Regular readers will know that I almost always agree with George Will (examples too numerous to cite), but his column today, “Questions for Senator Schumer,” takes a wrong turn. I say this, regular readers will also know, not based on any love for Sen. Schumer (Common Washington observation: “The most dangerous place in Washington is between Chuck Schumer and a camera.”)
Some of Will’s question for Schumer, to be sure, are well-aimed zingers:
Does Congress have the power to require Americans to floss after brushing their teeth? Or to regulate the amount of homework children do each night?
Referring to the 1995 opinion holding that possession of a firearm in or near a school had a negligible impact, if any, on interstate commerce, and hence was beyond the authority of Congress to regulate, Will writes:
The principal dissent, by Justice Stephen Breyer, argued that a gun might produce violence that would affect the economy by, among other things, injuring the learning environment, resulting in a less productive citizenry.
Do you, Sen. Schumer, support that reasoning? If so, does not Congress have the power to promote a healthy and productive citizenry by requiring flossing and regulating homework? Does it matter to you that the original intent of the commerce clause was to ensure the free movement of goods and services among the states? Do you think that Madison, the foremost Framer of the Constitution, misunderstood the Constitution?
Again, good questions. And here are more:
During debate on the 1964 Civil Rights Act, Hubert Humphrey, the Minnesota Democrat who was one of the principal sponsors of the legislation, denounced the “wholesale distortions” and “nightmarish propaganda” that the law would permit preferential treatment of an individual or group because of race or a racial “imbalance” in employment. Humphrey stressed that under the act no employer would be permitted to “take into consideration race” because it would “prohibit preferential treatment for any particular group.” Tom Kuchel, a California Republican and another leading sponsor, said the legislation was “colorblind” and would prevent discrimination “in favor of or against a person because of his race.”
Are such assurances germane to judging the legality of what are called “race-conscious remedies”?
Very good questions. But then, having knocked some slow pitches out of the park (I say that because Will is so fond of baseball), he proceeds to misread some change-ups and even fast balls and, I believe, either misses completely or, at best, hits a few fouls:
In 1868, when the 14th Amendment was enacted with its guarantee of “due process” under the laws, 32 of the 37 states had laws criminalizing sodomy. If you agree with the Supreme Court’s 2003 ruling that such laws violate the due-process guarantee, do you think the Amendment’s framers and ratifiers meant for it to overturn the 32 states’ laws? Or do you think the meaning of the amendment’s words somehow changed? If so, how did that happen?
Eighty-five years ago, a consensus having formed in favor of female suffrage, the 19th Amendment was added to the Constitution by democratic processes. Justice Antonin Scalia has written:
The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot but permitted distinctions on the basis not only of age but of property and of sex. Who can doubt that if the issue had been deferred until today, the Constitution would be (formally) unamended and the courts would be the chosen instrumentality of change?
….
Do you agree with Scalia’s use of the word “hence”?
Do you think female suffrage [and, by extension, homosexual rights--jsr] could properly have been conferred by courts construing the equal-protection clause?
If so — if you think the Constitution is a “living document,” the meaning of which changes with the sentiments of society’s changing majority — in what sense is it still a constitution?
Scalia says, “This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.” Is he wrong?
This is complex, and people far brighter than I (of whom Will is definitely one) have struggled with it, but here I believe Will makes the mistake of equating “originalism” with original intent rather than original meaning.
I’ve written about this issue before, citing others who’ve written better. For example, here:
about ten days ago Larry Solum posted a fascinating long post on the current state of play regarding the theory of originalism. He discussed the increasingly important distinction between “original intention” and “original meaning.” An overly simple (but I hope not inaccurate) way of illustrating this sometimes elusive distinction is to look at the debate over how to interpret the 8th Amendment’s ban on cruel and unusual punishment. An original intent interpretation would say that the ban was limited to the specific punishments that those who wrote and then approved the Amendment in fact thought were cruel and unusual (you can see the problem already of determining a collective “intention”). An original meaning interpretation would also rely on historical evidence, but rather than asking what punishments the framers (for lack of a better term) had in mind it would examine the contemporary understanding of the words “cruel” and “unusual.” On this view, a particular punishment might well be unconstitutional even if the framers never considered it, so long as it fell within 18th century (not our) understanding of what those words mean.
