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March 01, 2005

originalism in constitutional law: two

Don Herzog: March 1, 2005

Crucial Warning:  if you read this post without reading part one, your hard drive will melt.

Consider the eighth amendment:

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

Now put on your originalist hat and ask:  does the amendment ban use of the pillory?  You've probably seen engravings of people locked in the pillory for punishment.  You may not have known that it was routine for members of the community to show up and hurl things at them, as this engraving shows.  The real punishment was exposure to public humiliation, not having to maintain an awkward posture while locked into the device.  When some gay men in Britain were put in the pillory in 1812,

their features were almost instantly rendered indistinguishable by the peltings in mud, blood, addled eggs, guts, garbage, dead dogs and cats, and every species of filth, while the air was filled with hootings and execrations.

The pillory was frequently used in the colonies.  The standard story is that the pillory, stocks, and whipping were rapidly replaced by prisons in the late 1700s, especially in urban communities where the victims were exposed to the uncaring glances of anonymous passersby instead of the hearty condemnation of real neighbors.  "Could your Honours but be spectators of the ease, the negligence, and unconcernedness, with which these people are led to the whipping post," one concerned citizen advised the Massachusetts legislature in 1784, "your blood would chill in your veins, at the depravity of human nature."  The pillory, stocks, and whipping lingered on the law books through the 1800s:  Delaware got around to repealing use of the pillory for women in 1889, and Delaware courts were still inflicting public whippings in the 1960s; the state legislature finally repealed the relevant measures in 1974 (Del. Code. Ann., tit. 11, § 4205).  But again historians tend to think actual use of the pillory, stocks, and whipping dwindled rapidly in the late 1700s.

The language of the eighth amendment is a deliberate echo of the English Bill of Rights of 1689, which provided in part

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In 1689, the pillory was thriving in England and America.  When the American constitution echoes the 1689 language in a social setting a full century later where use of the pillory is dwindling, does it reaffirm the presumptive 1689 understanding that the pillory was acceptable?  If we want to be originalist about the eighth amendment and turn to the framers' or ratifiers' understandings, are they being originalist about their own language and turning to the 1689 English understanding?

An originalist might want to say that the eighth amendment certifies a contemporary sense that the pillory was unacceptable.  But maybe contemporaries abandoned it only because it had become impotent, not cruel and unusual.  And there is a noteworthy exception to the historical narrative of late 1700s decay and extinction.  A congressional act of 4/10/1790 (1 Stat. at Large 116, § 18) dictated that perjurers should be sentenced to "imprisonment not exceeding three years, and a fine not exceeding eight hundred dollars; and shall stand in the pillory for one hour, and be thereafter rendered incapable of giving testimony in any of the courts of the United States until such time as the judgment so given against the said offender shall be reversed."  Congress banned use of the pillory in 1839 (5 Stat. at Large 322, § 5).

Other legal actors give us suggestive (or elusive?) evidence, too.  in 1801 three circuit court judges appealed to the president to lighten the sentence of two soldiers who had stolen a hog.   They fretted that the sentence that the law required them to impose five stripes and fifteen minutes in the pillory was "of an infamous nature."  By "infamous," did they mean "cruel and unusual"?  The president relieved that part of the sentence, but not their duty to make restitution to the owner for the value of the hog.  Does the pardon reveal something about the original understanding of the amendment?  Is 1801 close enough to 1789 to count?  In 1801, could or did people complain about activist judges, "no, no, not our understanding, theirs from a dozen years ago"?  (Pillory aside, I can't help reporting that in a 1776 letter, the ever erratic Jefferson tersely recommended, "Rape, buggery &c. punish by castration."  He promptly added, "Laws thus proportionate and mild should never be dispensed with.  Let mercy be the character of the law-giver...."  What should an originalist make of this?  I found this dubious gem in The Founders' Constitution, a treasure trove of primary source snippets surrounding every clause of the Constitution that the University of Chicago Press, bless their boots and buttons, has posted online.  Those curious can find more snippets in The Complete Bill of Rights, ed. Neil H. Cogan.  Sorry, Oxford University Press doesn't put that online.) 

