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March 28, 2007

Comments

This is a great post.

I'll offer the short form. Here's the line in the sand:

When the President does it, that means that it's not illegal.

The quote is from Richard M. Nixon in an interview with David Frost, with reference to the Huston plan. If you're not familiar with the Huston plan, it's worth looking up.

The spiritual and political heirs of Nixon, that twisted man, are with us to this day. It's time to root them out.

You're on one side or the other. There's no middle ground.

Sebastian, if you're still trying to parse the difference between Bush and Clinton, there's your razor.

Thanks -

Y'know, I've known some serious drinkers in my time, but never one who described alcohol as their self-interest...

Great post.

One disagreement (which doesn't affect your larger point, I think): I don't think you need to say that "man is, sadly, bad, or that "we are congenitally incapable of policing our actions in the heat of the moment." All you really need to make your larger point is the claim that we have enough of a tendency to behave badly, abuse power, etc., that it's deeply unwise to rely entirely on people voluntarily doing the right thing. (Especially since 'the heat of the moment' can prevent us from so much as identifying the right thing correctly.)

I think it would be nuts to rely so heavily on our own ability to police our actions that we dispensed with the actual police. But I think it's important not to say that we're incapable of policing our own actions. That lets those who don't do the right thing off the hook, and probably also gets in the way of acknowledging the extent to which laws not only are necessary to a decent society, but rely on our decency in return. (Or so I've always thought: if the only thing keeping us in check was fear of arrest, if no one managed to police their conduct on their own, then I think we would be ungovernable, except perhaps by dictators and thugs.)

Still, I'm in complete agreement with everything else. I hadn't thought of it that way, but it makes a lot of sense.

Now this is what original construction should be.

In particular, I think the scandal is an indictment of far more than the Bush administration alone, but instead extends to large chunks of modern conservative ideology as well. In this sense, limiting the critique to DOJ or Rove or even to the “rule of law” misses the forest for the trees.

If my critique of the Bush administration could be expressed in a single sentence, it would be this — they ignore and attack restraints on their power.

...

The uniquely Republican problem here is that (Robert Bork – note the irony) Republicans have become politically supportive of efforts to ignore or remove these restraints.

I'll agree with you about every particular problem you have identified, but I won't agree with you at all that it is a Republican problem (yes I know you are surprised). This particular manifestation of it is clearly a Republican problem, but that is only this particular manifestation. The progressive anologue is the destruction wrought on the role of the judiciary vis-a-vis the Constitution. The Constitution has been transformed from an actual guiding document into an excuse for judical law-creation--so long as progressive thought controls in the judiciary--otherwise we threaten court-packing.

The abandonment of discernable and even mildly predictable jurisprudential rules is exactly the kind of thing you are talking about when you say (correctly) about the Bush administration that "they ignore and attack restraints on their power". Liberal court heros like Brennan saw restraints on their power to get what they want out of the Constitution and ignored them while using bankrupt intellectual games to corrode the traditional limits. Their error was in thinking that the attack on judicial limits and the freedom from the text of the Constitution could only work in their favor--instead of being a tool that once set free could work against their desires.

It is the same mistake that Bush supporters make.

As for Democrats and checks on their power, see my next post.

I'll agree with you about every particular problem you have identified, but I won't agree with you at all that it is a Republican problem (yes I know you are surprised). This particular manifestation of it is clearly a Republican problem, but that is only this particular manifestation.

Agreed. Think of it like an economic problem -- free enterprise with only two sellers. Monopoly is like monarchy, they can do anything they want up to the point people are ready for open armed revolt.

Duopoly isn't that much better. As long as the only thing Democrats need to do to win is be better than utterly-corrupt Republicans....

If all that utterly-corrupt Republicans need to do to beat Democrats who're almost as bad is to cheat....

Election reform is vital. We desperately need to arrange the elections so that third parties have a decent chance. Something like IRV. You vote for your first, second, third, and fourth choices. If your first choice comes in last then your vote counts for your second choice. If the second choice comes in last then your vote counts for the third choice. So you can vote for a third party -- and a fourth party -- and your vote still counts.

If even 10% of the seats in Congress were held by libertarians we'd be in a completely different place. It wouldn't be Democrats expanding government while Republicans complain and then Republicans expanding government while Democrats complain. The libertarians could join whichever side is losing at the moment to push back against abuse.

Sebastian, from what you've said, you ought to be a libertarian. You don't belong in the GOP. The problem is that with only two choices you have no adequate choice. It's like -- it's like being stuck in eastern europe during WWII. Do you support the germans or do you support the russians? And as a german supporter you're stuck arguing that the russians are almost as bad.

That's why you've been sounding so crazy! It's like, you've been saying "We have to look at the long-term problem" while everybody else is saying "We have to beat the germans, that's the first priority".

The long-term problem we have is that the GOP is no longer even an adequate opposition party, and even if they were, it isn't enough to have one minority opposition party.

The GOP has been losing support fast, and the democrats haven't been gaining what republicans lose. A whole lot of people who wanted the GOP to be the party of small government are lost to the GOP and they don't see democrats helping them either. It's like being a libertarian in eastern europe in 1943....

I've been supporting democrats mostly because the alternative is so bad. The Democratic Party doesn't seem to stand for anything any more, and many of the details of what it used to stand for -- labor unions etc -- don't mean much to me. The GOP no longer stands for anything but raw power, like the Party in the novel 1984. Support one of these as your only way to oppose the other, and where does it get you?

How can we push election reform past these corrupt agents? I want you to vote libertarian and not throw your vote away. I want Libertarian candidates to win in at least 30% of Republican strongholds. And I want a fourth party to make inroads on the Democrats. Probably Greens, I've met Greens I'd vote for.

Imagine if Congress was:

35% democrat
30% libertarian
20% republican
15% green

Wouldn't we be better off?

The systemic problem is duopoly. Vote for the second-worst candidate and the government keeps ratcheting down worse and worse. It doesn't work to argue that the problem is systemic and that temporarily demolishing the GOP isn't enough.

It's necessary to actually improve the systemic problem.

J Thomas: We desperately need to arrange the elections so that third parties have a decent chance.

Actually, you also need to arrange the elections so that they're honest and the representative the majority of voters selected actually gets to take up the position. The concept of elections where the results are close, no recount is permitted, large numbers of votes aren't counted at all, and your ability to vote and have your vote counted depends on where you live - it all adds up to something very like the way elections used to be in the 18th century in the UK. In the current US system, the politicians currently in power get to run the election that may unseat them. No wonder incumbents tend to win!

I agree that IRV would be a better system than first-past-the-post - though there are other systems of voting reform that could be examined. But first and foremost, the US needs to have honest elections in which a person can vote and have their vote counted.

Jesurgislac, yes, a system where incumbents get to falsify the vote is beyond travesty.

But a fair system where you can only choose the second-worst candidate is not improvement enough. We need both.

IRC or any of its close relatives would be fine. If you have a good alternative that's significantly different I'd like a link. If it comes time to choose among IRC or the various Condorcets etc, we could perhaps let voters rank their choices and then apply all the methods, and without excessive bad luck they'll probably agree. I like IRV because it's easy to explain, but any of the similar choices would be fine.

I would like to see something like IRV for Democratic Party primaries etc. By all accounts it results in less acrimony, and that would be a good thing for primaries -- if the primary winner got 89% of primary votes while the first runner-up got 85% and so on, then they can all shake hands and get to work campaigning for the big election.

If you have a good alternative that's significantly different I'd like a link.

Well, in the UK, while national elections are first past the post, in Wales and Scotland voters in their elections for Assembly/Parliament get two votes.

One vote is for the representative of their constituency, and this is counted first-past-the-post. The other vote is for a party: each party can submit a list of candidates for their region. (Wales and Scotland are divided up into large regions that comprise multiple constituencies.) Each region sends (8, I think) party representatives to the assembly/parliament. If the Conservatives (for example) get 50% of the list votes for a region, the first four candidates on the Conservative list for that region get to become representatives. If the Green party gets 13% of the vote in a region, the first candidate on the Green list gets to become a representative from that region. So in Scotland and Wales, people can get to vote both for an individual they like who they feel represents their constituency well, and for a party that they want to have power in their assembly. This works so well to put minority party representatives in, that it's no wonder the UK government hasn't adopted it for Westminster (cynically)....

Similar in Germany. 1 vote for party (all votes are pooled and seats distributed according to percentage), one for candidate (local winner takes all) with a few special modifications. Parties with less than 5% of total votes are not considered when the seats are distributed but if they win three seats through candidates they are given some extra seats (this helps parties that have mainly local support or don't run in all states).
In case of a strong gap between party and candidate success a complicated (nonpartisan) system of balance is applied to even it out to a degree.
Neither head of state (president) nor executive (chancellor) are elected directly. The chancellor is elected by (federal)parliament and can only be ousted by electing a new one (constructive vote of no confidence). The president is elected by an assembly consisting of the members of the federal parliament and an equal number sent by the state parliaments.
There are usually 3-5 parties in federal parliament (2 big, 1-3 smaller) and most of the time a 2-party coalition is in power.
It's far from perfect but usually works within tolerable limits. If transferred to the US, it probably would not work.
The system was designed to spread the power without allowing splinter groups to sabotage it from within (as in the Weimar republic).

Wouldn't we be better off?

It's not immediately evident to me that we would be better off. We'd have a Congress that would be substantially weaker vis-a-vis the Executive.

Liberal court heros like Brennan saw restraints on their power to get what they want out of the Constitution and ignored them while using bankrupt intellectual games to corrode the traditional limits. Their error was in thinking that the attack on judicial limits and the freedom from the text of the Constitution could only work in their favor--instead of being a tool that once set free could work against their desires.

Says you. Some people believe, in good faith, in the vision of individual liberty against undue intrusions of the state, deriving from the 14th amendment, as set forth in cases like Loving. Say we're wrong all you want. Call us hypocrites, though, and expect to be asked to show some proof. Here, it's proof that Brennan did not believe in the opinions he wrote.

The only bankrupt intellectual game I'm seeing is the continued insistence that the other side cannot possibly believe as it says it does, because, well, it just can't.

Here's an easy target for you: I think Loving was correctly decided, and I think that it's logic conclusively requires that state restrictions on the marriage of people of the same sex be stricken. I know you don't agree with me about the second point but I also know that you have no business at all saying that I don't/can't believe in the second point.

SH wrote: The progressive anologue is the destruction wrought on the role of the judiciary vis-a-vis the Constitution.