Several days before Larry’s post, Randy Barnett, who is certainly one of the most impressive advocates of and practitioners of the new original meaning scholarship, posted a short but incisive discussion of the same intent v. meaning distinction, calling it “The Next Big Issue.” Randy explained that “[o]riginally [he] was not an originalist,” but eventually he
adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed.
On this view (which, at least at the moment, I tend to share), I believe that one can be an “originalist” and still believe that the Court could, for example, have declared that denying the vote to women was unconstitutional even without the benefit of the 19th Amendment, just as I believe the Brown court was right to declare school segregation an unconstitutional violation of equal protection even though it is quite clear that the ratifiers of the 14th Amendment did not think it was.
UPDATE [5 Sept.]
Will continues in a second column:
The Congress that in 1866 drafted the 14th Amendment’s guarantee of “equal protection of the laws” clearly thought the amendment was compatible with programs tailored to benefit African Americans. And in 1866, Congress rejected a bill that would have ended segregation of schools in the District of Columbia. Cass Sunstein of the University of Chicago Law School says, “On historical grounds, it would not be at all implausible to say that the ratifiers of the (Equal Protection) Clause understood it to permit racial segregation as well as affirmative action.” So what help are “historical grounds” when construing the Constitution?
Perhaps not “implausible,” but not altogether persuasive, either. The “programs tailored to benefit African Americans” were not, in fact, tailored to benefit them because they were African American (a term not in use in 1866, by the way). Those programs, such as they were, were tailored to benefit former slaves. And in any event “affirmative action” is not necessarily controversial today. What is controversial is outright racial preferences, which “affirmative action” as originally conceived did not, and need not now, employ.
It is true, however, that the framers/ratifiers of the 14th Amendment did not think that its guarantee of equal protection precluded racial segregation. Anyone who believes in the controlling supremacy of the “original intent” of those who passed and ratified constitutional text, i.e., their belief as to how their words should be applied as opposed to what the words themselves mean, will find it impossible to justify arguing that the 14th Amendment requires colorblindness.
In the same article Will recognizes the tension between meaning and intention:
Legislators produce much “legislative history” — committee hearings and reports, floor debates. Should judges study those to discover the “legislative intent” behind a law? Or does this lead to what Laurence Tribe of the Harvard Law School calls substituting “unenacted thoughts for whatever text actually passed through the fires of bicameral approval and presentment to the president for signature or veto”?
Justice Oliver Wendell Holmes said: “I don’t care what their intention was. I only want to know what the words mean.” However, the First Amendment’s words guarantee freedom of “speech” and “press” but surely the amendment’s authors intended to also protect, for example, handwritten notes. So, is discerning intent one way of deciding meaning?
The question, I would submit, is not whether “discerning intent [is] one way of deciding meaning,” but whether it is the only, or even most important, way.
I think it’s Breyer who just wrote a book and took a swipe or lots at the “originalists.”
People Mag has a blurb, IIRC.
The question about sodomy laws seems a very, very roundabout way of asking whether Roberts believes in the doctrine of incorporation, a way of getting Roberts to talk about the “right to privacy” via asking how the Bill of Rights came to be applied to the states rather than only to Congressional acts (as the plain text would have it) in the first place. If that’s Will’s intention, I think he in fact devised the question rather cleverly, because there’s no way to answer it without getting into other questions to which the Senate is also going to want answers, but which maybe it would prefer not to ask directly.
