Wince and Nod's post on the Fair Construction Amendment leads to a lively exchange

‘I like it. What do you think?’

This is a printout of an exchange on the Wince and Nod blog that was prompted by the blogger's comment on the Fair Construction Amendment. In this version, consecutive posts by the same person are run together without interruption, but it is otherwise unaltered.

Saturday, January 08, 2005

A Proposed Amendment

Karl Spence wrote the following to me in an email:

How about an amendment that reads like this:

        The Judiciary of the United States shall not presume to exercise nonjudicial power.

        The sense in which this Constitution was accepted and ratified by the nation shall be the guide in expounding it. Its provisions are neither to be restricted into insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption. Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation.

        Disregard of these principles is cause for impeachment.

If any of those phrases sound familiar, it's because they're lifted from the writings of John Marshall, James Madison, Thomas Jefferson, Alexander Hamilton and George Washington.

The amendment would need additional sections to ratify those changes the courts made for us that we should have made for ourselves (e.g., the overthrow of Jim Crow), and --- if it is to have a chance of success --- to give proper constitutional authority to a great deal of the functions the federal government is now performing (Social Security, Medicare, the Federal Reserve, national parks, disaster relief, etc., etc., etc.). Devising it and getting past the furious opposition of today's legal establishment would be a lot of trouble. But at the end of the day, we'd have the advantage of practicing actual self-government, instead of bowing to the dictates of a judicial elite whose interpretations of the Constitution bear less and less relation to its original, true, ratified meaning.

I like it. What do you think? You can also email Karl yourself.

posted by Wince and Nod @ 7:08 PM

What do I think? I think it's seriously arrogant to presume that those justices who sit on the bench today, all of whom have spent a lifetime in contitutional study to a degree unfathomable to ordinary citizens, are not the most qualified individuals on the planet to judge the contitutionality of contitutional interpretation with the possible exception of those legal scholars who teach law in our most prestigious law schools (and taught those justices themselves).

Not a single member of congress is as qualified to judge the difference between proper legal interpretation and judicial fiat, nor are Mr. Spence and certainly not you.

What you want is simplicity, but what will result is mob rule -- which works as long as the numbers are on your side. I know you have no tolerance for nuance, which is why you lack an appreciation for "judicial temperment."

God, even Robert Bork, who I thought would have been a catastrophic choice for the bench, as well as his ideological soul mates Scallia and Rehnquist, have a better understanding of the subtle beauty of the dynamic ability of our Constitution to evolve as it meets new social challenges from generation to generation than you display.

The Constitution was created for a slave-owning, agrarian, racially homogeounous, puritanical, male dominated, landlord centric, pre-industrial society. Without your so-called activist judges, we could not even approach a society worthy of respect in the modern era.

Do you harken back to the days of Jim Crow and Separate but Equal? Without "activist" judges that's where we would still be, Apartied south of the Mason-Dixon. Forget about a Colin Powell rising to power and respect. Women recieving equal opportunity? Never without an interpretive ruling that good old fashioned flirting and cat calls are actually harassment? There would be no Kay Baily Hutchinsons let alone a Condi Rice.

Can you imagine companies free to defraud Americans as long as they only did it to folks from other states? It was a stretch of jurisdiction through the courts (see eg., Intern'l Shoe v. Washington) that prevents corporations from hiding behind state lines to avoid following the laws of another.

I think you need to read what our very conservative Chief Justice recently wrote on the subject before you look any more foolish advoking amendments which will never even be given serious consideration with ludicrous and unenforcably draconian provisions.

This is the Constitution of the United States of America you want to screw with. Think again. That's what I think.

Mark Adams | Email | Homepage | 01.09.05 - 2:05 am | #

I thank Mr. Adams for responding to my proposal for a Fair Construction Amendment. I will try to respond to him without committing serious arrogance.

It’s undoubtedly true that a career in law involves the acquisition of a great deal of knowledge the layman knows nothing of. Without such knowledge, I would not feel capable of deciding very many of the issues the Supreme Court considers every day. The problem I seek to address, however, involves politics in the guise of law. How does one deal with justices who leave off interpreting the law and begin to practice politics instead? When justices discard what they know to be the original, ratified meaning of the Constitution and substitute new meanings they themselves devise in what they deem to be the best interests of the nation, is that not obviously a political exercise? And when it comes to politics, are we not all equal? Shouldn’t one man’s vote count as much as another’s, be he a lawyer, judge, congressman or ditch digger? I assume Mr. Adams would not argue otherwise.

Never having been put to the test, I wouldn’t know if I possess either what Mr. Adams calls “judicial temperment” (sic) or an appreciation for the same. But I do know my limitations as a layman. Therefore I did not pull the language of the Fair Construction Amendment out of thin air. As my original post mentioned, those words were lifted from the writings of Washington, Jefferson, Madison, Hamilton and John Marshall. Those are the gentlemen Mr. Adams' post is “screwing with,” not me.

To begin with the amendment’s title, it comes from John Marshall, who wrote: “There is a fair construction which gives to language the sense in which it is used, and interprets an instrument according to its true intention.” Marshall, believe it or not, was a friend not to a "growing, evolving" Constitution but rather to the real Constitution — that is, to interpretation by the original intent.

Then there’s the amendment's first sentence: "The Judiciary of the United States shall not presume to exercise nonjudicial power." It comes from another passage of Marshall’s: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. ... Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”

The phrase “shall not presume” borrows a word of Hamilton’s, who wrote that if judges were ever to be so rash as to embark on “a series of deliberate usurpations on the authority of the legislature,” then Congress would surely punish “their presumption.” What might that punishment consist of? We'll get to that in a minute.

The next sentence — "The sense in which this Constitution was accepted and ratified by the nation shall be the guide in expounding it" — comes entirely from Madison, who wrote: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.”

The next — "Its provisions are neither to be restricted into insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption" — is a conflation of two passages from Marshall and one from Jefferson. The former wrote this: “The intention of the instrument must prevail; ... its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them nor contemplated by its framers.” And this: “What do gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle.” The latter wrote: “The Constitution on which our Union rests shall be administered ... according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption.”

The next — "Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation" — relies on Washington, who in his Farewell Address wrote: “If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.” Give a nod also to Joseph Story, next to Marshall the greatest justice of our nation’s first century: “A departure from the true import and sense of its powers is, pro tanto [to that extent], the establishment of a new Constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator.”

As for the last — Disregard of these principles is cause for impeachment — That comes from Hamilton: “The supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. ... [This] inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body, and of determining them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of [Congress], while this body was possessed of the means of punishing their presumption by degrading them from their stations.”

In his post, Mr. Adams asks, “Do you harken back to the days of Jim Crow and Separate but Equal?” I believe I answered that question in my e-mail to Wince and Nod when I mentioned that a Fair Construction Amendment “would need additional sections to ratify those changes the courts made for us that we should have made for ourselves (e.g., the overthrow of Jim Crow).” I think Washington addressed the point also when he said that although usurpation (read: judicial activism) “is the customary weapon by which free governments are destroyed,” it neverthess “in one instance may be the instrument of good.”

On Mr. Adams’ Web site, he gives prominent play to a painting of the presentation of the Declaration of Independence to the Continental Congress, superimposing on this icon of our founding fathers the phrase, “Liberals At Work.” But in his post to Wince and Nod, Mr. Adams refers to the founding generation as “a slave-owning, agrarian, racially homogeounous (sic), puritanical, male dominated, landlord centric, pre-industrial society” whose endowment to us would, absent the ministrations of judicial activists, render us not “worthy of respect in the modern era.” So, which is it? Those men gave us a Constitution Mr. Adams claims to venerate. Were they deserving of honor or contempt?

In any case, Mr. Adams should explain to us why, on this matter of constitutional interpretation, he is so very right and Marshall, Hamilton, Madison, Jefferson and Washington are all so very wrong.

Karl Spence | Email | Homepage | 01.10.05 - 2:02 am | #

Pardon my typo. "Neverthess" (sic) in previous post should be "nevertheless."

Karl Spence | Email | Homepage | 01.10.05 - 2:59 am | #

I presume you will pardon my typo of the word "homogeounous" as well (and the ones which will surely follow below), but more importantly, you would extend the benefit of the doubt to me that I do indeed revere the Founders as the phylosophical geniuses they were. Their status and stations were reflective of the times they lived in and it is a credit to them, not an indictment, that they could produce a document like the Constitution that is still relective of, and instructive to our socienty today even though their slave-owning, male dominated culture is anathama to our modern world.

I brooke no dispute with the high-minded ideals offered by the quotations Mr. Spence laboriously puts forth above. But I believe that actions speak volumes as well, to wit:

Notwithstanding the admonition that Justice Marshall was a friend to the "real Constitution," it was his ruling in Marbury v. Madison which institutionalized the idea of judicial review, the enshrinement of the power of the courts to declare an act of the legislature and/or President "unconstitutional" Nowhere in the Constitution is this power even inferred, yet Marshall's Marbury opinion stands as the first and most powerful bit of "judicial activism" in our nation's history.