The Fifth Amendment states: No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Bill of Rights is deliberately anti-majoritarian. The Constitution was written by and voted on by a tiny fraction of what would be the modern electorate. Anybody see a problem in relying on original intent in determining the scope of review of acts of the majority? So what is the appropriate lens to determine what the word "liberty" means? As Scalia himself has admitted, there is none. Relying on the accumulated wisdom of prior judges (eg, precedent) is about a good a way as any.

The existence of the BOR and the concept of judicial review has always meant that we citizens are subject to the tyranny of the Rule of 5. But it's also worth noting that the Court, recognizing its anti-majoritarian power, continues to establish limits on those actions of the majority that it will seriously review.

not everything is about Roe v Wade (which didn't arise in a vacuum -- even Griswold cited precedent). Democratic corruption used to be worse than Republican corrupton (Rostenkowski). But that was legislative corruption. This Nixonian assertion of executive power, not subject to review by the courts or the legislature, really is a serious challenge to our notions about the rule of law.

"Wouldn't we be better off?"

It's not immediately evident to me that we would be better off. We'd have a Congress that would be substantially weaker vis-a-vis the Executive.

You could be right. With a collection of Libertarians always ready to back bills that limit government power over individuals, and a bunch of Greens always ready to back bills that limit corporate power over government, Congress might not be that weak relative to the Executive. I can imagine arguments either way. I think we should try it and find out.

But I'd like to see it done in primaries first. I think a party which did that would get an advantage, and if I'm wrong about that it would give me a chance to rethink.

"The Bill of Rights is deliberately anti-majoritarian. The Constitution was written by and voted on by a tiny fraction of what would be the modern electorate. Anybody see a problem in relying on original intent in determining the scope of review of acts of the majority?"

The Bill of Rights isn't deliberately anti-majoritarian on everything. It is anti-majoritarian on some things. It isn't as if there is an anti-majoritarian clause where the Constitution protects the minority from majority opinion on everything.

The rest of your argument is an argument against bothering with the written Constitution as it exists at all. Which is fine to argue, we just shouldn't pretend it is a Constitutional argument at that point. It is an anti-Constitutional argument. But I do think you get at something which is common in liberal circles--the Constitution just isn't enough in its current form. My response to that is--amend it or have a Constitutional Convention and chuck the whole thing.

With an alleged authorization for expansive judicial decrees in virtually every area, I don't see why the founders bothered having an amendment process. It has long since gone past the point where you can use penumbras to justify anything. The judicial review power was traditionally checked not by overt limits, but by extreme deference to the legislature in most issues. That is exactly the kind of thing that has been subject to "they ignore and attack restraints on their power." They didn't like being limited to striking down laws that actually conflicted with the constitution, or actually conflicted with the basic historical rights protected in the United States, so they made them up. They didn't like being limited by things like the takings clause so they ignored it. Modern Constitutional interpretation isn't about looking anywhere near the Constitution on things--it is about guessing what will please 5 members of the sitting Supreme Court. 30 years of playing that game have left liberals with a distinct lack of strong arguments against Bush's adoption of their own techniques. He uses it to pervert the Constitution in ways they don't like, but he is using the tools that they gave him. Why shouldn't habeas fall to emmanations of the amorphous executive power? According to Marshall the death penalty is always "cruel and unusual punishment" even though the Constitution specifically lays out the procedure for captial crimes. Why shouldn't the specific fall to the general--in direct contradiction to both historical methods of jurisprudence where the specific always beats the general?

Say we're wrong all you want. Call us hypocrites, though, and expect to be asked to show some proof. Here, it's proof that Brennan did not believe in the opinions he wrote.

Why would I need to do that? Intellectuals are brilliant at fooling themselves. I'm certain Brennan never believed he was doing 'wrong'. Rationalization is easier when you are smart, and I'm certainly not calling him an idiot. I just saying that what he did wasn't 'judging'. What he did wasn't 'interpreting the Constitution'. His actions make that very clear, however he justified it in his head. I'm not charging him with being a hypocrite, I'm saying he was wrong in his exercise of power, and that the intellectual justifications he used to rationalize that exercise of power are now being used by the side of the argument he doesn't like.

In particular, I think the scandal is an indictment of far more than the Bush administration alone, but instead extends to large chunks of modern conservative ideology as well.

This isn't even remotely justified by anything in the rest of your post. You've pointed out that specific self-identified conservatives have gone overboard in certain areas. True enough -- I actually agree with most of what you've said -- but this is precisely becuase I believe in "conservative ideology" about the importance of limited government.

So -- how does unlimited executive power in any way disprove the traditional "conservative ideology" of limited government? Square that circle, if you can.

the intellectual justifications [Justice Brennan] used to rationalize that exercise of power are now being used by the side of the argument he doesn't like

This I'm not seeing. What exactly are you talking about? If it's 'the intentional invention of constitutional principles out of whole cloth' than we'll have to agree to disagree on whether that is even remotely accurate as a description of the Warren court's jurisprudence.

Look, I infer from your various writings on this subject that you don't approve of the reasoning behind Gibbons v. Ogden or M'Cullough v. Maryland. That's fine, I guess, but you shouldn't then say that your problem is with liberals, Justice Brennan, or 'the last 30 years.'

Y'know, I've known some serious drinkers in my time, but never one who described alcohol as their self-interest...

Posted by: Anarch | March 28, 2007 at 01:50 AM

"Every man should believe in something. I believe I'll have a drink."
W.C. Fields


For people who don't know, the right that Brennan is said to have rationalized into existence is the right to privacy. The relevant quote is, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Rather libertarian, actually. As I've remarked before, it's difficult for
me to see how one can reasonably devise ethics or laws based on individual rights that does not respect a person's control over their own body--if that does not exist, what is left?

And, really, Sebastian, there is no reason I am aware of the believe that Brennan was a pious hypocrite. This is unlike the W. Bush administration, whose contempt for law is clear.

John Doe. Note the difference between the words "modern" and "traditional."

I believe in "conservative ideology" about the importance of limited government.

So, you must utterly repudiate the GOP as it currently exists. It is your worst enemy.

And the Democratic Party is not much better. It makes sense to attack the GOP harder than the Democrats at the moment because the GOP is still in control of the administration and is doing horrible things, but getting them out of there won't help nearly enough.

You *need* a viable Libertarian Party. You'll never get control of the GOP. They'll use you like they use fundamentalist christians. Trusting them is like being in romania in 1942 and trusting the germans to protect you from the russians.

Stop trying to protect the GOP. They're your enemy. Work toward viable Libertarian party. The GOP deserves to be a third party, or a fourth party, or maybe a fifth party. Maybe the democrats do too.

I'm with CharleyCarp: I would like to see an explanation of the charge of hypocrisy against Brennan. To my mind, "he's smart enough to convince himself" doesn't really cut it -- that's a perfectly good thing to say given some reason to think that no one could possibly think what Brennan thought unless she was kidding herself, but without that, it seems to me on a par with "Oh, Sebastian, you can't really believe that; you must be secretly motivated by a desire to defend Bush (or whatever.) I protest that line of thought when it's deployed against Seb, and I don't really care for it deployed against Brennan either -- again, assuming the absence of the supporting explanation of why no one who wasn't self-decieved could possibly believe X.

Plus, since CharleyCarp has offered himself up as an easy target, why not use him?

How did hypocrisy get into the mix here? It's certainly not necessary.

Seems to me that Sebastian is setting up two parallel propositions:

1. Bush has sought to expand executive power at the expense of other branches of government.

2. Brennan (and Douglas, BTW) sought to expand judicial power at the expense of other branches of government.

Who cares whether any hypocrisy is involved? Aggrandizement of power is bad only if it's hypocritical as well?

I'm going to quote my old weblog on some of these things:

I've been engaged in quite a few discussions about various facets of the legal system lately. Since ideas make better sense within a context, I think it would be a good idea to discuss my understanding of how the general system of creating laws works (or maybe ought to work) in the United States.

I don't claim any of these ideas are original.

The US legal system is broadly constructed of three branches: the legislature, the executive and the judiciary. Initially I want to discuss how they function without reference to the Constitution.

The legislature is generally forward looking. It sets the rules for the future. It codifies future policies and shapes the direction of law by creating new law, overruling old law, or by repealing old law. For example the California legislature might pass a law specifying the particulars of the offense of rape. It might separately pass a law specifying the offense of illegal dumping of chemicals. It might also pass a law specifying how one can get college grants from the state. Legislatures are the branch that makes policy changes.

The executive is the instrument of enforcing laws. It hires the police that make arrests when the criminal laws set by the legislature are violated, it hires the prosecutors who prosecute such cases, and it hires the grant administrators that follow the laws determining who gets college grants. The executive branch is often the scariest branch for those who distrust the government because it has the physical force to do things. Sometimes the legislature delegates its authority to make policy changes to the executive. This typically takes place in hyper-technical fields like environmental policy.

The judiciary is the check to insure that the correct laws are applied with the correct interpretation at the correct time to individual cases that come before it. It is the most backward looking of the branches. Its job is to apply the current law to past events which have come to its attention. For instance in a criminal trial with facts including non-consensual sex it applies the laws that the legislature passed on rape to the facts of the past events which the prosecutor has brought to its attention. If the prosecutor tries to apply college grant law, the judge will rule it inappropriate. If the prosecutor tries to apply murder law, the judge will rule it inappropriate. If the prosecutor applies rape law, the judge will follow apply the rules of rape law to the case and determine an outcome. (I will presume for the moment that the accused has waived his right to jury trial.) The focus of a judge is primarily in the past. He looks at past legislative acts to determine the current law. He looks at past judicial decisions on that law to act as a correction on his personal interpretations. He applies that law to past events which have been brought before him. In ambiguous cases he must try to interpret past legislative acts to apply them as best he can to the facts before him. This interpretation follows certain rules which are intended to tease out the meaning from the statute. Ultimately the judge is supposed to tie his decision closely to the rules adopted by the legislature. He is not empowered to make policy judgments. He is not generally empowered to make new rules. He is to read the law, find which laws cover the situation at hand, and apply them as best he can. I sometimes call the judicial power "The Power That Preserves" because its power is to preserve the force of the law until an authorized party changes it. That keeps the power to change things firmly in democratic hands.

If the law itself is to change, the legislature is empowered to do that. The judge must work with the facts he is given and the law he is given until then.

The legislature makes the rules, the executive enforces the rules, the judiciary applies the rules.