Scalia’s point about the 19th Amendment and the Equal Protection Clause is one I keep making, and here I have to disagree with you, John: I want my right to vote sitting there in the printed text, not inferred from the 14th Amendment. But (as Scalia says) something like the Warren Court would certainly have just said that women have the vote under the 14th Amendment, and no one would have bothered about amending the text, until someone who wanted to deny women the vote pointed to the text and had a majority of those in power behind him (I think we may assume the “him”).
But to your point: “Original meaning” is not “original intent,” and the latter is pretty well useless so far as I can see, but the former isn’t.
I don’t think the formulation you use about the 8th Amendment works. I don’t think an “original intent” jurist would exclude a punishment from the scope of the Amendment merely because the Framers hadn’t heard of it; that alone would make it “unusual,” for starters. In fact, I don’t see any point on which “original intent” and “original meaning” diverge at all here, except that for the former we have a lot less evidence and no authority.
The real difference is between originalism (either flavor) and the idea that “cruel” and “unusual” must be judged by contemporary standards. No one seems to appreciate that this means that if our standards fall, the law then changes. If most people are, say, all in favor of sterilizing felons, and few think it’s cruel to do so, and states do it, then obviously sterilizing felons isn’t “cruel” or “unusual” by contemporary standards. So what good is the Amendment at this point? Does it do anything at all? Does it protect anyone at all? At least Scalia’s version protects something; if the people at the time the Constitution was enacted would have thought a punishment “cruel and unusual,” it’s off-limits. The flexible version above has no limits at all, and sets none.
Michele – Great comment!
With regard to privacy, I’m not sure incorporation is the way to address this, as there was no explicit right to privacy in the original Bill of Rights that was, in theory, incorporated. The 4th Amendment search-and-seizure would hardly lead to a right to abortion.
Re your right vote “sitting there in the printed text”: I believe it was already sitting there, in the 14th Amendment’s bar to a state’s denying equal protection to “any person” within its jurisdiction. If today a state, say, said American citizens of Mexican descent could vote only after they had been citizens for 10 years, do you think it would take a constitutional amendment to strike that down?
Now it is of course true that the framers/ratifiers of the 14th Amendment didn’t think it conferred the vote on women, but an originalist of the sort I defend would have little trouble, I think, arguing that even the mid-19th century definition of person and equality (not who qualified for it) includes women.
Similarly, I think you miss my point re cruel and unusual, perhaps because the quote I used or my own construction was unclear. The point I intended to make, in any event, was not that a punishment today could be regarded as cruel and unusual even if the founders had not heard of it. It was the stronger point that a punishment could today be barred as cruel and unusual even if the founders specifically thought it O.K., such as tarring and feathering (unusual even then). It’s the 18th Century meaning of the words, not the 18th Century opinions on the specific practices, that should be controlling.
If that were not so, the Court could never have barred segregated schools, since the evidence is overwhelming that the 14th Amendment framers/ratifiers did not believe that Amendment condemned segregation in schools.
“The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot but permitted distinctions on the basis not only of age but of property and of sex.”
Lets remember, this was a judiciary that thought baseball was not interstate commerce. You think they’re gonna let women vote when they twist and turn that much for the reactionary ideologies?
actus, the odd thing is that the people (read: voting-age men, at the time) used the allegedly unwieldy amendment process and gave women the vote anyway. Putting it right there in the text, rather than in an inference from the text that might be re-interpreted by the next bunch of judges.
You think they’re gonna let women vote when they twist and turn that much for the reactionary ideologies?
Well, I rather think they had to, “reactionary ideologies” or no. That’s my point. It isn’t only financial planners who say “Get it in writing.”
(John, I just lost a huge post in response to yours to the sort of stupidity that involves hitting the wrong button. I’ll try to reconstruct it.)
Well, I rather think they had to, “reactionary ideologies” or no. That’s my point. It isn’t only financial planners who say “Get it in writing.”
The writing says equal protection. A woman is unequally protected by the laws when she can’t vote. Radical thought? Or a reactionary court?
actus,
The writing says equal protection. A woman is unequally protected by the laws when she can’t vote. Radical thought? Or a reactionary court?