Marshall had no little esperience with politically motivated impeachment attempts. And make no mistake, unless you are attacking a judge for extra-judicial conduct (actually committing a crime), or corruption (bribe taking) by even threatening impeachment due to a disagreement with an opinion rendered in open court after due consideration of the matter before it, is more often than not politically motivated, which should have no influence on any individual case.

Marshall was a chief witness in the impeachment proceedings of Justice Samuel Chase which failed on each of the politically trumped up charges. The fact that the Senate declined to convict Chase of any High Crime or Misdemeanor on the accusation that he acted like an "electioneering partisan" further advanced the inviolate independence of the judiciary.

Most of the procedures in place satisfy Justice Marshall's ideal that courts have no identity ourside the law and are merely its instruments. Judges decide cases. They do not make up laws out of whole cloth. Indeed the Marbury case was an extension of the English Common Law tradition of interpretation of the English Constitution. (Yes, there is one, it's just not as nicely drafted as ours, but is the culmination of the entire body of Anglo-Saxon jurisprudence with a healthy helping of the Roman's Justinian tradition.) Marshall did not make it up out of thin air. Original thinking in the law is often suspect.

Threatening impeachment as a political tool has a tradition that continues today. Bob Dole Tom DeLay and Bob Barr kept lists of judged they wanted to impeach and the horrible precident that such political pressure was actually successful in reversing some decision was a dark day in American jurisprudence. (see what happened to Judge Harold Baer, and you might understand.) Even that lifetime appointment cannot always shield the independence of the "instrument of the law" from political pressure.

The numbers alone expose the lie that most calls for impeachment are nothing more than political disagreements with a court's decision rather that an objection that a judge is actually acting outside of his or her mandate. For an nice synopsis of the threat and use of impeachment as a political weapon look here

Every year politicians and cultural and religious leaders call for the impeachment if this or that judge, yet in our history only 61 federal judges have had impeachment investigations started, 13 of which were actually impeached. Even then, the clear political manipulations were apparant and only 7 have been convicted in the Senate.

Frankly, this entire movement against so-called "judicial activism" is an attempt by the right to destroy judicial independence in its all out war on liberals. look here for how a seemingly thoughtful argument for renewed use of impeachment powers merely disguises a political agenda. Anyone who refers to judicial precedent as the court's "own propaganda" yet cannot cite one example of decisions where the court usurped legislative perogatives that did not have religious overtones has an axe to grind, period. (Note also this site's use of the Trumbull painting I display on my site too.)

And no, I reject out-of-hand your assertion that when it comes to the law, deciding a case on the merits, one man one vote should be the rule. In politics, sure, if only that were actually the case, but not in legal decision making. Far too complex, too misunderstood and subject to whim are the rationale that goes into each and every decision a judge makes to allow simple majority rule. We have a consititution and courts to protect individuals and minorities from the powerful, the wealthy, the state and the mob. Without a truly independent bench, we quickly slide down that hill towards chaos, anarchy or fascism.

Would Hitler or Stalin put up with judges who stood in their way and ruled against their vision of what they believed was best for their government? Of course not, which is why we must honor the integrity of our judges.

I'll give you an example of why you cannot second guess our judges they way you want to. Everybody in this country has an opinion of the OJ Simpson case, but even though it was broadcast ad nauseum, very, very few people can say that they watched the entire proceedings. Almost none of them can say that they watched the case gavel-to-gavel but never saw a single bit of commentary. 12 people can and they were charged with deciding the case. Agree or disagree with them, you cannot say you were in a better position to render a verdict.

Anyone who thinks that the Massachusetts Supreme Court Justices should be impeached for their gay marriage ruling neither read the opinions of the court, read the briefs or listened to the arguments the court did, let alone studied the body of law which influenced their decision or even the Massachusetts Constitution the ruling interpreted. How dare you presume to think you know better than them just because you disagree with the result. Ditto for the Pledge of Allegiance case, the Santa Fe graduation prayer case and so many others. Think about it. If it is unacceptable for a judge to be result oriented, to pre-judge a case based on ideological inclination, and yet you look at a result and call for the judge's head, who actually is upholding the spirit of the law and who is following their political agenda?

Mark Adams | Email | Homepage | 01.10.05 - 12:10 pm | #

Mark,

On the whole I am pleased and humbled by the competence and gravity displayed by our courts. When I read judicial opinions I usually find both the majority opinions and the dissents to be persuasive, even when I don't like the results. To me, that says that our courts are competent, and that our judges are trying hard to serve justice.

As an example, I agree with the Massachusetts decision (but not the results) which made same sex marriage legal there. I believe it is a straightforward application of the original meaning of the Massachusetts Equal Rights Amendment. So the judges got it right.

Who got it wrong? The legislature and the people. Why? The sexes aren't equal. If they were equal there would be one sex, not two. The law should read that the sexes should be treated equally when they are equal (which is nearly all the time) and differently when they are different. But that is not a matter for the courts, it is a matter for the legislature and the people.

I did not arrogantly come to this position on my own. I came to it via a genuine Constitutional scholar, Randy Barnett. He and I contend that Jim Crow should have been abolished by the Fourteenth amendment, but the Supreme Court nullified the priviledges and immunities clause. Frankly, I believe that were the Constitution interpreted according to its original meaning, we all would have more freedom in this country, not less. The Fourteenth Amendment was designed to break the slaveholders, and it would have if the Court had followed it as written.

What you appear to advocate is rule by a benevolent judicial elite. Jefferson recognized that as a form of tyranny. The courts were charged by the orginal Constitution to keep the power of Congress in check, and by the Fourteenth Amendment to keep the power of the states in check. They have failed to do so, it seems because they use a theory of interpretation which gives legislatures the benefit of the doubt. Perhaps you are under the misapprehension that I favor judicial restraint. Not exactly. The courts have been far too restrained in striking down unconstitutional laws, and not restrained enough in refashioning the Constitution in their own image.

As far as arrogance is concerned, I had the impression that the Constitution started with the words "We the People". I thought Lincoln was right when he said "of the people, by the people and for the people". It's our government, including the courts. If the legal system is too complex for the people to understand, that is a horrible flaw, and it is probably structural in nature. The law must be understandable by the common man. If it is not, how can he follow it? If it is, a common man should be able, with some effort, to mentally put on a judges wig and understand the justice of a ruling from the bench, even if he does not like the results.

It is my opinion that my unhappiness with the courts is for the most part structural, and that it's root causes are two: 1) Stare decisis enshrines bad rulings. Our judges are good, sometimes even great, but they aren't perfect. I don't know how to fix this. Do you? 2) The living document theory allows judges to change the meaning of the law.

The living document theory seems entirely contrary to the concept of the rule of law, Mark. Come down off your high horse and convince me that unelected judges with lifetime terms should have such power. Even good and benevolent judges will make mistakes, and given such power, combined with stare decisis, those mistakes are too difficult to overturn. I trust the Amendment process, which brings such decisions before the people as a whole. Clearly I disagree with those results on occasion, but I am willing to live with what I get, and to fix flawed Amendments by further Amendment. It is much harder to stomach a process where five Justices must be overridden by two thirds of each branch of Congress and three-fourths of all the State legislatures.

Yours,
Wince

Wince and Nod | Email | Homepage | 01.10.05 - 12:34 pm | #

Mr. Adams writes: "Notwithstanding the admonition that Justice Marshall was a friend to the 'real Constitution,' it was his ruling in Marbury v. Madison which institutionalized the idea of judicial review, the enshrinement of the power of the courts to declare an act of the legislature and/or President 'unconstitutional' Nowhere in the Constitution is this power even inferred, yet Marshall's Marbury opinion stands as the first and most powerful bit of 'judicial activism' in our nation's history."

That idea is common among judicial activists and their defenders. Their implication seems to be that Marbury v. Madison was a piece of sneaky business in which Marshall smuggled judicial review into the Constitution without the people’s knowledge or consent. That may be an apt description of their own methods, but it bears no resemblance to Marshall’s work.

In the Constitutional Convention in 1787, Madison had said that “a law violating a constitution established by the people themselves, would be considered by the judges as null and void,” and during debate on the Bill of Rights in 1789 he said that the “independent tribunals of justice ... will be naturally led to resist every encroachment” upon those rights — rights expressly asserted against acts of Congress.

Statements supporting judicial review as a check on legislative power were made in the 1787 convention by 17 of its members comprising, constitutional historian Edward Corwin wrote, fully three-fourths of the convention’s leaders. And more such statements were made during the ratification debates, by Marshall himself in the Virginia ratification convention, and by others elsewhere, including New York’s Alexander Hamilton in The Federalist No. 78:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the mediums of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. ...
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former."

That’s the same argument Marshall would later make in Marbury v. Madison. As legal historian Bernard Schwartz observes, Marbury “merely confirmed a doctrine that was part of the legal tradition of the time, derived from both the colonial and Revolutionary experience.” Marbury thus conforms to the intention of the framers and is, therefore, not an activist decision.

Regarding Marshall's views on the impeachment of judges, it's true that Marshall argued against the impeachment of Chase. Of this, it might be said that he contradicted the promise Hamilton had given the ratifiers in Federalist 81: "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of [Congress], while this body was possessed of the means of punishing their presumption by degrading them from their stations."