The Constitution adds a secondary layer to these operations. It acts as a form of meta-law. It sets down the ground rules for lawmaking. Legislatures, executives and judiciary members are to act within its bounds. The interaction between the judiciary and the Constitution is exactly the same as it is for legislative law--a judge is to look at the Constitution and apply it to the facts in front of him. The Constitution has a process for change--it allows amendments using what is in effect a legislature of the states. They may make forward-looking policy changes by amendment.

The power of the judiciary is exhibited by its ability to nullify laws which transgress the bounds of the Constitution. This, like interpretation of non-Constitutional law, presupposes that the law exists, that it means something, and that the something which it means is knowable.

Please note that I specifically do not say that the judiciary is empowered to protect minority interests. It is empowered to enforce Constitutional boundaries on lawmaking. Many of those are written by the Constitution writers or amenders to protect minority interests. Many are not. The protection of minority interests as a general concept is not within the legitimate power of judges.

When the Constitutional system works, legislatures pass laws, executives enforce laws, and judiciaries interpret the interactions between laws and the boundaries of the Constitution.

There is a weakness in the system. The weakness is in the word 'interpret'. I am not going to outline my exact understanding of how interpretation ought to work until a later post in a day or two. But I want to point out the weakness.

If interpretations are too narrow, the Constitution ends up not applying to real life. For instance if you interpret 'search' to protect only against those types of searches which were known to the founders, you allow all sorts of invasive police techniques to occur wholly without Constitutional protections.

If interpretations are too broad, the Constitutional boundaries become extenstions of the whims of the judges. They expand and contract based wholly on the poltical (as opposed to judicial) pronouncements of the judges. This creates crazy situations where a judge like Brennan can contract the historical understanding of unprotected obscenity into near non-existance, but we can also have severe limits on campaign speech even though political speech has always been understood to be at the heart of First Amendment speech protections. The parallel to my example above would be to expand 'search' to include going through public data or utilizing public observation. Requiring a search warrant based on probable cause for those types of activities would render police work nearly impossible.

Theories of interpretation may be difficult to enforce in our system, though I believe that allowing impeachment to follow almost completely into disuse is part of the enforcement problem. But an understanding of what is proper and what is improper in interpretation is at the heart of the legal order. Too strict a theory of interpretation and the Constitution falls into disuse as unforseen problems swamp it. Too loose a theory of interpretation and the Constitution becomes a mere symbol of judicial authority. It doesn't really mean anything, it is just used as a prop to justify the judiciary getting whatever result it wants.

That is the how I see law functioning in the US. It is why I consider the problem of interpretation as being central to the smooth functioning of the Constitutional order.

Note 1: I'm aware of 'common law'. It doesn't affect much law in the US anymore because most of the large states have codified their law (overruling it and/or making it static) and there is no federal common law. I will mention that common law did not allow for nearly as much free-form judging as many people assume. The whole concept of common law is to use legal traditions in a systematic fashion. It was about preserving legal traditions not about creating new law.

Note 2: The constitution gives some of the powers which I have labelled 'legislative' to the Executive Branch. Especially in the area of foreign policy.

Note 3: I'm not dodging the hard question of what makes proper interpretation. But I want to talk about the easy stuff first. Maybe I should say 'easier' stuff.

Note 4: Technically I cheated when I say that legislatures are forward looking by nature. The Constitution makes ex post facto laws out of bounds. Legislatures can't make past actions illegal because the Constitution says so. It would have interrupted the discussion with a digression to make that clear at the beginning. I hope you can forgive me.

Note 1 requires further clarification. Technically there are some small areas of federal common law, but when people invoke "common law" practices in Constitutional contexts they are almost never talking about those areas.

In any case, modern liberal jurisprudence has broken this system by reaching beyond the Constitution to get its favored results. It has used a concerted effort to "ignore and attack restraints on their power"

An example of that is indeed Brennan and Marshall on the death penalty (I'm intentionally avoiding Roe v. Wade). Katherine summed up the argument well in a previous comment two years ago. I'm not picking on her--I think her comment fairly represents the typical liberal train of thought on the matter when it is pointed out that it is surprising to find that the Constitution outlaws the death penalty when the Fifth amendment talks about protections when a citizen is charged with a capital crime:

Just for old time's sake: The Fifth Amendment quite clearly does not expressly say that the death sentence is constitutional. It says that you have a right not to be executed without due process; it does not say that you have no right not to be executed with due process--to read it to say that would directly violate the Ninth Amendment. The phrasing of the Fifth does clearly show that the founders thought it at least possible that the Eighth Amendment would not be interpreted/applied to forbid the death penalty. Maybe they even assumed it would not be. But many of the ratifiers of the Fourteenth Amendment assumed that it would not be interpreted/apply to overturn segregation laws, and most assumed it when it came to miscegenation laws. Those assumptions are not binding.

The problem here is that the same style of logic is exactly what we all hate about the Gonzales.

GONZALES: I will go back and look at it. The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

There is no express grant of a Habeas right, and just because the Constitution provides a method of suspending habeas corpus in certain circumstances, doesn't implicitly show that there is such a right. The logic is ridiculous under any normal textual understanding. But it is NOT ridiculous once you have set up an intellectual framework where the broad and general powers (in this case Presidential powers) get to over-rule specific narrow portions of the Constitution.

The intellectual arguments which defended Marshall and Brennan's ridiculous rulings on the death penalty are now being used to destroy the habeas right. All of you here are absolutely correct that the Gonzales position is intellectually bankrupt. What you don't seem to realize is that it is bankrupt in precisely the same way as much of modern liberal jurisprudence.


Seb -- if my previous comment came off as snippy, it wasn't meant to. Just bad thought-to-actual-written-words interface.

Anyway, Sebastian, aren't you fighting last decade's battles? If all libertarians joined the Democratic party tomorrow, it would not shift the judiciary back to a stance of expanding Constitutional protections beyond the text anytime soon, and probably never. If anything, the problem with the current judiciary is the opposite: it refuses to recognize protections grammatically or very strongly implied in the text -- e.g., by making the warrant requirement nearly a dead letter, by finding ways to ignore habeas suspension, etc. I would think that a libertarian would find these tendencies, which are driven entirely by Republican appointees, at least as disturbing as Brennan's expansive readings.

But since the judiciary is much slower to shift than the executive, why are you focusing so much, this decade, on securing the judiciary? The Warren Court methodology is already gone, the substantive Warrent Court innovations have either been overturned or whittled down, and are mostly pro-liberty in their effect anyway (e.g., Roe, Brown). And the judiciary is the weakest branch -- it can only deal with cases that come to it. Isn't the threat of executive tyranny much more pressing and grave? Why are we even talking about the judiciary?

I know your original point was that we liberals have only ourselves to blame if the executive ignores the Constiution's text. Given that overreach of executive authority began at least with the Louisiana Purchase, and that Congress passed the Alien & Sedition Act even earlier, I find the idea that authoritarians in the other two branches needed liberal judicial activism to inspire them dubious, to say the least. But even if it were true, it's a pedantic bit of snark that does not help in the least to deal with the problem we now confront.

In short, I don't really care if Bush got his ideas from watching Brennan (a bizarre notion on its face), from reading about Lincoln (ditto), or from kegger-party chest-pounding (my personal guess). I care about stopping him.

I don't see the connection between noting that the 5th Amendment does not explicitly prohibit the death penalty and a claim that the same reasoning can conclude that the Constitution does not explicitly grant habeus corpus rights.

The grant of habeas is a default position. Habeas has been the foundation of western jurisprudence since the 14th Century. I doubt it occurred to the Founders that they had to explicitly "grant" habeas any more than they would have to explicitly "grant" that property belongs to whoever holds the title deed.

The death penalty is not a default position; it is not assumed that every crime carries the death penalty, nor that every conviction will demand the death penalty. The dealth penalty is a specific penalty, prescribed under specific conditions, and the conditions must therefore be described.

In the absence of a specific, explicit prescription for the death penalty, it must be assumed that the death penalty is not levied because the death penalty is not the default.

But habeas is the default. In absence of a specific grant, in other words, one cannot assume the absence of habeas.

I'm curious: can anyone point to a significant branch -- that is, significant both in numbers and political clout -- of modern conservatism which was genuinely concerned with smaller government as opposed to reprioritizing its expenditures? I mean, I'm not even convinced that Grover Norquist et al. are genuinely interested in shrinking the size of the government ("drown it in a bathtub notwithstanding") since he and his ilk are also cheerleading an expansion of the military, the police, the prisons, etc.

IOW: Yes, I'm aware it's a rhetorical stance; is it actually a political one as well?

Seb-

This, I think, is well said:

If interpretations are too narrow, the Constitution ends up not applying to real life. For instance if you interpret 'search' to protect only against those types of searches which were known to the founders, you allow all sorts of invasive police techniques to occur wholly without Constitutional protections.

If interpretations are too broad, the Constitutional boundaries become extenstions of the whims of the judges. They expand and contract based wholly on the poltical (as opposed to judicial) pronouncements of the judges.

The problem with your application of this very reasonable statement is that you're assuming that the judicial opinions you disagree with are self-evidently 'too broad', and that anyone who doesn't disagree with the same opinions supports lawmaking based on the whim of a judge. I think pretty much everyone arguing in good faith would buy into the statement I quoted, we just disagree with you factually about where the 'too narrow/too broad' line is drawn in each case.

"The death penalty is not a default position; it is not assumed that every crime carries the death penalty, nor that every conviction will demand the death penalty. The dealth penalty is a specific penalty, prescribed under specific conditions, and the conditions must therefore be described."

And they were in fact described. Which is why it is illegitimate to say that the 8th amendment instructs the Supreme Court to throw out all death penalty cases as unconstitutional. Even allowing very broad ambiguity in language--whatever the 8th amendment means, it cannot mean that the death penalty is broadly unconstitutional.

You can't use ambiguity in a broad section of the Constitution to overrule a specific section of the Constitution. Even if you allow for changing meanings of the broad and allegedly ambiguous section, it can't legitimately change enough to overrule other specific sections of the Constitution.

Gonzales attempts to use a broad interpretation of the sort-of ambiguous Constitutional grant of Presidential powers to overrule the very specific language oulining the process of suspension of habeas corpus. He also argues that outlining a procedure for the suspension of habeas DOES NOT imply that the Constitution really provides a habeas corpus right. That argument is an illegitmate Constitutional argument because A) the specific rules over the general in statutory construction, not vis versa, and B) of course if the procedure to suspend habeas corpus is outlined it is implied that the right to habeas corpus exists.