A 16-year-old can’t vote. An 18-year-old could not vote until the 26th Amendment. Were people between the ages of 18 and 21 unfairly denied “equal protection” until 1971? Are people younger than 18 denied it now?
“Were people between the ages of 18 and 21 unfairly denied “equal protection” until 1971? Are people younger than 18 denied it now?”
No. They’ll have the right to vote at 18 (or 21) just like everyone else. Women back in the day when baseball was not ‘interstate commerce’? not so much.
actus, what was the position of an 18-year-old drafted soldier just before he got the right to vote by Constitutional amendment? Was he necessarily looking forward to being able to vote in a few years? Or a few days? Do you think he got what he longed for?
You tell me. Was denying the vote to people who could be drafted a denial of equal protection, or not? If not, why not?
“You tell me. Was denying the vote to people who could be drafted a denial of equal protection, or not? If not, why not?”
I don’t see what’s unequal. Similarly situated people are being treated the same.
I don’t see what’s unequal. Similarly situated people are being treated the same.
No, they aren’t. If women and men are “similarly situated” sufficiently that they ought each to have the vote, at minimum they ought both to be subject to the draft, yes? It’s a little silly that 21-year-old women (who were exempt from the draft) could vote to put 18-year-old men (who were not) in Vietnam. Or do you not think so?
Michelle (and others) – I now see that the fool I was quoting above in my 8th Amendment discussion (alas, that fool is I) omitted something in writing this:
On this view, a particular punishment might well be unconstitutional even if the framers never considered it, so long as it fell within 18th century (not our) understanding of what those words mean.
What I meant to say, and should have said, is:
On this view, a particular punishment might well be unconstitutional even if the framers never considered it cruel and unusual, so long as it fell within 18th century (not our) understanding of what those words mean.
“It’s a little silly that 21-year-old women (who were exempt from the draft) could vote to put 18-year-old men (who were not) in Vietnam”
“If women and men are “similarly situated” sufficiently that they ought each to have the vote, at minimum they ought both to be subject to the draft, yes?”
I would say so. But some people think that men and women should be treated differently when it comes to being in the military or combat, and thus they’re not really similarly situated.
“It’s a little silly that 21-year-old women (who were exempt from the draft) could vote to put 18-year-old men (who were not) in Vietnam. Or do you not think so?”
I do think the draft was silly. But I don’t think people consider men and women similarly situated when it came to serving in that silly war.
“On this view, a particular punishment might well be unconstitutional even if the framers never considered it cruel and unusual, so long as it fell within 18th century (not our) understanding of what those words mean.”
What evidence do we have to understand that ‘unusual’ was not a textual command to, well, see what usually goes on? Meaning, usually at the present time.
John,
Getting back to reconstructing my lost comment finally:
Will’s question about sodomy laws seemed to me a clever way of getting Roberts to talk first about incorporation, then about the Bill of Rights and whether the first ten Amendments do or don’t imply a “right to privacy” (and, if they do, what might be in there).
I believe it was already sitting there, in the 14th Amendment’s bar to a state’s denying equal protection to “any person” within its jurisdiction. If today a state, say, said American citizens of Mexican descent could vote only after they had been citizens for 10 years, do you think it would take a constitutional amendment to strike that down?
I do not think any state would pass such a law, but if it did, it would be against this strong disincentive (also from the 14th Amendment):
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
In other words, disenfranchise recent immigrants (or any other group apart from criminals) and you lose House representation in proportion. Possibly why no state has ever tried to do any such thing — not through legal channels, at least.
But you will notice, John, the emphasis on male persons 21 and over. I am not anxious to circumscribe the 14th Amendment unduly; but I do draw the line at reading an Amendment that explicitly assumes a male-only electorate as commanding female suffrage. For the same reason, I can’t see the Eighth Amendment as prohibiting capital punishment, when the Fifth Amendment specifically mentions it. Nothing in the 14th restricts us to male suffrage, as nothing in the Fifth Amendment mandates that we have a death penalty. But I don’t see how any competent reading of either the 14th Amendment or the Bill of Rights can fail to deal with these references.