One is entitled to prefer the viewpoint of Hamilton to that of Marshall's. On the other hand, had any justice of Marshall's day proclaimed a right, or betrayed an inclination, to show the intent of the framers the utter disregard that is typical of judicial activists today, there is every reason to believe that Marshall, being true to his own words on what the proper limits of judicial power are, would have joined with Hamilton in holding that such presumption must be punished by degrading the offending jurist from his station.

More on Mr. Adams' new post later.

Karl Spence | Email | Homepage | 01.10.05 - 3:43 pm | #

Let's cut to the chase and bring this to a current reality. What contemporary decisions has got you guys so inflamed? The graduation prayer case out of Santa Fe is the only one I can think of in the last couple years that has the wingnuts in an uproar.

I'd really like to get a better handle on this. Maybe thinking like a lawyer makes me want a case by case analysis rather than competing guiding principles with which we all both agree, and agree to disagree with. (hint, Wince, this is a great opportunity for you to explain in some detail just what bugs you about the Commerce Clause.)

By the way one thing we certainly all would agree is that balance is necessary. I however don't perceive that Jefferson's judicial elite is running roughshod, especially since the confirmation of Clarence Thomas gave the conservatives a majority in almost everything but Wince's pet peive, abortion rights. Jefferson was also greatly alarmed by the possibility of mob rule and saw the courts and an educated populous as the front lines against anarchy.

The very nature of judicial decision making limits the court's powers. Case by case in matters directly only affecting the litigants. The fact that those decisions are followed not only by lower courts but by the executive and legislative branches is as much out of respect for the system as it is for the doctrines of Stare Decisis and Estopple. The living document idea I guess I am advocating allows for rejection of those doctrines when circumstances warrant. What you are advocating in your Amendment is far more rigid than those judicial creations. I think that is parochial and narrow minded, but typical.

So, tell so more about those specific decisions you feel are tyranical emanating from the Court that gave us Bush v. Gore. Isn't all this really just frustration over the fact that Roe v. Wade is still the law of the land despite the tinkering at the edges that has gone on to restrict these limited, balanced rights so very few young women actually excersize in the short time the court allows.

Guess what, I'm frustrated that we don't have universal health care. Sounds like the system is working just fine. Whenever I get two parties to settle a case, I'm always confident that I did a good job if neither gets everything they want. That's the nature of compromise and the beauty of our entire system. Frustration keeps us hungry to make things better and compromise teaches each generation how to get along in a diverse nation which is our ultimate strength.

Mark Adams | Email | Homepage | 01.10.05 - 10:05 pm | #

Mark commands, and I obey. Yes, I am angry about, among other rulings, the Santa Fe case. It involved prayers before high school football games, by the way, not at graduation ceremonies. In my family's hometown, they went like this: “We ask that everyone here today return home from this game healthy and safe; that everyone here, players as well as onlookers, hold fast to our ideals of fairness and sportsmanship; that all of us remember to cherish each and every day granted to us here on this Earth.”

The prayers were voluntary and nonsectarian, and they meant something important to people in my town, my state, and across a wide region of the country. But that didn't count with Mark and his friends. All those praying millions were "wingnuts," and their ways had to be reordered, by court command, to his satisfaction.

I want a Fair Construction Amendment because I'd like to deprive Mark of the ability to bully people he despises.

Then there's the matter of Kenneth McDuff. He murdered three teenagers in 1966 and was sent to Texas' death row for it. But because of federal court decisions, his life was spared. He should never have seen the outside of a prison. But because of federal court decisions, he was paroled in 1989.

Three days after his release, he had killed again. Before the law caught up with him and sent him again to death row for the murders of Melissa Northrup and Colleen Reed, he had raped and killed more than a dozen young women.

There's also Rachel Thompson.

In 1973, she and her 11-year-old sister, Amy, were abducted from a convenience store parking lot in Casper, Wyo. Their captors raped and beat Rebecca, who was 18 at the time, and then threw both girls off the Fremont Canyon Bridge, 112 feet above the North Platte River.

Amy was killed in the fall, but Rebecca survived with a broken hip.

The perpetrators, Ronald Leroy Kennedy and Jerry Lee Jenkins, were sentenced to death, but in 1977, their sentences were reduced to life imprisonment when Wyoming’s death penalty was overturned.

Rebecca became increasingly distraught in later years, fearing that her attackers would win parole or even a new trial. (Thanks to federal court decisions, both were very live possibilities.) In 1992, she returned to Fremont Canyon Bridge and plunged a second time into the North Platte River, joining Amy in death.

Natrona County Sheriff Dave Dovala saw it this way: “She was raped and murdered 19 years ago, but she just died Friday.”

To which I'd add: Rebecca's killers included not only the men who attacked her, but also the criminal justice system that spared their lives.

I want a Fair Construction Amendment because I want a world in which Kenneth and Ronald Leroy and Jerry Lee die, so Rebecca, Melissa and Colleen can live.

Oh, and what about abortion? Here's what Ronald Reagan (Mark would probably call him a "wingnut") had to say about it: "The real question today is not when human life begins, but, What is the value of human life? The abortionist who reassembles the arms and legs of a tiny baby to make sure all its parts have been torn from its mother’s body can hardly doubt whether it is a human being. The real question for him and for all of us is whether that tiny human life has a God-given right to be protected by the law --- the same right we all have."

Mark writes: "Isn't all this really just frustration over the fact that Roe v. Wade is still the law of the land despite the tinkering at the edges that has gone on to restrict these limited, balanced rights so very few young women actually excersize (sic) in the short time the court allows."

What Mark calls "so very few" is, of course, tens of millions of abortions carried out in our country over the years since Roe v. Wade was decided. That's tens of millions of innocent lives snuffed out before their owners ever had a chance to take their first breath.

Mark apparently considers those lives to be unimportant, since, having been killed before birth, they were not "persons" under the law. Whatever abortion kills, it's not people. It's just a "fetus." Subhuman. Or, to put it in the original German, "untermenschen."

Suppose Mark is wrong, and Reagan was right? Suppose unborn human beings are, as the Declaration Mark's Web site celebrates put it, "created equal," endowed with an unalienable right to life?

If so --- and there's no real reason to doubt it, other than pro-choicers' desire to feel good about themselves --- then Mark is playing Goebbels to the abortionist's Eichmann. And the rest of us are the proverbial "good Germans" who have been going along with it.

I want a Fair Construction Amendment because I want my country to once again be true to its founding principles, and not be treating the unborn the way Adolf treated Anne Frank.

There's more, of course, but that should be enough for Mr. Adams.

He claims that it's the "living" Constitution, and not merely his own political preferences, that requires that innocent unborn human beings be killed, and convicted rapists and murderers be spared, that prayers (and, under McCain-Feingold, even political speech) be silenced, while pornographers have free rein --- in short, that he and his faction should rule, while fellow Americans who are his equal in every fundamental right, should knuckle under.

I prefer the real Constitution to Mr. Adams' "living" one.

Karl Spence | Email | Homepage | 01.11.05 - 10:17 am | #

Mark,

Here's one you'll like from 1885, Santa Clara County vs. Southern Pacific Railroad. In this case the Court apparently (but maybe not) decided that corporations are persons under the Fourteenth Amendment.

Corporations are not persons. The Constitution does not give them that status, and futhermore, I suspect that it is actually unconstitutional under the original meaning of the Constitution for either state or federal law to declare them such. The Constitution protects officers, stockholders, employess and customers or corporations, but not corporations.

Yours,
Wince

Wince and Nod | Email | Homepage | 01.11.05 - 1:23 pm | #

Mark,

Here's another, paraphrased from Restoring the Lost Constitution by Randy Barnett, chapter eight. The Bill of Rights originally only applied to Congress. Slave states routinely suppressed abolitionist speech and newspapers. Congress passed the Civil Rights Act of 1866, which Johnson vetoed as unconstitutional. Congress overrode, but worried because Marshall had ruled that the Bill of Rights did not apply to the States, so they passed the Fourteenth. But the Slaughter-House Cases of 1870 gutted the priviledges and immunities clause of the Fourteenth. And Jim Crow descended on the land.

What right did the Court have to invalidate this clause a mere two years after it had been ratified? Do you contend that matters had so changed in those two years that the Court was responding to some modern condition? This was pure usurpation, and the five justices in question should have been impeached.

Are these recent enough for you?

Yours,
Wince

Wince and Nod | Email | Homepage | 01.11.05 - 2:09 pm | #

I'll throw in my 2¢, too.

I'll begin with U.S. v Cruikshank, since Wince started with the Slaughterhouse Cases. Slaughterhouse inserted the blade, Cruikshank did the actual gutting.

Then there's Wickard v Filburn which essentially gave Congress the power to regulate pretty much anything they felt like under the umbrella of the Commerce Clause. We've seen the current Court rein in some of this, though. That's an example of the Court not using its power to rule a law unconstitutional.

And then there's U.S. v Miller. A more artful dodge I've yet to see, and the cascade of really poor lower-court decisions based on erroneous interpretation of what Miller actually said has demonstrated the really severe problems that stare decisis brings.

