just pro-forma exercises meant to ratify what judges can already do for fundamental rights?

98. “On the polygamy/gay marriage thing: As I noted at the time, I included every conceivable test not because I needed to patch them together to win, but because I was pointing out that the result always came out the same way. In general, that argument led me to think you either fundamentally don’t understand, or you fundamentally reject giant swaths of the case law on the Equal Protection Clause (and insofar as it was relevant the Free Exercise Clause)”
    I find this rather surprising. You accuse me of not being attentive to modern equal protection clause jurisprudence but you fail to note that modern equal protection clause jurisprudence does not classify gay people as a specially protected class. It doesn’t. You want it to, but it doesn’t. I think it might be a just world where it did, but it doesn’t. You play the game against me, but you only follow the bits of the jurisprudence that you like. This is the whole problem with these patchwork tests. Judges make up something in one spot to cover a specific problem. They add something else to cover another one. They add something else to cover a third. They ignore the first two tests and grab the third while adding a fourth to get to another result that they like which isn’t wholly in line with the original elaboration. Sure, by four or five interations you can find justification for almost anything you want. That doesn’t mean you are remaining faithful to the Constitution. That just means you have defined oral sex as not cheating.

99. Cool, can I play too?
    (1) I’m a textualist. I think that when people pass laws, it’s the words, not the intent, that matters, unless there’s some really, really compelling evidence that e.g. a typo has altered the meaning, and there somehow hasn’t been time for the legislature to correct it, and it’s a matter of great importance. But basically, a textualist.
    (2) As noted above, I think the distinction between the meaning and the extension of a term is crucial. I care what the original meaning of a term was. I do not care what its original extension was thought to be. Thus, as noted above, the fact that the authors of the Constitution did not anticipate Senators for Utah does not seem to me an argument against having Senators from Utah today: the meaning of “state” is the same as it was, but the set of states has changed. Suppose someone in the 1790s wrote a statute that prohibited deliberately exposing people to poisons, but some other part of the statute referred to letting people work in your mercury mine as if it were unproblematic. In that case I would say: if there’s evidence that the authors of the statute did not know that mercury is a poison, then we should not take the reference to mercury mining to show that whatever interpretation of the ban on exposing people to poisons must somehow allow for employing them in your mercury mine. For we have an alternative: namely, to think that the authors of the statute were using terms like ‘expose’, ‘poison’, etc., as we do today, and thought mercury mining was OK because they didn’t know mercury was a poison; but now that we know that it is a poison, we can conclude that employing people to mine mercury is prohibited, even though the authors of the statute seemed to think it’s OK.
    The same sort of argument is, in principle, available when e.g. the authors of some document say something that seems to us to require gay marriage or integrated schools or whatever, but those same authors regarded gay marriage/integrated schools/whatever as obviously not covered by the statute. It might be that we are trying to change the meaning of some crucial term. It might, on the other hand, be that we believe the authors to have been wrong about what that term applies to. In the first case, my views on interpretation say that we should go through the legislature instead. In the second, my views say: right, this happens all the time, and its general legitimacy is why explaining why Utah gets to have Senators does not present a thorny constitutional problem.
    (4) I think that when the authors of a document use a general term, like ‘state’, rather than listing the states they are aware of, we can assume that they did not mean to restrict the application of the term to the states that existed at the time, but to allow for the creation of new ones. I assume that when they use ‘poison’ rather than listing the poisons known to them, they mean to allow for the discovery of new poisons, to which laws about poisons will apply. And I assume that when they use terms like ‘equal protection’, rather than listing the things they take ‘equal protection’ to involve, it’s for similar reasons.
    (5) I also think that there is no getting around the need for judicial interpretation, and thus no avoiding the need to rely, to some extent, on judges’ good faith, and also no avoiding the possibility of judicial activism. No term interprets itself. (Even mathematical terms are imho precise only if we restrict their application in ways designed by mathematicians to allow for precision.) And any set of claims of anything like the complexity of the Constitution will have tensions and conflicts that need to be sorted out. The interpretation of terms, and the sorting out of tensions, are ineliminable, and not a function of one’s judicial philosophy. Judicial philosophy can at best deny the need for these things, not eliminate it.
    — No views on stare decisis et al, both because I have to go and because ianal.