Re cruel and unusual punishment, John, what reading the words as prohibiting anything an ordinary 18th-c. reader would think they prohibit does accomplish is that, at minimum, they prohibit something. There are some things you can’t do to a man under this standard. Whereas under yours, if I read you right, there’s in principle nothing out of bounds, if enough people are persuaded that it isn’t “cruel and unusual.”
I think you are trying to keep my “floor” while adding extra prohibitions as our notions of punishment get more civilized. I don’t think you quite see how easily our getting more civilized could take away protections as well as add them; and I don’t see any principled way of keeping the “floor” at all other than declaring that anything that would’ve been seen as “cruel and unusual” at the Founding, at any rate, is off-limits.
Michelle – These are all good points, and I don’t want to belabor the argument. So, just a few short points:
1. Since the 14th grants the right of equal protection to “all persons,” Hispanics don’t need a separate amendment of their own to protect their right. I think the same holds true for women. (And it is the equal protection clause, not the threat of loss of representation, that prevents any state from acting on my hypothetical.) That is why I think the Equal Rights Amendment, if it had been approved, would not have bestowed any more rights on women than they have now.
2. If in the future the country is swept with revulsion over the death penalty, as reflected in polls and many states outlawing it, I believe a future Court could legitimately bar the practice as cruel and unusual even though the founder/framer/ratifiers did not think it was. I believe such an opinion could be consistent with an “original meaning,” though not an “original intent,” originalism because the meaning of “cruel” would not have changed. What would have changed is the opinion of whether the death penalty is cruel.
It is true that the intention/meaning distinction can trail off into sterile semantics, but I still think it an interesting and useful distinction, as Randy Barnett illustrates so well in his book on Restoring The Lost Constitution.
“I believe such an opinion could be consistent with an “original meaning,” though not an “original intent,” originalism because the meaning of “cruel” would not have changed.”
What if the original intent was that the meaning of ‘cruel’ be tracked?
John,
If in the future the country is swept with revulsion over the death penalty, as reflected in polls and many states outlawing it, I believe a future Court could legitimately bar the practice as cruel and unusual even though the founder/framer/ratifiers did not think it was. I believe such an opinion could be consistent with an “original meaning,” though not an “original intent,” originalism because the meaning of “cruel” would not have changed. What would have changed is the opinion of whether the death penalty is cruel.
But . . . but whose opinion, John? This is the problem. I don’t have a problem with something like, say, Bork’s original-intent defense of the result in Brown. But you seem to be saying here that if some states renounce the death penalty, and polls show strong opposition to the death penalty, the death penalty can be presumed “cruel” and therefore unconstitutional.
I don’t think it’s a good idea for any legal decision to be based on polls, in the first place. Nor do I think it’s a good idea for what a state can do to be contingent on what other states have done.
And the most obvious thing is that if there really is a large majority against the death penalty, no legislature will enact such a statute and no jury will enforce it.
“And the most obvious thing is that if there really is a large majority against the death penalty, no legislature will enact such a statute and no jury will enforce it”
What if a majority thinks the death penalty is cruel, and for that reason enacts it?
actus,
What if a majority thinks the death penalty is cruel, and for that reason enacts it?
You mean, what if a majority, understanding the Constitution to prohibit “cruel and unusual” punishments, nonetheless deliberately imposes what it understands to be “cruel and unusual” punishments? I don’t think we have any precedent for dealing with a majority that wants to do something that it, itself clearly understands to be unconstitutional. So far, we’ve had only to deal with differing interpretations of the Constitution and its individual words and phrases; we haven’t had a case where a majority actually said that the Constitution is clear, and yet we want to do this obviously unconstitutional thing.
If we were to have such a case, I don’t see how it could be dealt with short of civil war. You can argue differing interpretations of the Constitution peacefully; but if your contention is that you aren’t bound by it at all, it’s a graver matter.