As to Roe v Wade and your assertion that "the short time the court allows" is a hindrance, the question seems obvious to me that at some point during gestation a fetus becomes a human being, and human beings have rights. At that (nebulous) point, the fetus's rights must be weighed against the rights of the mother, so a reasonable cut-off period should exist. The court's concurrent decision in Doe v. Bolton, however, took the time-limit teeth out of the ruling. The essentially undefined "mother's health" restriction has seen to that.

You seem to imply that there's actually a first-trimester limit. In actuality, there is not.

BTW, I support unrestricted availabilty for first-trimester abortions. After that, I have a problem because I really do believe in the rights of individuals.

You want "universal health care"? Pass an amendment. The power for that (and a lot of other things the federal government has taken up) does not exist in the Constitution. If you want it, you'd best get a LOT of people to support you. But I can certainly see someone on a bench somewhere declaring that it's a right we're all entitled to. Probably two or three. In the 9th Circuit.

Oh, and I don't support Karl's amendment either, just so you know. I see it as pretty much unworkable from a practical standpoint.

Kevin Baker | Email | Homepage | 01.11.05 - 10:49 pm | #

I'll choose to ignore Karl's violation of Godwin's Law and not so subtle innuendo and plow right on through. I guess technically I started it, but I didn't mean it personally. I wasn't making an ad hominem metaphor, or at least that wasn't my intent.

Karl, if you want any respect from me at all, just come on out with it like a man. You can't hold a candle to Wince when it comes to the polite admonition and your distaste for me and my like is palpable, so don't even try. Go ahead and call me a godless, amoral, Nazi if that's how you feel -- why beat around the bush? But when you set up a straw-man and presume to extend their attempt at a fair characterization of the facts as some kind of homicidal monster's desires, it works much better when the straw-man can't or at least isn't expected to respond.

I value the life of an 18 day old fetus just as much as that of an 18 year old Marine. Can you say the same and will you go to the same lengths to keep each from meeting an untimely end? As I see it, both a young girl's election to have an abortion and the election to fight in Iraq are choices, hard choices that none of us have had to make. I've done some counseling on one and spoken out about the other but that doesn't make me an expert. But I also accept the fact that those who have made those decisions believed they had no other choice. We live in an imperfect world and imperfect decisions are an everyday occurrence.

Karl Said: "I want a Fair Construction Amendment because I'd like to deprive Mark of the ability to bully people he despises."

Where the hell do you get off presuming that I despise anyone, or for that matter who my friends are? And I don't particularly like you and your friends shoving a prayer down my or my kids throat. To me, that is bullying. My personal relationship with the Almighty is just that. personal. Not to be shared, put on display, testified to, or to be presumed to be anything but my personal, private right to believe or not believe as I see fit.

One thing that our founders very meticulously enshrined in our Constitution, in direct contradiction to the English Common Law it did adopt, was ever (without appropriate Amendment of course) endorsing a State Religion. Don't you get it, a "non-sectarian" prayer is still a prayer. Prayers are bad, they are evil. Prayers are the devil. Deal with it. Do I really believe that? Maybe, maybe not. That's not the point.

The point is I have a right to believe that way. I have a right to believe that Satan is my deliverer and your prayers weaken me. I have a right to believe that by not naming and singling out exactly what god I'm praying to, he or she might be insulted and make my tires go flat in the parking lot because my God is a jealous God and just found out, thanks to you bringing her attention to our little corner of the planet, that I have much cooler wheels than she does and that is simply unacceptable.

Do I have a right to believe that way in your world view? Do you respect that right if not the belief itself? I don't have to respect your particular version of worship, but I do, because I believe that it is the proper way to behave in the civilization I believe we should live in.

I have no problem with whatever you believe, as long as you don't believe it is your mission to evangelize everyone else. Actually, even that is too harsh because I really have no problem if you feel it is you divine duty to spread the "Word." But a school is a special circumstance where young people, unaccustomed and unprepared to defending their beliefs which might be in opposition to their peers and the authority figures in charge of their activities, are in an untenably coercive situation.

Naturally you can disagree with this position, but as I said, deal with it. It's the law. I think 65 MPH is ridiculous too, but that's where I set my cruise control on the turnpike.

I've dealt with my former passion, and "the law" was what made me see the light. Up until I took a seminar on the death penalty in 1988, I was absolutely 100% against it. Now, I can't say that I'm an advocate of it now, but I have become "dispassionate" about the issue as a result of about 200 hours of intense research. It helped that my professor instructed us from the first day to simply accept that it is the law of the land.

Taking my emotional response out of the equation and looking at the rationales behind its development and use rather than the anecdotal and inevitable injustices that fall through the cracks has allowed me to get to the point (hardly a liberal position) that there are indeed many cases where death is the proper and sometimes required sanction for particularly despicable crimes. I'm satisfied that although not everyone who deserves death will get it, and there will be mistakes where innocents are gassed, but by an large the system is designed to ensure that in the vast majority of cases death will only be meted out when absolutely deserved to the very best of our human capacity to make sure of such things.

Look, if I for one moment thought that the you defense of the sanctity of life you so revere also extends to an anti-death penalty and anti-war stance (including demanding that we withdraw all our forces currently in Iraq and Afghanistan in the name of your righteous indignation over the idea that your God fearing nation would ever kill anyone in or out of the womb), I might give you some credibility in this. But unless you can take the same morally consistent view as the Pope, dry your false tears and swallow your hypocrisy. That hypocrisy can be seen as merely a mask of the larger desire to punish those evil teenagers who deserve to pay the consequences of pre-marital sex, to force a return to the Ozzie and Harriet world of a yesteryear that never existed.

As I discussed with Wince before, Roe is an extension of privacy rights established in Conn. v. Griswold and other related cases which prevented the State from regulating or prohibiting non-marital sex by refusing to allow non-married adults from purchasing condoms. Resistance to Roe is just more social engineering that has the added benefit of striking an emotional -- and therefore irrational -- chord.

Now come on guys, can't you do better than that? The most current case you can cite is 13 years old and most of them are over one hundred. You guys are fighting at shadows.

Be patient. Sandy O'Conner already has written extensively on the subject that Roe is on a collision course with medical science. Viability is coming earlier and earlier. Once we get to the point where we can safely extract a fetus, and raise it to healthy adulthood (at a realistic tax-increase-neutral price), then Ms. Roe and her sisters will have no privacy right to override the State's interest in protecting the developing child. That or Herr Bush can pack the Court with two or three of your fellow travelers and do to Roe what Brown v. Bd. of Ed. did to Jim Crow.

The system really does work, really, it's just slow and it's quite apparent that you don't entirely appreciate what the "real" constitution says.

Shep had the same problem digesting the idea of a corporate "person," but it is evident from a comprehensive reading of the Constitution that this was precisely the framers' intent. This was my response in the comments to my post on href="http://markadams.blogdrive.com/archive/ 730.html">Activist
Conservative Judges:

Actually, I do approve of the idea of a corporation (or like entity) as being referred to legally as a "person." The legal fiction of a corporate "person" is evidence in a close analysis of the Constitution itself which makes clear the framers' intent to continue this usage from English Common Law.

Note the distinction of the use of the word "citizen" from "person" in the document and the document and its amendments.

Being a "citizen" is a requirement in Art. I, Sec. 2. of a "person's" eligibility to become a Representative. The same verbiage is found in Art. I, Sec. 3, for the Senate. Similar language is used to describe the eligibility of a "person" being a "natural born citizen" before becoming President in Art. II, Sec. 1.

Notice carefully the judicial implications. Art. III, Sec. 2, (and as modified by Amend. XI) limits federal jurisdiction of Art. III Courts to "citizens," (as opposed to Art. II Courts like the Court of Claims or other creatures of Congress), which excludes these creations of state law from using federal "diversity" jurisdiction. There must be a compelling "federal question" (usually under that dang Commerce Clause) for a corporation to be sued or to sue in federal court. A "citizen" doesn't have this problem if all the members of the other side (including a corporation) are all from another state. The citizen has venue choice in a civil matter.

Art. IV, Sec. 2 provides that only "citizens" are entitled to the same Privileges and Immunities, but then extends the power of a state to extradite a corporate "person." For instance, a corporation does not have a common law "privilege" against self-incrimination despite the language of Amend. V, which talks of persons. A corporate record cannot be "privileged" nor can a corporation invoke such a privilege under the 5th to prevent a corporate officer from testifying against it.

But the rights against improper search and seizure in the 4th Amend., the right to trial by jury and due process in the 5th and subpoena power in a speedy trial found in the 6th DO extend to corporate "persons."

Note especially the extension of lawyer-client privilege to corporations in the 6th's guarantee to "persons" a right to counsel despite the Privilege and Immunities" exclusion earlier. The other common law privileges against compelled testimony are spousal, clergy and physician, which are inapplicable to corporate persons and thus disallowed. The interplay is truly masterful and exactly reflects the framers' intent.