Gonzales is using the exact same intellectual tools that Brennan and Marshall use to argue that the death penalty is unconstitutional. They argue that the general overrules the specific in the same document and they argue that the existance of protections and a procedure regarding the death penalty does not demonstrate that the that the death penalty is implicitly constitutional.

I have a specific textual argument in the Constitution backing up my interpretation of the Fifth and Eighth Amendment.
The Fifth Amendment implies that they didn't think the death penalty was NECESSARILY unconstitutional--probably the opposite-- but if you're not an originalist their expected application of the Eighth Amendment is not binding. And you do not read a rights-granting provision to REQUIRE a rights-denying interpretation of another constitutional provision, because of the Ninth Amendment.

Could you explain to me the comparable textual justification for Gonzales' position? There's no clause saying that you can't construe the enumeration of certain rights to imply the existence of other rights.

1. Judges make mistakes. Shall we start parsing the record for all the dumb things written by "conservative" justices?

2. Much of what is written about the liberal movement at the Sup Ct in stopping the death penalty is mischaracterization. While there is plenty of language to suggest that certain justices believed that the death penalty was per se unconstitutional, there is plenty more language that states that it was the manner in which the states applied the death penalty that the justices felt violated principles of the 5th and 14th amendment.

Given the statistical evidence on how the death penalty is still applied today, they may have had a point.

3. The notion that Brennan "knew" that his method of constitutional interpretation was "illegitimate" but did it anyway is nowhere supported in any writings that I'm aware of.

frex, Brennan himself said that perhaps his single most important decision ever was "one person, one vote". Is that concept a reasonable application of the equal protection clause? How can you tell? What tools do you bring to analyze the question?

Unfortunately the statement that habeas corpus is default and the death penalty is not is wrong historically (although I wish it were true). Historically habeas corpus is a rather new idea while the death penalty is at least as old as written law and probably as old as the idea of fixed law (i.e. a set of rules that is considered valid for a group of humans).
My personal opinion (correct me, if they actually did discuss it)is that the founders took the death penalty as natural part of law and had about as much reason to talk about abolishing it as talking about regulations for nuclear power plants (i.e. neither would have occurred to them).
From todays point of view the death penalty is just a detail and few would think it unthinkable to be without it (independent of considering it useful or not) while habeas corpus (or what the "commoner" understands of it) seems fundamental to our idea of justice. We should therefore neither try to project our own views on the founders and thus making them sacrosanct nor pretend that nothing changed since the constitution was written. The text is under severe strain anyway (and the repair method od amendments effectively both broken and of limited value long-term). One should at least think about dropping the idea of a "sacred text" (something the founders clearly did not intent) and either consider writing a new one (and give The People enough time [a decade or so] to examine it) or make changes easier first of all by going from "amending" to exchanging text and reserving the difficulty of change to the Bill of Rights (and shifting it up to the front instead of the appendix).

I'm curious: can anyone point to a significant branch -- that is, significant both in numbers and political clout -- of modern conservatism which was genuinely concerned with smaller government as opposed to reprioritizing its expenditures?

I can't. I meet lots of republicans who want smaller government.

They are not actually represented by the GOP and as far as I can tell they never have been since 1980 at the latest. Before that my memory is fuzzy. Did Nixon work toward small government? I don't think so. Eisenhower? Maybe, kind of. Hoover? It was a different era. Kind of. Coolidge? I think so, but I don't really know.

Small-government conservatives have had no one to vote for, for at least the last 27 years. Except maybe Perot. Or perhaps some of the candidates who didn't get elected, maybe they would have been good.

A great big constituency that keeps voting Republican even though the GOP never gives them anything. Because the GOP at least talks nice to them. Kind of like the black vote mostly goes Democrat without much reward, because the alternative is the former Dixiecrats' party.

These people deserve a chance to vote Libertarian without throwing their votes away. The country would be a whole lot better off if the Libertarian party was the second party and the GOP was a third party.

The text of the Ninth Amendment, just for the record, is:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

As far as I can see, Sebastian is using the enumeration of the right not to be deprived of life, liberty, or property without due process to narrow the right against cruel or unusual punishment.

You could see this as question-begging: assuming that the death penalty is cruel or unusual, when that's precisely what's at issue. I'm actually not saying that. I'm simply saying that the Fifth Amendment should not be read to narrow the Eighth Amendment. If the death penalty otherwise fails the Eighth Amendment test, you can't use the Fifth Amendment to pass it--which is essentially what Sebastian does by saying that the Fifth Amendment by itself disproves Brennan's and Marshall's arguments that the death penalty is cruel and unusual.

Gonzales is arguing against an individual right that's clearly implied by the constitutional text. The Ninth Amendment does NOT require this; it's directly contrary to the purpose of the Ninth Amendment.

Hartmut, habeas corpus is not as old as execution but it's 800-odd years old, and it's in the main text of the Constitution, not an amendment. Jefferson wanted to make it impossible to suspend under any circumstances...

More to the point, habeas is required by the constitutional text; a death penalty is not. What you have are clauses that imply that they expected the 8th Amendment not to be intepreted to forbid the death penalty. But I don't think the original expected application of the text is the same as the meaning of the text, and I don't think it's binding on future generations. People didn't expect the 14th amendment to be applied to forbid anti-miscegenation laws; does that mean Loving is wrongly decided.

Brennan and Marshall have a colorable textual argument; Gonzales doesn't.

Random question before I head out: does anyone know the origin of the word "colorable" in a legal setting? I keep seeing Katherine, von and Sebastian sitting at home with their big Crayolas trying to stay within the lines of the Constitution...

"As far as I can see, Sebastian is using the enumeration of the right not to be deprived of life, liberty, or property without due process to narrow the right against cruel or unusual punishment."

No. I'm saying that the 5th amendment clearly implies that the ambiguity in the 8th amendment does not extend indefinitely to encompass the death penalty.

You don't make a procedure for something if you think that it isn't permissible. You don't make a procedure for suspending habeas corpus unless you textually imply that there is a habeas corpus right to be suspended.

You don't make a rule requiring certain procedures for capital crimes without textually implying that prosecuting capital crimes can be Constitutional.

You don't make a rule requiring certain procedures for capital crimes without textually implying that prosecuting capital crimes can be Constitutional.

Sebastian, I agree -- but so did the Warren/Burger Court. Furman and the other death-penalty decisions imposed considerable procedural restrictions on states' abilities to impose the death penalty, but they simply never said that the 8th Amendment forbids execution of criminals. Yes, some of the Justices wanted to go that far, but they never got a majority. Their dicta and concurring and dissenting opinions were (literally)inconsequential.

Unlike, say, Gonzales & Yoo's advice to the President.

J Thomas- I am a former libertarian, and almost pessimistic enough to agree with you, but hopefully we will end up better served with the Republican party as the recognized party of evil people.

Seb's argument presumes that the Framers intended their personal understanding of what is "cruel and unusual" to be fixed for all time. This is not a self-evident proposition.

I could equally well conclude that whatever else the Eighth Amendment was intended to mean, it was intended to mean that the definition of "cruel and unusual" should not be determined simply by majoritarian processes - else, why have a constitutional amendment at all?

Frank, I'm fine with having the GOP be the recognised party of evil people, but I also want it to be a third party or fourth party.

What happens when the Democrats are running the government and doing bad things? Can we side with the Republicans to stop it? No, more likely the Republicans will be preparing for something like 9/11 to bring them back in power, and then when they get in power they'll do stuff that's even worse and say "See, the Democrats did it too!".

We can't depend on Republicans to oppose any kind of evil from Democrats. The most we can expect from them is to publicise Democrats in scandals. We need a second party, and they aren't it.

Small-government conservatives are the biggest disenfranchised group I see. They deserve to have a political party that represents them.

"Seb's argument presumes that the Framers intended their personal understanding of what is "cruel and unusual" to be fixed for all time. This is not a self-evident proposition."

I'm not saying that at all. I'm saying that the ambiguity in the phrase is not infinite and that the allowable change is not 100% elastic. It is a completely normal part of statutory construction to observe that vague and/or ambiguous general principles don't get stretched far enough to defeat specific and narrow questions in the same document.

For example, the Constitution says: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

It also says: "The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:"

Now some judge may feel that it is completely obvious that insuring domestic tranquility would be better served by having fewer elections. That doesn't mean that it could ever be legitimate interpretation to use "insuring domestic tranquility" to change the Presidential term to 6 years.

The Constitution says: "The President shall be commander in chief of the Army and Navy of the United States"

The ambiguity of "commander in chief" ought never be stretched to defeat "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

For me, the death penalty issue is resolved by an analysis like Steve's. I don't think that the precise factual contours of words like unusual, cruel, reasonable, were fixed on the day that the Bill of Rights was adopted (or imagined). Rather, like 'necessary and proper,' I think these are terms that have both a past and a current context. Remember, it is a constitution we are dealing with here.

It doesn't mean that the words can mean anything 5 people says they mean -- it does mean, though, that in some cases, the Founders built social context into the document. I believe this. I don't ask you to agree with me. I do ask that you stop calling people who say they believe this liars. (Do you not understand that you are doing this?)

My Loving example, I think, illustrates another important point. i'm quite sure that in 1868, no one who wrote or who ratified the 14th amendment was thinking about abolishing gender restrictions on marriage. They did however, by the language that they used. No, the federal judiciary hasn't recognized this yet. It will. And like Loving, when it does, plenty of people will be saying 'well duh.'

I'm saying that the ambiguity in the phrase is not infinite and that the allowable change is not 100% elastic.

No disagreement here. It's a big damn deal to reach a conclusion that, as we now exist, state sanctioned execution violates the Eighth Amendment. As noted above, some people have come to this, most justices haven't. My own thinking is maybe a little more along the Blackmun line: maybe you could perfect it, if you added this that or the other safeguard, but as you look at decades of effort at doing so, you end up saying that while theoretically possible, it can't be done in the real world.

The correct quote:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

Yeah, I'm closer to Blackmun than Marshall and Brennan too... I just think it's possible to reach their conclusion in good faith.

Sorry to have been less than clear to the non-lawyers. All lawyer participants will have recognized my 3:05 as coming from CJ marshall's 1819 opinoion in McCulloch v. Maryland -- ending with the line I paraphrased in my 2:56. I went and looked up Blackmun's dissent in Callins v. Collins, which is worth quoting at length here.