“You mean, what if a majority, understanding the Constitution to prohibit “cruel and unusual” punishments, nonetheless deliberately imposes what it understands to be “cruel and unusual” punishments?”
I don’t care what they understand. I care that people both agree that it is cruel and that it should exist.
I’d say there’s really no question. The constitution bans cruel punishments. And there is no doubt that people think this punishment is cruel.
An originalist might try to get around it by saying it had to be cruel back in the 18th century. But I see no reason why the word cruel has to be limited to that.
actus,
I’d say there’s really no question. The constitution bans cruel punishments. And there is no doubt that people think this punishment is cruel.
No, actus, they do not. They think it’s harsh,, but they also think it’s proportionate; or, in other words, just.
Is it “cruel,” do you think, to shut a man up for the rest of his life in a small cell with a total stranger, with no hope of ever getting out into the wide world? (That is the one going alternative to your “cruelty” for the perpetrators of the worst crimes.) How about just for several years or so? How is that not “cruel”?
You are confusing “cruelty” with harshness, and possibly not getting either right. Frankly, if I were offered the choice of the gas chamber or a lifetime in, say, Pelican Bay, I might hesitate.
“No, actus, they do not. They think it’s harsh,, but they also think it’s proportionate; or, in other words, just.”
I said in my hypothetical that people think its cruel. I was discussing that. A situation where people enact a punishment they think is cruel.
Basically what I’m getting at is: lets say I want to end the death penalty. Do I have to convince people it should be abolished — and have it actually be legislatively abolished, or is it enough to unambiguosly (for the hypothetical, assume we can tell) convince people it is cruel — even if some of these people are perfectly happy with it being enacted and cruel.
actus,
Oh, I see. I hadn’t realized that we were still in your hypothetical.
I would say that in the case you describe, the majority either believes itself to be flouting the Constitution or doesn’t care whether it is doing so or not, and either way it is deliberately severing itself from the polity.
It doesn’t matter for these purposes whether the death penalty is “really” cruel or not; you could make up similar hypotheticals about other Constitutional provisions that don’t rely on anyone’s actually being harmed by the majority’s action. Suppose, say, that some wag sent out spoof promotional materials for a nifty new Wiccan mega-coven, and a government moved immediately to suppress it and to detain everyone involved as proven witches. That would be an obvious interference with the free exercise of religion even if no one in on the spoof was actually a devotee of Wicca, and since the authorities would have to admit that Wicca is a religion, they’d be acting knowingly in contravention of the Constitution.
Yes, yes, absent “incorporation” the Bill of Rights doesn’t apply to anyone but Congress. Just assume for the moment that no one disputes that the Bill of Rights applies. If they do dispute it, you have the ordinary situation of two parties fighting abut what the Constitution means. But your hypothetical and mine are about people who don’t care what the Constitution means.
“But your hypothetical and mine are about people who don’t care what the Constitution means.”
in mine we do care. at least, the judge who is ruling does care.
actus,
in mine we do care. at least, the judge who is ruling does care.
Yes, actus, I do realize that. My point is that you’re positing a large number of people who themselves think they are violating a plain provision of the Constitution and don’t really have a problem with that. They don’t care. They are therefore in rebellion against the government, are they not?
Now if they try to make a Constitutional case for themselves — that what they want is avowedly and fortunately “cruel” by modern standards, but wouldn’t have been by 18th-c. standards, or that “evolving standards of decency” have made the 8th Amendment a dead letter, or whatever else you like — then we have to argue with them. But if they simply contend that it doesn’t matter what the Constitution says, I don’t see what we can do but go to war with them.
“They don’t care. They are therefore in rebellion against the government, are they not”
Not really that rebellious to want to pass laws without regard for their constitutionality.
actus,
Not really that rebellious to want to pass laws without regard for their constitutionality.
You don’t think so? I do. If you’ve sworn an oath to uphold the laws of the United States, if you deliberately don’t do so, you are breaking your oath. IIRC every state legislator takes an oath of this kind.