Likewise the Constitution speaks of Habeas Corpus as a privilege in Art. I, Sec. 9, and therefore it can be said that this and the other extraordinary Writs, (mandamus, quo warranto, procedendo and prohibition) may be unavailable to corporations, at least in federal court, although state courts are free (and possibly could by the 9th Amend.) to honor such use of them by a corporate "person.".

Amend. XIV ratified in 1868 regarding Citizenship brings it all together and follows the person/citizen distinction in determining their respective rights. Corporate "persons" get due process and equal protection, but not Privileges or are they counted when determining how many representatives a state gets.

Again in Amends. XIX, XXIV and XXVI, only citizens, not corporate "persons" can vote.

To get rid of the idea of a corporation having legal recognition under our system would take a complete rewrite of the document, not merely a piecemeal evolution by courts focusing on one or two clauses at a time. It works, and that's what they intended.

Kevin, Nicely done, but really? Miller? Oy. That, bar none, has been the most -- shall we say -- creatively interpreted case of the last century. Did you really have to bring that one up?

A very wise judge said to me before he left the bench to become Rehnquist's clerk: "The law is what any given judge and jury say it is on any given day."

The American judicial system is the best and most efficient and fairest possible in a free society. This place isn't supposed to be what you want it to be but what we all -- and that means everyone -- can live with.

Mark Adams | Email | Homepage | 01.12.05 - 12:38 am | #

I thank you, Mark, for apprising me of Godwin's Law. Being a veteran of Old Media and a relative newbie in this medium, I hadn't heard of that law before. It certainly addresses a dire need, for Holocaust analogies are way overused in just about every forum, on or off line. Godwin's Law, however, needs a loophole. It should not apply when the analogy is apt.

Such a defense against Godwin's Law can only be entertained, of course, when the thing being compared to Nazism involves an evil on a par with the Holocaust. That is, it must involve the mass murder of innocents --- as abortion does, if the "thing" abortion kills is indeed a human being.

All the same, let me make it clear, if I haven't already, that while I believe Roe v. Wade did indeed usher in an era of mass murder in America, there's plenty of guilt to go around. As in the Holocaust itself, the guilt of those who (like me) went along with what they knew was evil may exceed even that of the genocide's true-believer instigators.

But on a spiritual plane, relative guilt is a matter for God alone to judge. So, Mark, don't think I'm looking down my nose at you. I'm a former liberal myself, one who (as they say) was mugged by reality long ago.

Having spent some time in both camps, I will say that the tendency to despise others seems stronger on the left than on the right. It's quite common for liberals to denigrate conservatives with terms such as "wingnuts" and even more dehumanizing ones like "Neanderthal," "dinosaur," "troglodyte," "yahoo," "knuckledragger," etc.

On the right, there are so many former liberals like myself that it's quite uncommon to hear liberals spoken of as a lower form of life. The attitude conservatives more typically have toward liberals is "come off it," as in "come off your high horse," to quote Wince's gentle admonition to you of a few posts back.

The fact that you trouble yourself to debate people such as Wince and me, rather than simply consign us in your mind to the antediluvian swamps, shows that you have more respect for those with whom you disagree than many liberals do. Take care! Without that assurance of moral superiority, you risk being converted. Then you'd have to change your Web site motto to "Conservatives at Work."

Mark, as to your idea that a constitent defense of the sanctity of life requires that one also take an anti-death penalty and anti-war stance, consider these points.

Suppose a man is on trial for murder. Is it hypocrisy to say, "if he's guilty, hang him; if he's innocent, set him free"? The idea that laws must treat the guilty differently from the innocent is hardly an advanced concept. Do you really not grasp it?

The pope grasps this. His views on the death penalty are a great deal more nuanced than generally acknowledged by those who invoke it as you just did. Though I take it the Catholic Church's doctrine is not your own guiding authority, for what it's worth let me tell you that, unlike its stance on abortion, the church's stance on war and the death penalty is not categorical opposition.

The church's view on war has been summarized as the "just war" doctrine. It requires that certain conditions be met, such as that civilian lives be preserved when possible, that the evil to be averted by going to war outweigh the evils necessarily involved in that war, that there be a reasonable prospect of success in averting those evils, etc.

The wars in Afghanistan and Iraq may or may not meet those criteria. Certainly the prospects for success seem greater in the former country than in the latter. But let's be clear about the evil the U.S. is trying to avert there.

If the terrorists should continue to be abetted and encouraged by the larger Muslim world in hating us and plotting against us, they may eventually succeed in devising, buying or stealing one or more nuclear weapons and in incinerating one or more American cities. If that should happen, what then? No one knows. A country in possession of a large nuclear arsenal has never been nuked before. All our scruples about mass murder might fly out the window. The war on terror could easily become a war of extermination between America and the Arabs.

To avert such a damnable horror, Americans went into Iraq with the idea that we could win that nation over, by freeing it from the very murderous Saddam regime and setting it on the path to democracy. With freedom and prosperity spreading to the rest of the Arab world, the terrorists would be neutralized, the horrible peril they pose to our loved ones and our way of life averted.

A noble goal, perhaps yet achievable. Or maybe it was a fool's errand. But to avoid a nuclear holocaust and the death of millions was the idea.

The point is that, however the Iraq war turns out, it's utterly irrelevant to the question of whether unborn human beings have an unalienable right to life.

Concerning school prayer, I say your stance constitutes bullying. You say it's the reverse, that those who presume to pray in your presence on in the presence of your children are the real bullies.

Consider the following statement from a 19th-century New York superintendent of schools. It was cited in modern times by the New York Court of Appeals:

“Both parties have rights; the one to bring up their children in the practice of publicly thanking the Creator for His protection, and invoking His blessing; the other of declining in behalf of their children, the religious services of any person in whose creed they may not concur, or for other reasons satisfactory to themselves.

"These rights are reciprocal, and should be protected equally; and neither should interfere with the other. Those who desire that their children should engage in public prayer have no right to compel other children to unite in the exercise, against the wishes of their parents. Nor have those who object to this time, place or manner of praying, or to the person who conducts the exercises, a right to deprive the other class of the opportunity of habituating their children to what they conceive an imperious duty.

"Neither the common school system, nor any other social system, can be maintained, unless the conscientious views of all are equally respected. The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools.”

That statement, I think you will agree, displays a mild and non-bullying attitude. The New York court, at least, found it persuasive. Unfortunately, it was overruled in 1962 by the Warren Court’s Engel v. Vitale decision, the “landmark” ruling that outlawed public school prayer.

Engel’s upending of the balance so carefully sought by the New York superintendent has ever after been known among liberals as an “expansion” of “individual rights” — as if the losers in the case were themselves not individuals with rights of their own.

To someone who, as you do, supports the Engel doctrine, those other people's rights don't appear to count. That's why I characterized your stance toward them as bullying.

As for whether you despise those losing litigants, I take it as a rule of thumb that a person does not apply the term "wingnut" to someone he respects. And you yourself have repeatedly said in these posts that a society not transformed by judicial activism such as the school prayer decisions "could not even approach a society worthy of respect."

"Respect" and "despise" are antonyms, are they not?

Karl Spence | Email | Homepage | 01.12.05 - 2:53 am | #

Mark,

Yes, Miller. Because it illustrates the underlying problem: The fact that "The law is what any given judge and jury say it is on any given day."

In a system based on rule of law, that ambiguity can destroy the trust required to sustain it.

As I said at the original post over at the Volokh Conspiracy, we've had over two hundred years of entropy, "The law is what any given judge and jury say it is on any given day," and if we don't take some corrective measures, eventually the system you claim to love is going to collapse into chaos because the people interpreting and enforcing the law have taken it upon themselves to define it - just as your quotation explicitly illustrates.

Sorry Wince. I left a tag open.

Kevin Baker | Email | Homepage | 01.12.05 - 8:21 am | #

Nice try Karl, but I count two false analogies and a specious appeal to authority in your reasoning as well as assuming facts not in evidence.

Try to get this through your head on school prayer (I'll leave the others aside for now), the opposite of establishing religion, which I'll assume that as a strict constructionist you acknowledged as an acceptable prohibition, is not merely remaining neutral as to which particular sect should be adhered to, but rather remaining completely out of the religious business altogether.

I already know that Wince refuses to even consider this position, but maybe this analogy will serve. Karl, in your amendment proposal you have advocated quite strongly a position which can probably be summed up in the "Separate But Equal" Doctrine. Courts shall not legislate -- period, since that is the sole prerogative of the legislature.

I feel safe to say your position is that even if a court, through chicanery or honest and thoughtful analysis crosses that demarcation -- even a little bit, with the best of intentions and in the fairest possible way -- it should be punished (notwithstanding that I see such punishment in itself a violation of the separation doctrine with the legislature reaching into the judicial process). By it's nature, dealing with one case an making an arguably legislative decision which on its face only affects the litigants in question, you would still call for the court to be sanctioned in a very narrow case because of its repercussions.

That wall between the Court and Congress is violated if crossed just a little bit. Jefferson is the Founder who popularized the phrase "Separation of Church and State." That wall is laid on just as firm a foundation as the "Separate But Equal" Doctrine pertaining to the branches of Government. Even a little bit of fair, non-denominational religion is to much when forced (yes forced) on individuals who would not partake in such rituals were it not for it being administered by authority figures and to openly resist would subject the individual to social scorn by their juvenile peers.

