Unused and Probably Unusable

[First of all, I wish to make classic blogger error #4, and apologize for the long hiatus between posting. Such apologies draw attention to the error, fail to remedy it, and ring hollow. If I wanted to post daily, I could. It is not possible to post thoughtfully while I'm at trial, and I shouldn't try; but in the meantime, I can get back to regular posting. Here goes.]

Anonymous #4, frequent reader and commenter, wrote in the comments to my first installment of the Scalia MegaPost, on the Living Constitution:

Whose preferences shall be enshrined in the law?

An excellent question, A#4, and I intend to address it.

I recommend everyone to go read his whole comment - wait, why send you, when I can just paste it all here, with hidden HTML so you don't have to see the rest unless you want?

Assuming that a branding case came up to the Supreme Court, should they

1. Hold hearings-
2. Sponsor a study-
3. Put the issue to a referendum-
4. Consult the law of other countries-

Or

5. Consult their own consciences and considered reaction-(rest of comment hidden behind the jump)

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to determine that branding, which was formerly considered a useful punitive tool, is no longer consistent with the minimum level of official regard for human dignity?

Or, ought they decide they are not capable of making that decision since 1-3 are not within their power, number 4 is extra-constitutional, and number 5 is a naked exercise of power?

If we-the-people have become enlightened, our legislature or our juries must declare it--not the judiciary.

But let Scalia say it, from his dissent in PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)

But whether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution [505 U.S. 833, 999] has an evolving meaning, see ante, at 848; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition - then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change - to show how little they intimidate us.

Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls "`political pressure'" by both sides of this issue. Ante, at 963. Maybe today's decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception - a job not for lawyers but for political campaign managers - the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.

In truth, I am as distressed as the Court is - and expressed my distress several years ago, see Webster, 492 U.S., at 535 - about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account [505 U.S. 833, 1000] their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of "liberties," the Court tells us, inhere in the Constitution, and are enforceable by this Court - not just those mentioned in the text or established in the traditions of our society. Ante, at 847-849. Why even the Ninth Amendment - which says only that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" - is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at "rights," definable and enforceable by us, through "reasoned judgment." Ante, at 848-849.

What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here - reading text and discerning our society's traditional understanding of that text - the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school - maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante, at 943.

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Well, wasn't that special? Let's dialogue with A#4; thanks for the comment. Interesting point. I don't agree, as I indicated in my own comment. But it's Scalia I'm really disagreeing with, at least as much as you.

On Branding
Why Branding doesn't require an impermissible value judgment.

Assuming that a branding case came before the Supreme Court, based on a claim of a constitutional violation under the First, Fifth, and Eighth Amendments and possibly "something else," what should a court do?

Hold a hearing, sponsor studies? Why no, you ninny, as my Crim Law prof was wont to say. The court should look at the text and purpose of the clauses at issue to see if they support a claim. In this case, the Eighth Amendment says, and I quote,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Now, I don't know about you, but i read that as having content. Meaning, I call it. "Excessive" means a judgment call is called for. So do "cruel" and "unusual" - and I'd even misread it on purpose, as "cruel or unusual." Is it a conjunctive and, or does it mean "or"? Do you know? Does anyone? Probably. But let's just read it without the benefit of that knowledge.

The 8th is supposed to allow Congress to be guided by the intentions of the Founders, right? Well, no, I'd argue that it was _intended_ to do nothing whatsoever. Much like the 1st, 2nd, 3rd etc. Amendments, there were several schools of thought:

1. The Amendment has no meaning and no significance; if someone else wants it, we can stick it in and it won't tie our hands



2. The Amendment has no meaning, and is important only because it reflects the protections that the Constitution provides in any case - the only danger being that some foolish future generation might not think it obvious that the Constitution itself protects these things, and that therefore "what is not included, was to be excluded." The government being one of limited powers, granted "by the people," it naturally cannot expand its own power. [too bad that one didn't catch on]



3. The Amendment is crucially important, because those silly Federalists (meaning Federalists, not meaning Anti-Federalists such as some members of FedSoc) want to strip away our rights to have armed militias, to avoid an oppressive establishment Church, to keep soldiers out of our homes, to protect our historical rights to a jury of our peers.

I have sympathy for some of the above. But I don't think the intent matters. What was key to one voter or one state was not to another; the words must govern, as interpreted today.

Justice Scalia's comments that you quoted - that if Roe was not rightly decided at the time, and if it has not produced a settled body of law, then it should be overruled - is a nice argument. I think it's not even adequate, on its own, but that's another argument: the Roe argument.

We're still having the Branding argument.

But feel free to bring up Roe more in comments; maybe I'll complete and publish the Roe post I've been contemplating.