To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U.S., at 605 (plurality opinion). That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants "deserve" to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, U.S. (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, U.S. (1993),and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U.S. (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.


I would call it modern Republican ideology, not modern conservative ideology, pub. This conservative--and multitudes like me--are fervent believers in checks and balances.

fair enough

This conservative--and multitudes like me--are fervent believers in checks and balances

and yet Bush was re-elected in 04 while both the House and Senate stayed R until 06. Apparently other values outweighed the need for checks and balances.

Sebastian--if the Constitution had a clause that said "the death penalty is not cruel or unusual punishment" you would be correct. What we have, though, is the Fifth Amendment, which does not say that. It can be read to imply that, but the Ninth Amendment tells us not to read it that way.

The 9th Amendment is irrelevant to the discussion. The text of it is: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The 8th Amendment is an actually enumerated right. You don't need to invoke the 9th amendment to get protection from "cruel and unusual punishment".

Are you professing a belief in a separate "anti-capital punishment" right that is grounded in the 9th amendment? I'll assume no, unless corrected.

The fifth amendment reads:

"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 offence 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 is three mentions of the death penalty in a row. One of which is lumped in with liberty and property, and I assume you don't believe in a 9th amendment absolute right to avoid government taking of property. So that brings us back to the 8th Amendment.

The 5th amendment and the 8th amendment were ratified simultaneously--so neither overrules the other. In standard interpretation, it is completely illegitimate to render a reading of a broad clause such that it would render useless a narrower clause. Your proposed reading of the 5th amendment is:

No person shall be held to answer [meaningless phrase] [an]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 offence to be twice put in jeopardy of [meaningless phrase] or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of [meaningless phrase], liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

If your understanding of jursiprudence allows for that reading, you are in a very difficult position when you want to argue against the broad and general Presidential Power swamping habeas with this reading:

"The privilege of the writ of habeas corpus shall not be suspended, unless when [meaningless phrase]the public safety may require it."

Or worse:

"The [meaningless phrase or otherwise not the normal meaning of the phrase]shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

If even 10% of the seats in Congress were held by libertarians we'd be in a completely different place.

I think it would violate the Posting Rules of ObWi to describe what I think that place would be like.

SFAICT, Libertarians are no more monolithic in their beliefs than, say, Democrats. Some Libertarians are strictly anti-tax but support other governmental intrusions into private life; some support drug legalization but not legal abortion; some (grudgingly) support health and safety regulations and some don't; and so on.

If 10% of Congress were Libertarians, they'd serve the same purpose as any other swing group: the two major parties would woo the ones whose brand of Libertarianism aligned with their position on a given issue. Libertarians might therefore be crucial to getting a particular bill passed (or keeping it from passing), but they would not themselves be drivers of legislation.

Also, while Libertarians might caucus with one or the other major party, they would never be Committee Chairs or even Ranking Members.

This isn't exactly snark, though it sure sounds like it: Sebastian, do you interpret the "and limb" part of double jeopardy to imply that mutilation or amputation is likewise a punishment "permitted", if that's the word, by the 5th Amendment?

One assumes "of limb" might refer to public floggings and the like, no?

I actually always interpreted "life or limb" in the 19th century idiom sense meaning threat of death or serious injury and imagined it in the prison work-gang sense, but that is without researching it.

The Fifth Amendment contains this:

nor be deprived of life, liberty, or property, without due process of law

Unless I read this wrong, depriving someone of life involves capital punishment. So, I score one for Sebastian.

If I understand correctly, Stewart's argument in Furman was based on the inconsistency with which capital punishment was carried out. To me, that's arguably a Constitutional argument, based on the Fifth Amendment. Brennan's argument was more along the lines of capital punishment being inconsistent with evolving societal norms, which is really not an argument based on the Constitutional merits. Score two for Sebastian.

Furman stood for all of four years before it was overturned by Gregg. None of the folks we're talking about are on the court now. The raging liberals of the SCOTUS are gone. The problem we face these days is the executive.

So, the historical parallels are interesting, and I'm sure we all acknowledge that both liberals and conservatives have abused their offices over the years.

But the problem before us now is George W Bush and his administration.

I'd like to solve that problem.

Thanks

Here's an partial link to an article about it, though it is on questia, so it is just the first page.

btw, is anyone on questia? If so, what do you think of it? I get links quite often, so I'm curious.

Just for the record, I've written on constitutional interpretation before, and though the dialogue with Sebastian is excellent, I would question the very concept of rule-following among his premises.

Sebastian seems to agree that power is part of the problem; he complains of Brennan's exercise of judicial power. This is the factual basis for his normative claim, that the use of such power ought to be constrained by rules of interpretation. (Sebastian, if I am misattributing positions that you do not endorse, feel free to correct me).

Even if one were to agree that the exercise of such power is unjust (which is itself questionable), it does not follow that rules of interpretation actually can constrain interpretation in the manner presumed. I would argue that the semantic model of rule-following endorsed by such a premise was repudiated by Wittgenstein. Even realists, who comprise the majority of Wittgenstein interpreters, do not think the syllogistic model of rule-following used in positivist legal theorizing stands up to close analysis.

I will not subject anyone further in a blog comment to the details of why I believe rules do not constrain interpretation in the manner often presumed, but if anyone is interested please feel free to email me.

As for Publius's post, Pub, I think you know we've had these discussions about power before. And I really do believe that power is at the heart of some of the most profound difficulties of republican (little "r") government. Such government is, as Churchill pointed out, the worst form of government, except for all of those other forms that have been tried from time to time. Madison was acutely aware of it, and I believe that his perspective on power is just crucial. Power will be abused, but therein lies the paradox, for that is one of the chief reasons we need government to begin with.

If I argue that rules do not constrain interpretation in the manner often presumed by conservative (in the Burkean sense) models of jurisprudence, then we nonetheless need procedures or methods of reducing the worst effect of power abuses. Madison, heavily influenced by Montesquieu, saw the best answer in diffusing power across a network, to avoid the concentration of power in the hands of one nexus of government.

Republican government is marvelous, save that naked democracy runs terrible risks of tyranny of the majority. Western history alone reflects a devastating record of this phenomenon, and Madison, seeing the British Empire with its hegemonic shadow, was exquisitely aware of the problem. That's why he viewed the judiciary as a check on the worst abuses of majoritarian power. A prime Madisonian justification of the judiciary is precisely to act as such a check.

Of course, Sebastian's point is in part that vesting to much power in the judiciary is a means to tyranny by a judicial oligarchy. This is trivially true, as it is already assumed in the premises (that concentrations of power corrupt, or in Nietzsche's terms, man exercises the will to power). To argue this is simply to name the initial problem.

Madison's carefully thought out response to the problem of majoritarian tyranny includes a vision of the judiciary as a protector of minority rights. People have to decide for themselves whether they fear majoritarian tyranny more than the risks of concentrating judicial power, but I wonder if it isn't the case that the scope of the harms inflicted on minorities by majorities exceeds by an order of magnitude that inflicted by judges. Which, again, is not to deny the dangers of concentrating power in a judiciary -- this is the republican problem, or at least a major one.

BTW, I do not deny that being Jewish and understanding Jewish history lends itself to culturally powerful fears of majoritarian rule.

/end rant

Russell, you need to check your meter. No one is saying that when the Constitution was written, the people who wrote it thought it banned the death penalty, as of the date it was written. No one denies that at the time it was written, states executed prisoners. Finding these undisputed facts to be so is the same as finding water to be wet. Surely there's no score for that.

On the Brennan question, you either think that the Eighth Amendment incorporates an evolving societal standard, or you don't. Nothing in the text answers the question conclusively either way. I think the the interpretative framework suggested by John Marshall is sound, and that is that we look at the words and the principles, and try to figure out what kind of government we have. One that can, where the text permits, evolve with society, or one where regardless of text and society, we are stuck with past customs. To the people who think the answer must be the latter I suggest that if they want to change the meaning of the thing, from outline to holy writ, they ought to go through the amendment process.

First, though, they need to own up to the invalidation of all marriages made pursuant to Loving that would not have been permissible before. Because I don't see how they can reconcile their interpretative framework with the result in that case.

"On the Brennan question, you either think that the Eighth Amendment incorporates an evolving societal standard, or you don't. Nothing in the text answers the question conclusively either way."

Even if it does, that doesn't mean that it is legitimate (as the answer to a Constitutional Question) for the 'evolving' standards to invalidate other provisions of the Constitution. The flexibility of the ambiguity is not limitless.

What provision of the Constitution, what "shall" statement in the text, does a prohibition on the death penalty invalidate? Please supply the language, which explicitly says that the death penalty is constitutional.

You can't. You have to imply it from the rights granted in other parts of the text. Which you're not supposed to do. Rights protected in the text aren't any less "retained by the people" than rights that aren't.

If the Fifth Amendment is THE decisive factor that rules out an Eighth Amendment prohibition on execution, you are using the enumeration of the right to due process (and the others you cite) to disparage the right not to be subjected to cruel and unusual punishment.

I guess you're just not capable of comprehending this argument (you don't just seem to reject it, you sesem to just plain not understand), but if you don't think I'm sincere....

(Of course, it is explicitly required by the text if you think the original expected application is the same as original meaning and is binding, but I don't think so. I think that's an indefensible theory, I've explained why at length. I know you disagree, but why you can't understand the other side is behind me.

And I would really like to hear a straight answer on Loving).

As to the answer to my post above. I know that habeas corpus has a tradition going back to Magna Charta as a law and a bit longer as an idea. But it never was (and unfortunately still isn't) universally accepted. True opposition to capital punishment on the other hand hasn't got real traction until the 19th century (single voices against it notwithstanding). Thus "heads off" could be considered as a default that the writers of the constitution simply took for granted (It would be interesting to know, if any of them had any thoughts about a future without it). HC on the other hand became a bedrock of the constitution not because it was imo "taken for granted" but because the framers felt the need to firmly anchor this revolutionary principle at the foundations of the "new way of doing things" because they could see that it was not "normal" in the context of world history.
If one looks just at the semantics of the text without context then of course habeas corpus and capital punishemnt could be debated away Gonzales style or be considered as equal and mandatory dues to "you can't take away what's not there in the first place".
In my opinion the framers saw capital punishement just in the light of procedure because it was "normal" but had to put some effort into guaranteeing habeas corpus because it was not (and simply could not imagine an AG doing 3rd level scholastics to debate it away by way of the "loss of horns" paradox).