Citing the prayers before the opening of Congress and the Court will not be persuasive. They are distinguishable and have been distinguished.

Let me also let you chew on the ethical implications and extend it by analogy to the school prayer case. Both Congress and the Bar (but sadly not the President) have imposed on themselves the ideal that they shall be subject to sanction for behavior which even has the "appearance of impropriety." Although this is not strictly a legal argument, I contend that permitting school prayers sanctions and endorses them by implication and reeks of improper mingling of the governments and religion. It has the appearance of impropriety.

Naturally you should jump at the fact that I am being inconsistent in my "liberal" interpretation of the Constitution by buying into the Warren Court's conclusion that there is a "penumbra" of privacy rights implied in the document which in it's furthest extension results in Roe, yet would strictly construe the prohibition of Establishing Religion (just as I accuse you of being inconsistent regarding your strict construction of all parts of the document but the Establishment Clause).

It should come as no surprise however, that I don't believe my rationale is inconsistent or my logic flawed. My study and research into the Constitution has led me to the conclusion that the cornerstone of our free society can be summed up as the "right to be left alone." The government must be required to show a legitimate interest in an issue when making any law at all, and must show a compelling interest in that issue if an individual's freedoms and/or rights might be infringed. You can show no legitimate, let alone a compelling state interest in conducting a prayer in school.

As I said before, Roe is on a collision course with itself and was never perfect to begin with (as is the case with most issues where rights must be balanced), but since I take the stance that a would-be mom's rights are no more or less legitimate than her fetus, for the state to pierce her right to do what she will with her own body goes beyond legitimate but into the realm of compelling when it is possible to actually save that life.

I have never thought of life as beginning at one point or another, but as a continuation. Morally I cannot argue against Monty Python's diddy that "Every Sperm Is Sacred," (which means that I am probably closer to heaven since I started blogging instead of cruising for pictures of naked ladies.) When in the course of that continuous dance of life it becomes possible to save that life irregardless of the wishes of it's mother, then (and only then on that slippery slope of life) does it become incumbent on the state to act on behalf of that independent life.

Pass the anti-abortion amendment. Your argument that it is genocide is not without merit. But just as death penalty advocates have done, do it through the legislature and quit bitching about the courts. I assure you, had Thurgood Marshall and John Brennen had their way, there would be no death penalty in the USA. What they did accomplish was make the death penalty only available in the most egregious cases and only when the courts and prosecutors are scrupulous in their procedures. If you don't have the votes, live with it and try to mitigate the evil you resist as much as possible. That my friends is democracy at work.

Abortion should be rare and never an attractive choice. No young girl should ever think that it is her only option. To that end, to end the "genocide," I would suggest that you actively support the distribution of condoms, fund universal distribution of birth-control pills and similar medical options and consider it a vaccine against unwanted pregnancies. Unlimited welfare for unlimited numbers of children born out-of-wedlock, the old method, had the opposite of the desired result and is no longer a viable or politically attractive option. So let's treat the cause and not the symptom. Prevention efforts must be increased, on all fronts. Insistence on abstinence-only is narrow-minded and even more counter-productive.

Even if we can't abolish abortions, we can reduce them tremendously if we don't get bogged down in Victorian morality. Judging by the dated nature of the authorities you cite, you need to start accepting the realities of the 21st century, and marvel at the adaptability of the Constitution’s guidance.

Mark Adams | Email | Homepage | 01.12.05 - 10:12 am | #

Mark,

You quoted: "The law is what any given judge and jury say it is on any given day."

But the jury can be overruled on appeal. I've also heard that the Constitution means what five Justices say it means.

Here's an exact parallel, translated from the French: "The state, that's me."

You have given as clear an exposition of judicial tyranny as I can imagine, especially since you refuse to consider impeachment as a remedy. Sorry, Mark, but redefinition of the Consititution is usurpation, a high crime if ever I've heard of one. I notice you were unwilling to defend the court's gutting of the privledges and immunities clause a mere two years after ratification. I'm going to bulldog that point, because it destroys your arguments.

You seem to think I'm mad about recent decisions, and I am, but, unlike most, I don't reflexively blame the courts, nor consider them always the right remedy. My beef with the courts is usurpation, and it goes back a long way. That's a principled stand, and you have yet to expound upon your countervailing principle.

Can the living document theory protect us against judicial tyranny? If not, how can we rememdy the situation, and do the benefits of the living document theory actually outweigh the danger it represents?

Yours,
Wince

P.S. You don't remember my stance on separation of church and state in the public schools very well. I'm in favor of it. I just don't think anything less than school choice can actually achieve it. Your secular schools are cramming religious beliefs down everyone's throats. They just deny they are doing it.

Wince and Nod | Email | Homepage | 01.12.05 - 11:13 am | #

Mark, would you accept Jefferson’s “Bill for Establishing Religious Freedom” as a good exposition of the First Amendment's ban on a congressional establishment of religion? It provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

No compulsory church attendance. No government collection of church tithes. No penalties for heresy. No religious tests for the rights of citizenship. Those principles do not constitute a ban against any public, official acknowledgment of God.

So far were they from being understood as such, they were prefaced by Jefferson himself with this official pronouncement, contained in Section I of the bill, which declares “that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone.”

Imagine the apoplexy on the left if the words “Almighty God,” “his supreme will” and “the holy author of our religion” were to appear in a piece of legislation today! Yet by Jefferson's lights, that was perfectly OK.

Jefferson also, I understand, approved the employment at the University of Virginia of ministers of religion, to be paid for teaching the tenets of their various religions. At a public educational institution. Again, either he was wrong about whether this would be OK or you are wrong about it.

Mark, you write, "Citing the prayers before the opening of Congress and the Court will not be persuasive. They are distinguishable and have been distinguished." But the Congress that adopted the Bill of Rights not only hired chaplains and opened its sessions with invocations. It also renewed the Northwest Ordinance, by which Congress governed the Northwest Territories. It reads in relevant part: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.” — a far cry from today’s judge-written standard that public education must “neither advance nor inhibit” religion.

So either the first Congress's left hand didn't know what its right hand was doing, or you are mistaken in suggesting that the original intention of the First Amendment was to ban any encouragement or accommodation of religiou in public education.

In his book "Reconsecrating America" legal scholar George Goldberg comments: “In the beginning, there was no tension between the ‘establishment’ clause and the ‘free exercise’ clause [of the First Amendment]. ... No one expected the federal government to be hostile to religion. In its own proper sphere, where its own affairs were concerned, it was naturally assumed that the federal government would maintain friendly relations with the various faiths represented by its members. Thus the first Congress, which proposed the Bill of Rights, appointed chaplains at the outset of its first session. It also appointed chaplains for the armed forces and resolved that George Washington’s inaugural should culminate in a divine service at St. Paul’s chapel, an Anglican church. Indeed, on the very day that it approved the First Amendment Congress called upon President Washington to proclaim a day of ‘public thanksgiving and prayer.’ Sessions of the United States Supreme Court were, as they still are, commenced with a prayer that ‘God save the United States and this honorable Court.’ ”

All of this gives the lie to your position that "even a little bit" of government endorsement of religion is too much, under the Constitution's original meaning.

So stick with the position that is credible on its own terms: that whereas public displays of piety and accommodation of religion in government and in the public schools were fine and dandy with the framers, they're not fine and dandy with you, and you think the courts should heed your opinion, let the "living" Constitution "grow and evolve," and cast the First Amendment's original meaning aside.

You'd still have to deal with the fact that the framers, one and all, insisted that the Constitution's original, ratified meaning is the only meaning it can truly have. But at least you wouldn't be weaving fairy tales about what the framers thought was acceptable or unacceptable in terms of school prayer.

Mark, as to the idea that I favor a "strict construction of all parts of the document but the Establishment Clause," let's clarify what is meant by "strict construction."

In today's debates, those who favor interpreting the Constitution by its original meaning are often called "strict constructionists." But that's not what the term meant to Marshall and his contemporaries.

In Gibbons v. Ogden, Marshall wrote: "What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded."

Your comment about my favoring a "strict construction of all parts of the document but the Establishment Clause" seems to suggest I am a "strict constructionist" as Marshall understood the term. I am not. I believe in what Marshall called "a fair construction," one that "gives to language the sense in which it is used, and interprets an instrument according to its true intention.”

This "fair construction" may be either a strict limitation on governmental powers, or a broad grant of such powers, according to how those powers were understood by the framers and ratifiers.

If as time goes by that original understanding proves inadequate to the needs of the day, then ---according to the men I quoted at the beginning of these posts, whom you say you revere --- the thing to do is pass an amendment changing that original meaning to one that suits us better.

To do otherwise --- to let the meaning be changed by five justices instead --- leads to what Bork called the "gentrification" of the Constitution, in which it becomes more and more the creation of the social class from which judges, lawyers and law professors are drawn, and less and less the creation of "We the people," with a rightful claim on the people's loyalty and obedience. That transmutation is not a good thing.