100. ” I care what the original meaning of a term was. I do not care what its original extension was thought to be.”
     I agree that this is important, and I think one useful way of thinking about it is set theory. Basically the writers of laws often name a set like ‘poison’ or ‘state’ without precisely identifying all of the members of the set. So long as we can understand what a state or poison is, we can add or subtract members from the set as further knowledge is gained. The question is “Who adds and subtracts members of the set?” I’m ok with judges making minor clarifications. If something says “sparrows” I don’t mind a judge clarifying “blue chested sparrow” but I don’t think they can add “eagle” nor do I think they can subtract “red chested sparrow”. If you want to add “eagle” you need to change the law through non-judicial processes.

101. See: I don’t think that judges can add or subtract members of a set either. When we add new states, the Congress changes the members of the set of states, and judges just have to take that into account when asking, for instance, if Utah should have Senators. When a species becomes endangered, predators/development/whatever changes the members of the set of endangered species, and judges alter nothing when they conclude that the Endangered Species Act now applies to Spotted Owls. When we discover that mercury is a poison, then it’s not judges ‘adding’ a new member to the class of poisons; mercury was a poison all along, and the only change is in our knowledge.
     Likewise, if a plausible interpretation of ‘equal protection’ yields the conclusion that banning gay marriage is wrong, not because the meaning of ‘equal’, ‘protection’, or ‘equal protection’ has changed, but because those who originally believed that it did not preclude such a ban were mistaken, then judges change nothing if they recognize this fact. And therefore I think that pointing out that they did not believe that laws banning gay marriage were members of the set of laws they banned when they passed the 14th amendment shows no more than pointing out that the authors of the ESA did not envisage that it would cover a given species, or that the authors of my imaginary exposure-to-poisons act did not believe that mercury mining involved such exposure. In all three cases, judges are keeping the meaning of the law constant, and applying it in the best way their knowledge allows.
     As I said above (quite a bit above), one of the points at which I stop being a strict textualist and support judges departing from the text is this: when a judge believes, after serious reflection, that the correct interpretation of the law requires some serious change which is not widely accepted (and believes this after taking into account the idea that its lack of popular acceptance is best explained by thinking: well, it isn’t the correct interpretation of the text), then I think that the judge should go ahead and apply the correct interpretation only if it’s quite important. (My version of precedent.) Times I think one should go ahead include Brown v. Board, Loving, Bowers v. Hardwick, and also gay marriage. In all such cases fundamental interests are at stake. I do not feel the same way about arcane bits of administrative law.
     But it seems to me that in saying this, I am endorsing a form of judicial activism. It’s just a form that involves NOT changing things in accordance with what one takes to be the correct interpretation of the text unless something very important is at stake.

102. “Why did we require an amendment for women to vote?”
     Because the judges who first interpreted the 14th and amendment were “sexist lackwits” (trademark von) who rejected the clear and logical implications of the amendment’s text. Let me just quote Bradwell v. State one more time:

     Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.
     It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society [83 U.S. 130, 142] must be adapted to the general constitution of things, and cannot be based upon exceptional cases.”