For comparison, the German constitution says "The death penalty is abolished", implying that it was there before* (=default) and had to be explicitly done away with. Otherwise the text of the constitution usually deliberately avoids the possibility of Gonzalean sophistry by avoiding negative formulations.

*One or two member states still have it in their state constitutions but can't execute because federal law beats state law.

Even if it does, that doesn't mean that it is legitimate (as the answer to a Constitutional Question) for the 'evolving' standards to invalidate other provisions of the Constitution. The flexibility of the ambiguity is not limitless.

As Katherine says, this implies a real misunderstanding of our argument. Including an evolving standard in the Constitution isn't the same as ambiguity, and there aren't any provisions that are "invalidated" when the standard evolves away from where it was at the time the document was written. The third amendment isn't invalidated by our society's having moved past quartering troops.

It's OT, but do you, Sebastian, agree with Blackmun wrt the death penalty?

Finding these undisputed facts to be so is the same as finding water to be wet.

Sometimes it's worth pointing out the obvious.

On the Brennan question, you either think that the Eighth Amendment incorporates an evolving societal standard, or you don't.

The Eighth manifestly incorporates a societal standard. No explicit measurement for "excessive", "cruel", or "unusual" are given. All require human judgement to define them.

The reason that the ban on capital punishment did not stand is that an overwhelming number of folks, including, with the Gregg decision, enough members of the SCOTUS, did not agree with Brennan's opinion on what level of punishment was cruel or unusual.

My post upthread was, actually, an attempt to refocus the discussion away from the perfidy of the liberal courts of the mid-20th Century, and back on the issues that are actually on our plate, here and now.

Discussing the evils of liberal judicial activism these days is like discussing the quaint practices of some archaic tribe. Barring holdouts like the SJC of Massachusetts, liberal judicial activism is more or less a dead letter.

Not so the original issue under discussion.

And, just for the record, I wholeheartedly support the court's findings in Loving. Thankfully, and most of the thanks are due to those darned judicial activists, it's not an issue that even comes up any more.

Thanks -

"You can't. You have to imply it from the rights granted in other parts of the text. Which you're not supposed to do. Rights protected in the text aren't any less "retained by the people" than rights that aren't."

So you are flat out arguing that there is a "no capital punishment" right retained by the people in the 9th amendment. Is that correct?

"Including an evolving standard in the Constitution isn't the same as ambiguity, and there aren't any provisions that are "invalidated" when the standard evolves away from where it was at the time the document was written."

Well first of all there isn't much evidence that the real world standard of the United States of America has actually 'evolved' away from capital punishment. And you can't invoke some general "protection of minority interest" duty of the Supreme Court to create an 'evolving societal standard'. The two theories don't exactly fit neatly together.

Frankly if you hang your hat on the evolving societal standard argument, Brennan and Marshall absolutely had to be arguing in bad faith because a large majority of the US still supports the death penalty. I have been arguing all along that they were deeply mistaken about interpretation. You seem to be arguing that they were deliberate obfuscators of what the societal standard was. And in any case, no workable view of a real Constitutional societal standard shift is measured at the 50% level. The federal system of government allows for states to do different things. (Not that opposition to the death penalty ever hits 50%). In your presentation of the argument, Brennan and Marshall act out of pure judicial power to invalidate the death penalty by pretending their was a societal consensus against it when there in fact was not.

"Discussing the evils of liberal judicial activism these days is like discussing the quaint practices of some archaic tribe. Barring holdouts like the SJC of Massachusetts, liberal judicial activism is more or less a dead letter."

Hardly. This is in context of "they ignore and attack restraints on their power".

As far as I can tell every Democratic presidential candidate supports a return to the kind of judging that attacks restraints on judicial power.

Seb: "Even if it does, that doesn't mean that it is legitimate (as the answer to a Constitutional Question) for the 'evolving' standards to invalidate other provisions of the Constitution. The flexibility of the ambiguity is not limitless."

I feel an argument about the difference between what a concept means and what it is understood to cover coming on. Possibly a reference to concepts like 'carcinogen', and to the fact that if carcinogens are banned by some law that nonetheless in some way acknowledges smoking in a way that seems to imply that the people who wrote the law didn't think there was anything wrong with it, that law will ban tobacco without the least change of meaning once tobacco is determined to be a carcinogen.

Judicial power is at least kind of indirect. They can say how the laws have to work and they can rule on things that come to court, but they don't get a lot of say about things that don't come to court. If one branch of government is going to get excessive say, I think it ought to be them. And maybe they ought to get more protection from assassination than the President, too.

Still, I kind of like the idea of constitutional amendments to settle issues of changing societal standards. We've done that for various things the founding fathers didn't consider. Slavery. Votes for women. Votes for 18-year-olds. Prohibition. Etc. It's been laggy but maybe it ought to be laggy.

Speaking for myself, given the big deficiencies we've seen in the legal system, I'd prefer to allow capital punishment only for those in the upper half of the income distribution. If you don't have the money for a fair trial, then you shouldn't be executed.

Would rhyme well with the military principle of holding officers to a higher standard than non-coms and privates (despite its non-appliance in this administration, cf. bad apples).

"I feel an argument about the difference between what a concept means and what it is understood to cover coming on. Possibly a reference to concepts like 'carcinogen', and to the fact that if carcinogens are banned by some law that nonetheless in some way acknowledges smoking in a way that seems to imply that the people who wrote the law didn't think there was anything wrong with it, that law will ban tobacco without the least change of meaning once tobacco is determined to be a carcinogen."

That really can't come into play for any of the issues discussed here. If you use a legal term to ban things that cause cancer, whether or not something causes cancer is subject to independently verifiable scientific proof.

If we accept that "cruel and unusual" in the Constitution is an evolving term, it still evolves based on actually existing societal standards. It isn't subject to independently verifiable scientific proof in contradiction to the society's judgment, because society's judgment on the matter is all there is. Since the actual US society is not categorically opposed to the death penalty (unlike Brennan or Marshall) in order to justify reaching the conclusion that "cruel and unusual" eliminates the death penalty requires an incorrect understanding of the judicial role. While in SOME areas, the judicial role is to protect minority interests, this is not in fact one of those areas--if the standard changes based on societal consensus, you don't get to invoke the minority opinon on the the matter.

If the standard is based on "societal consensus," does it have any meaning at all? Isn't the whole point of the Bill of Rights to be anti-majoritarian?

Sebastian, I'm the wrong person to be arguing this side of it because, as noted, I agree with Blackmun and not with Brennan. That said, I don't think you measure the meaning of the clause simply by reference to an opinion poll, although an opinion poll would be among the evidence.

I disagree about (or, more properly, fail to understand) the 'protection of minorities' point: imo, the Bill of Rights protects individual human beings (sometimes citizens, sometimes all human beings) from intrusions by the state. The Eighth Amendment is precisely designed to protect an individual human being from a particular kind of state action.

I'm also the wrong person to be arguing this, since I have the quaint view that the 'unusual' part of 'cruel and unusual' means something that's falsified by a punishment's being the officially mandated punishment, and that 'cruel and unusual' means: judges don't get to impose sentences they just dreamt up, as an alternative to the normal ones, when those sentences are also cruel. (You can dream up an interesting form of community service as an alternative to jail, but you can't order that someone's toenails be pulled out.) The only thing that might prevent me from ruling accordingly, in the unlikely event that I am nominated to the SC, would be respect for precedent.

That said, I thought that the general point Seb was making (sorry if I got it wrong) was: the 5th amendment explicitly countenances capital punishment. Thus it can't be what the 8th rules out. The carcinogen case was meant to say: sure it can. You might want to argue that in this case it isn't, but there's nothing the least bit mysterious about how something that's mentioned in a context that shows that the framers did not believe it to be X, which they banned, might nonetheless turn out to be X, and therefore something they did ban.

Nor does accepting this general form of argument tend in any way to show that someone doesn't take the Constitution seriously. All it shows is that you accept that the meaning of a word can stay the same even when our understanding of what things that word refers to -- what things actually are carcinogens, for instance -- changes.

For what it's worth, I'd go further and say: the Framers could easily have written a Constitution that banned not "cruel and unusual punishments", but "those punishments that we, the Framers, take to be cruel and unusual." They did not. People who substitute the latter for the former are (to my mind) distorting the actual words as much as anyone.

A little penal history goes a long way toward explaining the Framers' thinking. Back in the day, in jolly old England, there was no such sentence as "life in prison." For that matter, there was no such sentence as a year in prison. The reason, interestingly, is that prisons were so unsanitary and disease-ridden that any prison term longer than two weeks or so was effectively a death sentence.

So basically, at common law, any crime that was serious enough that two weeks' imprisonment wouldn't suffice simply had to be punishable by death. There was no middle ground, at least not until the remedy of "transportation" (banishment to Australia or to the American colonies) came along in the 18th century. It wasn't until the late 18th century that imprisonment really came into its own as a punishment for crimes (as opposed to debtors' prison, imprisonment pending trial, and the like).

So if you asked the Founding Fathers whether they could imagine a future day when the death penalty might come to be regarded as cruel and unusual punishment, it would have been an awfully hard hypothetical for them to wrap their heads around. The concept of a criminal justice regime which didn't include the death penalty was incomprehensible in the 18th century, because they simply didn't have the range of alternative punishments available to them that we understand today.

So when they wrote the Constitution complete with references to capital offenses, were they saying that they expected the death penalty to remain part of the law forevermore? I doubt they had an opinion one way or the other; it was more that the idea of an alternative never occurred to them.

That last paragraph is about what I wanted to say with my above posts.

Just a quick comment. This has been an extremely interesting thread, and I appreciate the various opinions that have been given. IANAL, but I have actually been able to follow this.

I question if the death penalty can be ruled unconstitutional, but I do believe that in time it will be outlawed in most areas.

I disagree about (or, more properly, fail to understand) the 'protection of minorities' point: imo, the Bill of Rights protects individual human beings (sometimes citizens, sometimes all human beings) from intrusions by the state. The Eighth Amendment is precisely designed to protect an individual human being from a particular kind of state action.

I thought about putting a note on that at the end, but I think it only confuses things. Essentially those are two different issues. The 8th amendment protects minority interests in this way: posit a 20-year societal consensus (or maybe 70% of people agreeing) that tapping someone on the thumb once a day is cruel and unusual punishment (call it 'tapping'). If someone does something really horrible, we can't punish him with tapping--even if you can temporarily get 51% of the nation to say that he deserves tapping because he is so horrible. In that sense, the court is properly protecting minority interests AND accepting the general societal consesus on tapping.