Karl Spence | Email | Homepage | 01.12.05 - 3:01 pm | #

No Wince, it wasn't that I was unwilling to defend the P&I decisions, it's just that it's been almost 20 years since I last read the them, but I remember that I was not pleased with them and considered at the time that they were judicial activism from the right, but what's done is done, just like the dilution of due process, and you fight the winnable fights. But as I said, it's been a long time.

Karl, as I said, neither persuasive and previously distinguished. I've seen each of the prayer examples you give in the minority opinions of the relevant cases. Your tyranny of the judiciary will last only so long as you cannot get another Scalia to take the place of Ginsberg or Kennedy.

Jefferson didn't have the votes either. If your arguments were as persuasive as your zeal, there would be no controversy.

Still not one contemporary case, and now you interject an over-the-top proposal by T.J. that even he knew never had a hope in hell of becoming reality. That was just to, once again, play your tired "gotcha" game with me. That was a serious stretch just to prove that I was mistaken on a side issue which did nothing to advance your argument. Karl, you're the one advancing the proposed change so you bear the burden of persuasion.

Not only am I unimpressed, you've attempted to alienate me at every turn. Not the way to win a convert. Always a fun exercise, but hardly productive. Unfortunately for you, I don't share your burden and have no delusions that you would come around to my way of thinking when you made your ridiculous proposal in the first place.

Persuasion is an art. I really don't want to persuade you of anything except the fact that your proposal will persuade few, if any, other than those zealots already on your side. Your dickish methods also leave much to be desired. (Sorry Wince) Stick to the point and for god sakes make some contemporary arguments which relate to real people right now or your quaint notions smack of irrelevancy. And don't fall for my smug, dismissive nastiness. It's a trick, nothing more. I should have been your foil, not the reverse. Instead of promoting the value of your plan, you waste digital ink tearing me down?

I take it that what you really hate about the Rehnquist Court (which is the most conservative panel since the New Deal you folks are hell bent on destroying) is not what it has done, but what it hasn't. You want it to reverse the current laws. Unbelievable that the same court that gave us Bush v. Gore is still too liberal for you. If this didn't make me laugh, and laugh very hard indeed, I might actually think that you guys were being intellectually honest.

Can I ask why on earth you folks insist that we remain locked in an 18th century culture enforced by a rigid legal system where the judiciary is no longer independent but subject to the whim of popular sentiment? To me that is what you are supporting, or at least that is what will result.

Isn't the fact that the Islamic fundamentalists want to prevent their culture from advancing past the 12th century part of our conflict with them? I for one don't fear the future. You guys fear the present. What a waste.

If it really is a controlled bench you desire, and not just promotion of the tired right wing agenda, then make your case relevant to current events and come up with some examples OTHER than the right's usual bug-eyed monsters of abortion and school prayer and it's cousin creationism. If that's all you can argue, why on earth would you expect any support beyond your true believers?

Mark Adams | Email | Homepage | 01.12.05 - 8:35 pm | #

Mark,

OK, here's another. I am against the Federal Ban on Partial Birth Abortion because I think it's unconstitutional. (I'm perfectly happy with it being enacted fifty times by fifty state legislatures). It is justified within the bill as via the Congressional power to regulate interstate commerce.

I'm sorry, but aborting a baby is only interstate commerce if the operating table straddles the state line.

That power was redefined by the court so broadly that a farmer can't grow crops to feed his animals without the crops being subject to federal regulation because of the economic impact crosses state lines.

What horse hockey. (Which the farmer could have used for fertilizer.) The economic impact of local economies crossed state lines in the Founder's time too. I understand if you want the Feds to have this power. Pass an amendment, then. Back when this case was decided (Wickard v. Filburn, 1942) I think you had the votes. And given how many laws would be overturned were the original meaning restored, I think you would have the votes NOW. Since that time Congress has abused this power time and again to make national law where state law should rule.

I like federalism. I like fifty seperate political laboratories. I like being able to vote with my feet without crossing an international border. Giving up federalism should be subject to a national debate like we get with an amendment, not judicial usurpation.

I regard federalism as a fabulous way for blue staters to get the government they want at the same time that red staters do. Go ahead, let Ohio or California pass universal health care, with some reasonable safeguards to keep people from abusing it by moving there when they get sick. Cool by me, I just won't live there.

Frankly Mark, given that you don't favor what you call judicial activism from the right, I don't know why you aren't willing to do anything at all to stop judicial activism from any direction. You certainly haven't made a single counter proposal. You certainly have not attempted to defend your position on its philosophical merits, although you have done well at defending individual cases. The main thrust of your argument has been to question our motives.

Oddly, although you and Karl may have fallen into that trap, I haven't. You know I could. Time after time you've seen the argument that liberals go to the courts when the legislature is too slow or the voters are too backward, depending on the living document to get what they want. Do you want to go there? I don't. I'd prefer to hear your true rationale, not make accusations.

Yours,
Wince

Wince and Nod | Email | Homepage | 01.12.05 - 9:17 pm | #

Now I am confused. Was Jefferson's Bill for Establishing Religious Freedom the over-the-top proposal that even he knew never had a hope in hell of becoming reality? Because this is how it is described at www.religioustolerance.org:

"Thomas Jefferson and James Madison promoted the bill for years before it was finally passed by the Virginia legislature. At the time, the Anglican Church was officially recognized as the state religion. The law disestablished that denomination. An alternate proposal that many other denominations be recognized was rejected.

"This bill is often called 'the precursor to the Religion Clauses of the First Amendment' of the U.S. Constitution. It is this Amendment that guarantees religious freedom for the individual, while erecting a wall of separation between church and government."

Or was it the proposal for religious instruction at UVA? Because according to Leonard Levy, that was actually a concession by Jefferson to the sentiments of his contemporaries:

"Jefferson explained that in order to silence the calumny that the university was atheistic, 'In our annual report to the legislature, after stating the constitutional reasons against a public establishment of any religious instruction, we suggest the expediency of encouraging the different religious sects to establish, each for itself, a professorship of their own tenets, on the confines of the University.' In 1824, shortly before the first classes, Jefferson and the Board of Visitors adopted formal regulations which provided that the 'religious sects of this State' might 'establish within, or adjacent to, the precincts of the University, schools for instruction in the religion of their own sect.' Students of the university were 'free, and expected to attend religious worship' at the 'establishment' of their choice on condition that they did so in the mornings before classes, which began at 7:30 A.M. The same regulations also provided for the use of one of the university's rooms for worship as well as for other purposes, although the students were enjoined by the regulation of the previous paragraph to attend services in the theological seminaries surrounding the university."

It seems that while the latter proposal might not have had a hope in hell of becoming reality, it did have such hope in the Commonwealth of Virginia.

I once joked that one might just as well tell a liberal that the Earth is flat as that he is in the wrong. I'm afraid Mark is living up (or is it down?) to that stereotype. Too bad.

Karl Spence | Email | Homepage | 01.12.05 - 10:09 pm | #

Alright, finally we get to it, the Commerce Clause.

I can't argue with you on this one.

I agree.

The Court and Congress have conspired on this to usurp State perogatives.

Sorry to disappoint.

Don't tell anyone. I'll deny it and claim this entry was forged by a desparate blogger wincing from the sticks poked in his belly.

Unless of course you consider the inherent danger of clouds of lethal methane filled flatulance crossing state lines from that farm, then by George you need some federal regs. . .

Hey, now we gotta case, the sentencing guidlines case was just ruled on, and no surprise the court, ver jealous of its perogatives, ruled that the guidelines were not mandatory but more like, um . . . guidelines.

I haven't read the story yet, let alone the actual opinions, which we all should before ripping it, but this has to be a 21st century example of a case where we can debate this judicial tyranny thing without the hot-button issues coming into play.

Of course, the court's argument will be that it was the legislature trying to interfere with the judiciary.

I've never seen a case where a judge opined that the Congress must pass thus and such law (although they surly have given the lawmakers hints on what would be acceptable and what will not be) so it's only fair that the judges say thanks for the guidelines, we'll take them under consideration, but don't tie our hands.

Oy, this case is a mess, talk about your compromises and strange bedfellows:

"Stevens, J., delivered the opinion of the Court in part, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., delivered the opinion of the Court in part, in which Rehnquist, C. J., and O'Connor, Kennedy, and Ginsburg, JJ., joined. Stevens, J., filed an opinion dissenting in part, in which Souter, J., joined, and in which Scalia, J., joined except for Part III and footnote 17. Scalia, J., and Thomas, J., filed opinions dissenting in part. Breyer, J., filed an opinion dissenting in part, in which Rehnquist, C. J., and O'Connor and Kennedy, JJ., joined."

Oh, sorry, here's the link.

Mark Adams | Email | Homepage | 01.13.05 - 9:54 am | #

Mark, why debate "this judicial tyranny thing" without "hot-button issues" coming into play?

Suppose we instead consider your use of the term "hot-button issues." By "hot-button issues," I take you mean: "issues people care deeply about and would like to regain some control over, but which I think the courts are handling nicely, thank you, so the people should just shut up and forget about it."