     This has got to be five times stupider than anything to pour forth from the pen of William Brennan or….who was responsible for actually writing Griswold? It is one of the worst-reasoned decisons I’ve ever seen.
     A more specific answer to “how do you know when a decision is wrong” is–when in the two key paragraphs it cites all of these authorities:
     –the “natural and proper timidity and delicacy which belongs to the female sex”
     –“the constitution of the family organization”
     –“the divine ordinance”
     –a “sentiment” held by “the founders of the common law”
     –“the nature of things”
     –“the law of the Creator”
     –the “general Constitution of things”
     And none of these things:
     –Any state or federal statute
     –Any state or federal court decision other than the one being challenged in this case
     –Any restatement or persuasive legal authority
     –Any text from the U.S. Constitution
     “Why did we require an amendment to outlaw slavery?”
     Because Garrison was quite right that the Constitution was a pact with slavery. There is no textual basis for banning it. The enumerated powers part provides for the continued existence of slavery. The bill of rights only restricted the federal government, not the state governments or let alone private actors.
     I can find no textual basis at all for concluding that the following list, all of which I consider good policy ideas, are constitutionally required:
     –Washington D.C. should be represented in Congress
     –Congress and the states can’t ban abortion
     –The government has a duty to prevent people from starving in the streets for lack of food
     –The government has a duty to prevent people from freezing to death in the streets for lack of shelter
     –The government has a duty to prevent people from dying of easily preventable or curable diseases for lack of basic medical care
     –The government has a duty to protect the environment
     –The government has a duty to run public schools, public libraries, roads, or national parks
     –We cannot completely close our borders
     –We have to give asylum to people fleeing here who will be murdered for their religion, political beliefs, or race if we sent them back to their home country
     –It violates the Constitution for the army to torture prisoners overseas
     –Gerrymandering is not allowed
     –The Senate filibuster is constitutionally required
     –The population requirement for a House district number of much house numbers must expand automatically such that
     –It is unconstitutional for the president to command the armed forces to torture someone
     –Election day should be a national holiday
     –The New York State government cannot revoke New York City’s charter & directly govern the city from Albany
     This is a teeny, tiny list; the real list is basically endless.
     The following statutes that I consider very good ideas are unconstitutional based on any fair reading of the text:
     –Naturalized citizens of the U.S. should be eligible for the presidency if they moved here when they were young enough or have lived here long enough
     –The president should be chosen by the popular vote, not the electoral college
     –Campaign finance laws like England’s
     –When a proposed amendment clears the House and Senate
     and goes to the states for final ratification–ratification should occur when the state legislatures representing 2/3 of the U.S. population agree to it, not legislatures representing 2/3 of the states agree to it.
     Again, a full list would take forever.

103. I see you just posted can’t respond yet. Just wanted to say 3 for the Slaughterhouse cases? I mean 4. Rendering the P&I clause a nullity wasn’t good textualism.

104. I can find no textual basis at all for concluding that the following list, all of which I consider good policy ideas, are constitutionally required:
     –Washington D.C. should be represented in Congress
     You don’t feel that this falls somewhere under the Equal Protection rubric? I would think that this is the strongest argument for it.

105. One last thing:
     suppose we ratify a Constitutional amendment saying:
     “Notwithstanding any other provisions of this Document, State legislatures may, but are not required to, outlaw or place restrictions on abortion.”
     Would that prove Roe v. Wade was actually correct all along? If Massachusetts passed an amendment saying that gay marriage isn’t constitutionally required, would that prove that Goodridge was actually correct all along?I hope it’s clear to everyone that the answer is, “of course not.” But according to the logic you apply to the 19th Amendment, it would.
     You could pass an amendment for several reasons:
     1) because you want to do something that the Constitution clearly does not permit, or outlaw something that the Constitution clearly does not forbid. 2) because the Constitution is ambiguous on a certain point that you want to make crystal clear.
     3) because, in your view, the Constitutional text is already clearly on your side, but a majority of the Supreme Court is too stupid to realize it.
     It’s totally permissible for the Supreme Court to interpret ambiguous provisions and overturn precedents that conflict with the text of the Constitution.

106. “You could pass an amendment for several reasons:
     1) because you want to do something that the Constitution clearly does not permit, or outlaw something that the Constitution clearly does not forbid. 2) because the Constitution is ambiguous on a certain point that you want to make crystal clear.
     3) because, in your view, the Constitutional text is already clearly on your side, but a majority of the Supreme Court is too stupid to realize it.”
     Sure. I address this in the other thread when I talk about the difference between scientifically noting that something is a poison and making social choices. It is not a law of the physical universe that women must be allowed to vote. It isn’t a law of the physical universe that anyone must be allowed to vote. Those are societal facts. Many people would argue that those things are covered by ideas like Platonic Moral Values, Natural Rights, or God-Given Rights. You don’t allow for that kind of appeal (see above). As such, they are societal understandings. The problem you have is what to do with the societal understandings that change. You seem to allow for them to become Constitutional Rights at a very low threshold of acceptance. You don’t require a consensus that the norms have changed. You don’t require a large majority acknowledging the norms have changed. You don’t even seem to require a majority at all. And that leads to the problem of ‘who decides?’

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