It is not proper to 'protect minority interest' in determining whether or not there is a societal understanding that tapping is "cruel and unusual". The societal understanding is by definition not a minority understanding. I would argue that it isn't even a 50.1% understanding. It is something that approaches a societal consensus. But even if you don't agree with that, it certainly is not the minority opinon. That would make no sense whatsoever. That would mean that 'tapping' is cruel and unusual for Constitutional purposes when 60% of people think it isn't and CONVERSELY when 60% of people think it is, you should protect the minority opinion and recognize tapping as not cruel and unusual. If you are going to define something by evolving societal standards, you don't get to evoke minority opinons--they aren't the societal standards. You can do one or the other but not both.

Hilzoy, I think your conception of "cruel and unusual" has quite a bit of weight behind it, but it isn't at all the direction things have gone in the past 75 years and some things I just accept and move on. :)

That said, I thought that the general point Seb was making (sorry if I got it wrong) was: the 5th amendment explicitly countenances capital punishment. Thus it can't be what the 8th rules out. The carcinogen case was meant to say: sure it can. You might want to argue that in this case it isn't, but there's nothing the least bit mysterious about how something that's mentioned in a context that shows that the framers did not believe it to be X, which they banned, might nonetheless turn out to be X, and therefore something they did ban.

That is true for objective matters, but not for the 8th amendment as it actually plays out.

I'm going to go through all the steps and show where I think the problem is because I think I assumed a step in my head that people aren't understanding. I'm objecting to judges like Brennan and Marshall finding the death penalty "cruel and unusual" BY OVERRULING THE ACTUAL SOCIETAL CONSENSUS ON THE ISSUE.

If you accept the societal consensus theory of the 8th amendment and there were an actual societal consensus on that the death penalty was "cruel and unusual", the fact that it transformed to render moot part of the 5th would be fine.

The problem is that the Brennan and Marshall don't try to do that. They try to latch on to "evolving standards" and then they turn right around and defy the actual societal understanding.

The problem here is that people are conflating in their mind a bunch of different things that the Supreme Court does, and applying them inappropriately.

Sometimes the Supreme Court is empowered to defy the majority will. If the majority wants to generally suspend habeas corpus, the Supreme Court both can and ought to say no.

But when they are claiming to latch on to evolving standards of decency, they aren't in such a position. When you are latching on to that, you are appealing to the societal understanding. In a federal system that can't be just a 50% proposition--the Constitution lets people disagree on basic standards of lots of things. If you are appealing to the societal understanding on things, you can't then turn around and enact the minority opinon of the societal understanding. Even if you accept an evolving societal understanding theory of "cruel and unusual" you cannot enact a minority theory of it when doing so.

If the Fifth Amendment is THE decisive factor that rules out an Eighth Amendment prohibition on execution, you are using the enumeration of the right to due process (and the others you cite) to disparage the right not to be subjected to cruel and unusual punishment.

This is completely question-begging. What Sebastian is doing is using the enumeration of the right to due process (more specifically, the repeated references to capital punishment) NOT to "disparage" any actual 8th Amendment right, but to CONSTRUE the 8th Amendment to mean what it's supposed to mean. If Sebastian is right, the 8th Amendment simply doesn't bar capital punishment. And if the 8th Am. doesn't bar capital punishment, it CANNOT be "disparagement" in the 9th Am. sense merely to point out that fact.

Steve: So basically, at common law, any crime that was serious enough that two weeks' imprisonment wouldn't suffice simply had to be punishable by death.

That's an exaggeration. No, really, it is.

But you could be hanged for a theft over the value of 5 shillings, with the result that (I have read, though not in actual historical documents) a lot of people bringing a charge of theft would value what had been stolen at 4 shillings and sixpence, or something like that, because while they definitely wanted to see the thief punished, they didn't actually want a hanging on their conscience.

"I have the quaint view that the 'unusual' part of 'cruel and unusual' means something that's falsified by a punishment's being the officially mandated punishment"

Look at the history of "hanging drawing and quartering," the horrific traditional English punishment for rebellion and treason. If you've seen the movie, "Braveheart," you know how it works.

That punishment was used on a number of Jacobite rebels from the 1740's, within the lifetime of the founders. It continued to be authorized by statute for more than a century afterwards, but was used, if I recall correctly, only one more time, in the 1790's. Despite the statute, the punishment became unusual over time, and a social consensus (although they didn't use such language back then) evolved that the punishment was too cruel.

The founders probably gave this punishment some thought, given their personal histories.

There is no instance, of course, of this punishment being used in the United States.

I strongly suspect that the founders would have concluded that this punishment was barred by the 8th amendment, on the basis of evolving standards.

I always find it amusing when people talk about what "the founders" had in mind when they wrote the Constitution. Its as if "the founders" was in reality a monolithic creation or as if all the founders were in total agreement on everything.

Obviously this is not the case and to some degree the Constitution ended up being like a piece of legislation with earmarks. Much of the Bill of Rights was added so as to get various states to approve it, and the Second Amendment went through at least five revisions.

The best we can do is attempt to figure out what specific founders might have meant.

This has nothing to do with the topic at hand, just wanted to get it off my chest

Since Braveheart makes an appearance here, I'd just point out that there is some debate about what 'drawing' means and whether the execution portrayed is historically accurate. Here's an interesting webpage about the process that seems quite good.

I'm objecting to judges like Brennan and Marshall finding the death penalty "cruel and unusual" BY OVERRULING THE ACTUAL SOCIETAL CONSENSUS ON THE ISSUE.

Didn't they assume there was societal consenus in the entire Western world? Maybe even the entire world, since in 2005, 94 per cent of all known executions took place in China, Iran, Saudi Arabia and the USA.

Nine countries since 1990 are known to have executed 53 prisoners who were under 18 years old at the time of the crime – China, Congo (Democratic Republic), Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, USA and Yemen. China, Pakistan, USA and Yemen have now raised the minimum age to 18 in law, The USA and Iran have each executed more child offenders than the other seven countries combined and Iran has now exceeded the USA's total since 1990 of 19 child executions.

There's a consistent liberal/conservative dichotomy as to whether the opinion of the rest of the world matters, in this as well as other areas.

Many conservatives have a very strong, negative reaction to the concept that because the rest of the world does X, that's a reason for us to do it too.

Another really interesting discussion. Thanks to all. I love the legal arguments, although (or because?) IANAL.

Publius: very nice post, which airs a lot of things I've had on my mind for a long time but never put together so cleanly.

Sebastian: I'd like to step back from the death penalty question to the broader issue.

Your claim about liberal judges is that they are like the Bush administration in that "they ignore and attack restraints on their power." And I am intrigued by the suggestion. I really am. I've been rolling it around in my head for a while now, and in some ways I see the parallels. And it's fascinating to me to think that, however angry the Bushies' repeated and horrifying attacks on the rule of law make me, that some conservatives are equally angry about the thought that the death penalty could be interpreted to be unconstitutional. (As a typical wishy-washy liberal, I am pathologically interested in seeing the other guy's side of the argument.)

In other ways, though, I think the parallel is a very big stretch. At the end of the day, there's something fundamentally different going on. Three points:

Point 1. The Bush administration *explicitly rejects* the concept that there are any rules restraining them. The liberal judiciary never did anything similar. Whatever you might want to charge the liberal judges with, they did do anything even vaguely parallel to the power grab implicit in the "signing statements" debacle. "We, the Supreme Court, reserve the right to ignore the laws we don't like." No, they never tried anything like that.

Second point. The parallel you draw with the ludicrous Gonzalez argument about habeus corpus is as follows: in both cases, "the broad and general powers (in this case Presidential powers) get to over-rule specific narrow portions of the Constitution."

Again, this is close to being on-target, but I think it is just a bit off the mark. I just don't think that's what is happening in the death penalty jurisprudence. There is nothing being "over-ruled." The 5th amendment does not say "The death penalty shall be legal." It makes some references to imply that the justices thought that the death penalty was accepted, at that time, as normal. But that's a very different thing, as others have pointed out.

If you're going to find a parallel with the Gonzalez case, then you have to find a place where the liberal judiciary said "our very broad reading of clause X of the Constitution trumps the very specific clause Y of the Constitution." So, for instance ... oh, say some sub-group of gun owners was so crazy about their love of guns that they formed what amounted to a new religion. Then you would have to imagine Justice Brennan or whoever saying that the 2nd amendment (guaranteeing this religion access to guns) amounts to a form of religious establishment, and is therefore unconstitutional under the 1st amendment.

Something like *that* would be an attempt to over-rule one part of the Constitution with another, and would be parallel to what Gonzalez attempted. If you can find anything like that in the history books, I'd love to hear about it. Until then, I'm unconvinced.

Really, I don't think the liberal judges "attacked or ignored restrictions on their power" at all. They just understand the nature of interpretation a teensy bit differently than you do. (Where exactly to draw the line between "too loose" and "just right" theories of interpretation is a pretty tough call.

Third and final point. The Bushies are doing everything they can to *hide* their consistent attacks on the limits of their power. The administration's power grab is fundamentally illegitimate under our system of government, and they know it. The intellectual arguments being put forth really are just a fig leaf to cover the more important belief that their own power should be unchecked.

By contrast, the liberal interpretation of the nature of jurisprudence is not hidden. These people write books and legal briefs explaining their understanding of the nature of interpretation. They attend academic and legal forums and debate the issues openly. They don't lie and deceive about what they're doing. And their understanding of the nature of interpretation has hardly been shown to be intellectually incoherent. Nor has any other interpretive method been shown to be more coherent. At this point, it's a good faith intellectual debate among fundamentally honest people.

At the end of the day, there's just no comparison.

Many conservatives have a very strong, negative reaction to the concept that because the rest of the world does X, that's a reason for us to do it too.

Yeah, because "everybody does it" is a stupid argument. If it had been made in the 1780s, we'd never have had a Bill of Rights in the first place.

Yeah, because "everybody does it" is a stupid argument.

Look, I wasn't making a normative judgment. "The rest of the world is wrong and I'm right" is often a stupid argument, as well.

I might as well give an opinion about what the SC ought to do since lots of others are. Of course, what they actually do will depend on some combination of strong personalities and cold impersonal forces, pretty much independent of what I think.