"Hot button," it seems to me, is again a way of denigrating those with whom you disagree. It implies that their concerns are unimportant and that they themselves are irrational things, mere machines with buttons to press or dogs that thump their legs when you rub their bellies.

You've been given enough information to know now that your claim to be honoring the founders' views on constitutionality is bogus. But rather than admit any inconsistency or flaws in your position, you walk away from that, suggesting that our paying so much attention to the 18th century makes us resemble "Islamic fundamentalists." (Is there a Godwin's Law for Osama analogies?)

Very well. So much for honoring the founders. Forget 'em. You ask for something more recent, but not too "hot." Is Miranda v. Arizona too hot for you?

It was confirmed in 2000 (OK, that's still not the 21st century, but it's close) in Dickerson v. United States, the opinion of the court being written by Chief Justice Rehnquist, no less. Scalia was joined in his dissent by Clarence Thomas.

The Clinton administration had refused to defend the 1968 federal law that was being challenged under Miranda, leaving the case for the law to be argued in an amicus brief by University of Utah law professor Paul Cassell.

When the decision to uphold Miranda was announced, Cassell commented: “I think it’s a sad day for victims of crime and law-abiding Americans.” The liberal viewpoint was supplied, naturally, by the AP reporter himself, who wrote in his lead paragraph that the court’s ruling “gave new constitutional luster to its landmark Miranda decision of 1966.”

Mark, let's talk about Miranda.

Karl Spence | Email | Homepage | 01.13.05 - 12:24 pm | #

Well, I do remember Dickerson when it came out. From the headlines, not the actual opinion which I haven't read. It seemed to me a recognition of something that had become so ingrained in our culture that whether or not the original 1968 case would have been decided the same way today, now that every American who watches Law and Order or NYPD Blue, from the days of Hawaii 5-0 to the present knew the Miranda warnings by heart.

Since hearing those magic words, "you have the right to remain . . .," signifies to an arrestee that things have crossed a line, they have become a clear debarkation in police interrogation procedures well recognized by the members of our society that it is only just that they be recognized for what they are. That's how the Common Law works, that's how the English Constitution has developed over the last 950 years or so.

If you think that a three page document suffices to give us all the law we need you are being naive. We would need no law schools or courts for that matter, just the Constitution.. It's like saying that all you need are the 10 commandments and one or two Gospels along with Revelations. and the rest of the Bible is superfluous. And just forget about the Encyclicals, Canons or Bulls -- they and the entire development of Christianity mean nothing, nor do the various translations which differ with King James. Clean, simple, memorizable. That's all you need to know to lead a moral life and gain the keys to the Kingdom.

It would be nice if it were simple, but if it were simple I'd need to find another profession. My kind are a necessary evil. (____ insert lawyer joke here.)

Mark Adams | Email | Homepage | 01.13.05 - 9:49 pm | #

Kevin,

Fixed your tag.

Mark,

You mean that lawyers are a positive good, right? They are certainly better than those useless playwrights and comedians.

Yours,
Wince

Wince and Nod | Email | Homepage | 01.13.05 - 10:44 pm | #

Well, I've read through the whole exchange, but I still haven't seen where Mark Adams addresses the problem inherent in a system where "The law is what any given judge and jury say it is on any given day." That's the "Living Document" philosophy, in a nutshell.

Randy Barnett makes a compelling argument that if the written Constitution can be ignored, then what good does that "three page document" do us? As I've said before, it's the FOUNDATION upon which the other laws necessary for governance are constructed, but when we abandon that framework, we start constructing on shifting sands.

Ninth Circuit Court Justice Alex Kozinski said once:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or...the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths.... When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
And we, the people, are pretty astute at recognizing when 'constitutionalizing personal preference' occurs.

The result of this is a loss of confidence in the system - something that you, Mr. Adams, seem to simply brush off. It can lead, eventually, to a complete distrust in the lawmaking and law-enforcing system, and what is government if not that?

There is a NEED to take SOME corrective measures, yet stare decisis apparently inhibits this. You don't want to discuss Miller? Why not? Is it not the poster child for bad Supreme Court and subsequent lower court decisions?

Kevin Baker | Email | Homepage | 01.14.05 - 11:33 am | #

Mark, I don't deny that there is value in the work of lawyers, justices and law professors. I wouldn't trouble myself reading John Marshall if I did. But such work can be done well or poorly. For every Marshall, there is a Blackmun, just as for every John Ford there is an Ed Wood, and for every Duke Ellington a 2 Live Crew.

Mark, I haven't time at the moment to give Miranda the detailed drubbing it deserves, but let me say that the years have borne out the dissent of Justice Byron White, who wrote:

"The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is 'to respect the inviolability of the human personality.' ... More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. ... In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will be not a gain, but a loss of human dignity."

The main impact of Miranda was not in the reversal of criminal convictions conducted under pre-Miranda rules, although those were numerous enough. Miranda permanently altered police procedures in a way that impedes the detection of crime.

The Miranda majority’s liberal supporters dismissed such concerns with the airy observation that unpunished and unprevented crime is “the price we pay for living in a free society.” But we lived in a free society before Miranda was imposed on us, and we’ll still be free if and when Miranda is overturned.

The right to remain silent doesn’t mean the right not to be questioned, and it doesn’t mean the right to receive helpful legal advice from detectives whose true job is to solve crimes. Miranda introduced those requirements. It is optional, a frill. Its endurance in American law is a concession to the vanity of liberals who can’t imagine that anything they do could possibly be harmful or mistaken.

Not even the fact that 10 years after the Miranda decision was handed down, Ernesto Miranda was himself murdered, in a crime that remains unpunished in part because of that decision, was enough to shake the liberals' certitude in their own wisdom and benevolence. And that example can be multiplied many, many times. The 1999 bloodbath at two day-trading offices in Atlanta, for example, was perpetrated by a man who most likely would have been nailed for killing his first wife and mother-in-law, if not for Miranda's constraints.

The price we pay for the judicial activists' vainglory has been high.

Kevin, thanks for wading through all this stuff. I hope you keep working on the problem.

Tell me, do you have some suggestions for how my amendment, or some other amendment, might be tweaked to make it more workable? It seems to me that some kind of intervention from the people themselves is required if things are ever to be set right.

Today, for example, friends of what Volokh was calling "the Constitution in exile" put great hope in the changes that may come to the court through President Bush’s promised appointment of “strict constructionist” justices. But it’s unclear that such justices will be found; or if found, nominated; or if nominated, confirmed; or if confirmed, able to resist the temptation to “grow” into the progressive establishment’s good graces and become like Harry Blackmun or David Souter. And even if all those things did come true, our government would still be one not of laws but of men. The meaning of the Constitution would still depend on the composition of the court.

What can we do about it?

Karl Spence | Email | Homepage | 01.14.05 - 12:01 pm | #

Karl,

"who most likely would have been nailed for killing his first wife and mother-in-law, if not for Miranda's constraints" - gotta link handy?

Yours,
Wince

Wince and Nod | Email | Homepage | 01.14.05 - 12:35 pm | #

Wince, I'll e-mail the lowdown on the late Mark Orrin Barton to you (and to anyone else who requests it). An earlier version of the chapter I've written on Barton should turn up on Nexis if you search for "Chattanooga" and "Miranda vs. Atlanta" and "Last Month's Massacre."

Karl Spence | Email | Homepage | 01.14.05 - 1:04 pm | #

Karl:

I don't have an answer for you. Our system of government was set up not as a Democracy, but as a meritocracy. We're all created equal, but what we become and what we accomplish is supposed to be dependent upon our individual characters. The people who would be elected to office and the people who would be appointed to office were supposed to be the cream-of-the-crop rather than mediocre, run-of-the-mill, or even the dregs of the earth.

The ideal was that those in high office were supposed to have the personal honor necessary to respect the intent and meaning of the Constitution they swore to uphold and defend, regardless of how it conflicted with their personal biases or affected them financially. Problem is, people are people, and personal ideologies and personal profit and all the other ills flesh is heir to cause us to drift from the ideal. I don't see another amendment being a mechanism of change for this. I don't see a mechanism of change for this.

What we end up with is legislators who pass laws that 'comport well with their notions of good social policy' and judges who 'constitutionalize their personal preferences' rather than faithfully applying the Constitution when the Constitution leads to a conclusion they find as annoying as senile relatives. What they refuse to recognize is that by doing that, what they are throwing away like a crumpled gum wrapper is the Constitution they swore to uphold.

Another amendment won't change human nature.

Kevin Baker | Email | Homepage | 01.15.05 - 11:32 am | #

Kevin,

I think an amendment can do two useful things:

1. It mandates a particular theory of interpretation. This makes it harder for interpretation to drift away from the Constitution. I've generally found that churches which claim the Bible should be taken literally do take the Bible literally much more often, even when it is very inconvienient, whereas those churches who don't have a strong theory of interpretation drift very far away indeed.

If you point out that a clever lawyer can still achieve, through argument, a result which differs from the original meaning you will, of course, be right, but it will be harder.

2. An amendment overcomes stare decisis.

Yours,
Wince

Wince and Nod | Email | Homepage | 01.15.05 - 1:36 pm |

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