(Oh. To want to pass them? No. The sort of person whose dreams of rebellion involve proposing bills of dubious constitutionality is probably not effectual enough actually to pass one.)
At minimum, I think if something is challenged on constitutional grounds and the only response is a shrug, the legislators have made it clear that they don’t count themselves bound to US law. It’s not as though there aren’t other ways to proceed; they could back down, or they could make a Constitutional case for themselves, as I’ve already said. But if they make it clear that they don’t give a flying f— what’s in the Constitution, they’re basically writing themselves out of the polity.
“You don’t think so? I do. If you’ve sworn an oath to uphold the laws of the United States, if you deliberately don’t do so, you are breaking your oath. IIRC every state legislator takes an oath of this kind.”
Sure. But I don’t think we need to go to war with them everytime they pass an unconstitutional law. It’s enough to just overturn it.
actus,
Sure. But I don’t think we need to go to war with them everytime they pass an unconstitutional law. It’s enough to just overturn it.
Oh, Lord. Your specific hypothetical involved a majority (a state majority, presumably) that liked the death penalty precisely because it was cruel, and didn’t care whether it was constitutional or not. And your answer to this is “just overturn it.” Because obviously if the Supreme Court whose authority your hypothetical majority doesn’t recognize tells them that their nice, cruel law is null and void, they’ll meekly heed the word of their betters, and slink off to a quiet corner and sulk.
My point is that people so far off the political radar that they don’t even try to make a Constitutional argument are, practically speaking, right out of the polity altogether. They are not going to care what the Supreme Court thinks of their actions. You can “overturn” to your heart’s content, but you won’t get the result you actually want (otherwise known as “the rule of law”) without some show of force, because your hypothetical people don’t see the Constitution as binding them at all. If they did, they would at least try to make a Constitutional argument. If they don’t, they either can’t or won’t appeal to US law, and have put themselves outside it.
“they’ll meekly heed the word of their betters, and slink off to a quiet corner and sulk.”
Or they’ll pass the law again, and again our courts won’t enforce it. Happens to regulations all the time. Utah just enacted a blatantly unconstitutional internet speech law. Don’t stop them that its been struck down before. In fact, losing this sort of thing is probably part of their political strategy of moral baiting.
No, actus, you still don’t understand your own hypothetical. I doubt very much that the Utah legislature thinks it’s ignoring the Constitution; I’d bet good money that it isn’t saying that it’s ignoring the Constitution. Your hypothetical majority is imposing cruel punishments precisely because they are cruel, and doesn’t give a damn about the Eighth Amendment. In other words, they aren’t proffering a different reading of the Eighth Amendment; they’re writing it off.
“I doubt very much that the Utah legislature thinks it’s ignoring the Constitution;”
They’ve certainly been told it.
“I’d bet good money that it isn’t saying that it’s ignoring the Constitution. ”
No. They’re saying they’re ignoring some ignorant judge. Just like the people who would want to enact cruel punishments would find some political excuse to ignore the constitution.
But fine. Lets say they want to overturn the first amendment. Then all you need is a court to not enforce it. No need for war.
actus,
No. They’re saying they’re ignoring some ignorant judge. Just like the people who would want to enact cruel punishments would find some political excuse to ignore the constitution.
But fine. Lets say they want to overturn the first amendment. Then all you need is a court to not enforce it. No need for war.
Oooookay . . . you’re positing a government that dismisses a court ruling as “some ignorant judge.” Your response to the situation is just getting a court “to not enforce it.” I am not certain why you think the government (or its officials, its police, &c.) would pay any more heed to the second court than to the first one. What do you do if they don’t?
“I am not certain why you think the government (or its officials, its police, &c.) would pay any more heed to the second court than to the first one. What do you do if they don’t?”
What do you mean ‘if they dont’ ? I’m assuming anything you want enforced needs to be judically enforced. The courts will simply not convict people who violate the unconstitutional law.