I disagree a little with Sebastian -- I think it's fine for the SC to get out in front of the social consensus provided the social consensus catches up pretty quick. It's good to do so when they're heading in a good direction and their actions *help* the social consensus catch up quick.

I think it's a bad idea for them to stray from the social consensus when their actions tend to push the social consensus against them. That weakens the SC and it doesn't strengthen their cause.

How to tell which is which ahead of time? I'm not sure.

I think in general it's better when the social consensus isn't exactly a consensus for the SC to encourage diversity. So, when there aren't enough states with s consensus against capital punishment to get a constitutional amendment, better to allow it in states that want to do it and that do it "correctly", and allow states that don't want it to forbid it. If there's no consensus on gun control, let states taht want it try it and let states that don't want it avoid it. That means no good result from gun control anywhere since it will be easy to smuggle guns from one place to another, but them's the breaks. If there's no consensus on gay marriage, let states that want to allow it and require other states to recognise out-of-state marriages. that's bad for states that really want to ban it, but again them's the breaks.

Allow diversity until a social consensus arises.

Where social consensus comes hard I'd like it if the SC could do something to encourage a peaceful settlement. We lived with diversity and no social consensus on slavery for a long time until it got settled with massive bloodshed. Let's try to avoid that next time.

And it's fascinating to me to think that, however angry the Bushies' repeated and horrifying attacks on the rule of law make me, that some conservatives are equally angry about the thought that the death penalty could be interpreted to be unconstitutional.

It isn't just the death penalty. It is lots of things, but I chose the death penalty because, believe it or not it isn't as emotionally charged as some areas (abortion for instance) and the power grab is pretty explicit (as opposed to say property seizure issues).

The Bush administration *explicitly rejects* the concept that there are any rules restraining them. The liberal judiciary never did anything similar.

Some of the interpretation schemes strike me as pretty much that. The death penalty game strikes me as right on the edge of "because I say so".

Again, this is close to being on-target, but I think it is just a bit off the mark. I just don't think that's what is happening in the death penalty jurisprudence. There is nothing being "over-ruled." The 5th amendment does not say "The death penalty shall be legal." It makes some references to imply that the justices thought that the death penalty was accepted, at that time, as normal.

It is either a matter of simple interpretation or a matter of changing societal standards. You are combining the two inappropriately.

If it is mere interpretation, the 5th amendment clearly illustrates that the proper interpretation can't extend as far as outlawing the death penalty.

If it is changing societal standards, the Court needs to wait until the societal standards have actually changed.

In neither case is the Brennan/Marshall finding defensible.

The Bushies are doing everything they can to *hide* their consistent attacks on the limits of their power. The administration's power grab is fundamentally illegitimate under our system of government, and they know it. The intellectual arguments being put forth really are just a fig leaf to cover the more important belief that their own power should be unchecked.

By contrast, the liberal interpretation of the nature of jurisprudence is not hidden. These people write books and legal briefs explaining their understanding of the nature of interpretation. They attend academic and legal forums and debate the issues openly. They don't lie and deceive about what they're doing. And their understanding of the nature of interpretation has hardly been shown to be intellectually incoherent. Nor has any other interpretive method been shown to be more coherent.

I can't agree with you at all. For the most part, liberal jurisprudence is incredibly hodge-podge and has been perverted by the fact that it is necessary to defend really ridiculous ruling like Roe. However incoherent you believe textualism is, it isn't likely you are going to find a liberal jurisprudence that is more coherent. You may find one that gets lots of results you like, but that isn't at all the same as coherent.

As far as I can tell every Democratic presidential candidate supports a return to the kind of judging that attacks restraints on judicial power.

--Sebastian Holtzclaw

Uncontested and absolutely correct. A Democratic president in 2009, with a Democratic Senate, will only consider Supreme Court judges favoring unrestrained judicial power.

The reason, though, lies within the realm of "civil religion." There's a religious principle involved. If the 28-foot long magical egg of the Oval Office is occupied by someone who "cares" and "puts people first," then this great white bwana will make life better for everyone.

This is the kind of fairyland that they live in, a politically progressive mirage that keeps receding before us as we march across a desert with insufficient water. What they try to do in an argument is make you prove a negative. They feel they are right unless you can demonstrate conclusively that the Emerald City doesn't exist and the ruby slippers have no power.

Central to this religion are two beliefs, and these are more important than human life itself. 1: Man is perfectable through his institutions. 2: Government has a responsibility to act with compassion, and this is best exhibited by developing classes of citizenship (originally based on race, but that was repudiated, so...) based on age, economic conditions, past ethnic history or geography.

A man who persues #1 and #2 is progressive and moving "the people" forward, even if he kills 100 million of his own people in peacetime, as Mao did.

To this religion, the death penalty is an unholy horror, because the convicted murderer is still a human being --and that means -- STILL PERFECTABLE THROUGH HIS INSTITUIONS.

So, to this religion, a jury awarding murder 1 or a judge pronouncing a death sentence is "cruel and unusual" punishment. Within that church, the phrase "cruel and unusual" never boils down to what the founders almost certainly intended -- "torture." The constition allows a federal death penalty, does not prohibit states from disallowing it, but denies torture (as "cruel and unusual") at any level of government against any adversary.

How many liberals voted against the Patriot Act (written by Gonzales) in the fall of 2001? "Almost none," because they wanted to look patriotic in order to get re-elected in order to pursue social perfectability and classes of citizenship. The political means serve the religious ends.

Sebastian, you're not going to win this argument sitting in the alabaster temple of Absolute Fairness and offering legalistic arguments to the faithful. How do I know this? I'm a retired government auditor and CPA. The gross national product of the USA is roughly $14 trillion a year. The net unfunded debt of Medicare is approximately $66 trillion. Other unfunded debts push the federal unbooked guarantees past $100 trillion. "Universal health care" is not going to happen, ever. There's no money for it. Eventually, certainly, Medicare is going to be sunsetted. If no action is taken, it will be sunsetted by hyperinflation.

End of discussion. Don't argue with me unless you're a CPA or PhD in Economics. What I just said isn't a political opinion -- it's an expert talking within his specialty.

But followers of the civil religion of institutional perfectability and classes of citizenship are outraged by such a factual assertion. My character is attacked as barbarous. I've offended their utopia.

And this is what you're doing with your legal arguments. Let me put it this way. The ivory billed woodpecker has been extinct since 1944, but that hasn't stopped the Cornell ornithologists and spear carriers from spending $10 million to find it in Arkansas, even without any legitimate sightings, even after the fuzzy evidence has been roundly repudiated by refereed and published scientific analysis.

Your arguments based on the rights of Magna Carta, John Locke and the Federalist Papers do not encourage a single soul to leave the temple of Absolute Fairness. Specifically, expressly, La Rochefoucauld's essay on Self-preservation-as-self-love ("Amour-propre"), though true and 300 years ahead of itself as sound psychology, was so scandalous it was not included in the subsequent editions of his Maxims. There's a lesson there.

So your logological and philosophy of laws arguements are less than effective when presented to believers in a civil religion. And, lo, there is ANOTHER reason they aren't going to listen to you: they are in grief. A dumber, cornier, laughable religion went to the sacred Supreme Court in 2000 and "won" the Presidency --and this is the good part -- the same carnival side show actually won outright the next time inspite of an unpopular ongoing war.

They're in no mood to listen to you. They think the country has come around to their view (because of the 2006 elections), but actually that victory was based on the desire to stop an irrational military adventure in Iraq. An adventure most liberals supported at the outset.

Perhaps America has become too stupid and superstitious a country to make geopolitical and Constitutional decisions based on logic.

Well, that was an enjoyable comment, especially the bit about Chairman Mao, liberal hero.

It's surely "uncontestable and absolutely correct," however, that liberals who oppose the death penalty do so because they believe all criminals can be rehabilitated and "perfected." I'm sure that's the only argument out there.

I have no problem with the death penalty in principle, by the way, although I still think Seb's constitutional argument is composed mostly of snake oil.

Urban coyote, you aren't really helping. Though I have a sneaking suspicion that may be intentional. ;)

End of discussion. Don't argue with me unless you're a CPA or PhD in Economics. What I just said isn't a political opinion -- it's an expert talking within his specialty.

umm, that's not really how we conduct ourselves around here. also, comparing one year's GDP to the net present value of an obligation in perpetuity is, at best, grossly misleading and at worst is, well, flatly dishonest.

for example, what's the net unfunded liability of the DOD? The military talks about needing 4-6% of GDP for the foreseeable future, yet we fund DOD expenses out of general revenues which are only good for one year! OMG! WE'RE ALL GOING TO BE SPEAKING FARSI!

feh.

As to the death penalty, there's a couple of different analytical approaches being conflated in this thread.

SH theory -- capital punishment is explicitly mentioned in the BOR. Therefore, arguing that capital punishment is unconstitutional has no basis in the BOR and there is no other possible source of authority for invalidating capital punishment.

One response -- But the 8th Amendment specifically contemplates that cruel and unusual punishments are to be banned. So, either the Sup Ct can legitimately decide that capital punishment is now c&u, or the "evolving standards" test is wrong (and the determination of c&u is based on 18th century standards), or the evolving standards test cannot go so far as to ban capital punishment because of the 5th amendment recognition of the possibility of capital punishment.

(My own view -- in the interplay between the 5th and 8th amendment, the Sup Ct does have the power to limit some conduct, but lacks the power to find that capital punishment is per se cruel and unusual.)


Second response -- death is different because death is final. The 5th amendment imposes higher standards on states for the imposition of the death penalty than for even LWOPP (life without possibility of parole). Yet states have consistently failed to demonstrate that they have established Constitutionally minimally adequate procedures for imposing death.

(My view -- I agree. For example, I don't think that individual deputy DAs should make the determination. I would be much more comfortable if the decision were made by the AG pursuant to statutory guidelines.)

Yeah, because "everybody does it" is a stupid argument. If it had been made in the 1780s, we'd never have had a Bill of Rights in the first place.

1780s? 1689.

I didn't mean to say that the US should do it because most of the world does it (though it might be an indication), I'm just saying that something might be viewed as 'unusual and cruel' if you look at the current civilized world and still be considered normal in the US. That does not mean it is not cruel though.

I think the American way of making laws is bad, ours is much better. But public access to info is on the whole better in the USA. Deliberately making last-minute changes in laws or putting completely unrelated things in contradicts all a law should be imho. But defending capital punishment feels much like defending that rapists should be raped, so I guess I'm a complete minority here ;)

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