Congress voted to pass the Bill of Rights onto the states on 9/25/1789, just over half a year before dictating use of the pillory for perjury.  If you're the kind of originalist who's especially interested in Congress's views about legal meaning, does it follow that use of the pillory is not prohibited by the eighth amendment?  Not quite yet.  It is a conceit of courts that the other branches of government dutifully respect their constitutional obligations, but that's a fiction.  In the summer of 1798, Congress passed the Alien and Sedition Acts over intense protest.  The Sedition Act clearly violated the first amendment.  When Jefferson took office in 1800, he pardoned everyone convicted under the Act — and Congress paid restitution.  That aside, Congress could have adopted a principle about cruel and unusual punishment and not realized that their principle, on their own understanding of "cruel and unusual," prohibited a familiar punishment they took for granted.  Compare:  you vow to stop eating fatty food but keep eating scones, because you don't realize how fatty they are.  Or compare:  your boss is genuinely committed to an egalitarian workplace but never notices that he treats the secretaries in demeaning ways.

How does this smattering of historical evidence, mostly fruits of a desultory search through scattered old notes of mine, connect up with the actual text of the amendment, anyway?  "Cruel and unusual":  two independent conditions?  Suppose Congress regularly tortures people for double-parking.  Imagine denying that that's unconstitutional on the grounds that while cruel, it isn't unusual.  Does the pillory become unconstitutionally cruel as it becomes unusual?  Did contemporaries have any understanding of the legal force of the and joining cruel and unusual?

"Original understanding" sounds as if it names something crisp, clear, straightforward.  If you flinch at the gyrations of the Supreme Court, you might imagine that if only they recurred to the original understanding of constitutional language, they'd stop running off the rails.  I want my smattering of evidence to suggest that that impression is illusory.  The minute you begin to assemble even a sample of relevant historical evidence, you realize that you're looking at further endless interpretive dilemmas, not clear answers.  One last way to underwrite the point:  originalism summons up a fall from constitutional grace.  They knew what they were saying, but we don't.  But deep disagreement about the meaning of constitutional language is endemic from the beginning.  Recall for instance heated disputes about whether the Bank of the United States was constitutional.  So originalism isn't a recipe for replacing our disagreements with their consensus.  At best it's a recipe for replacing our disagreements with their disagreements.

You might think that further research into the pillory and the founding would bring things into sharp focus, that (almost) all the sources would pile up behind one reading.  It's possible, but I see no reason to believe it.  That makes me think research into original meaning is just what the old lawyer's joke claims research into legislative history is:  going into a crowded room and looking for your friends.  And that makes me think that on the ground, no matter how well intentioned its practitioners, originalism is a recipe for untrammelled judicial discretion.

I haven't yet reached my central objection to originalism.  Stay tuned.

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Comments

Posted by: Bernard

My hard drive didn't melt! This is just another example of alarmist lefty propoganda.

Unfortunately I didn't understand any of the rest of the post. I should probably read the first part first.

Posted by: Bernard | Mar 1, 2005 7:00:24 AM


Posted by: Shag from Brookline

Advocates of the various forms of originalism should perhaps be placed in stocks and made to listen to counter views. Now, would that be cruel and unusual?

Consider that the Second Amendment proscribes Congress from infringing on the right (whether individual or collective) to bear arms. This proscription is not limited to guns and rifles, but to arms. Back when the Bill of Rights was ratified, there was no inkling of the types of guns and rifles that exist today; nor was there any awareness of a suitcase dirty bomb that can bring about massive destruction. Some originalists claim that the Second Amendment provides an absolute right to bear arms. (The NRA may agree with them.) Other originalists claim that there may be a reasonable right to regulate arms that can be borne. Until the Fourteenth Amendment came along, presumably the states were not similarly proscribed by the Second Amendment. Some originalists claim that the Fourteenth did not incorporate the Second. So where does originalism take us with the Second Amendment and its relationship, if any, to the Fourteenth? Why, there are many, many weapons of mass destruction in the hands of so many individuals.

With these originalists in stocks (and perhaps bonds), let us take up verbal arms aimed at them. Now surely that would not be cruel and unusual.

Posted by: Shag from Brookline | Mar 1, 2005 8:19:30 AM


Posted by: oliver

To what extent did the framers see themselves as articulating rules and recipes that monkey's or robots could follow, and to what extent did they mean their prescriptions to be advice for one or two or one hundred reasonable men to consider and apply as they see fit in the particular context that presents itself to them? Just by making a text one pillar of your government you're assigning an ongoing task of interpretation to the other pillars. Maybe we want to distinguish "duh!" interpretations from more challenging ones, but Professor H seems to be saying that we can't.

Posted by: oliver | Mar 1, 2005 9:17:55 AM


Posted by: john t

Whether as to Supreme court Decisions,amendments,elemets of the constitution,or Jefferson's "wall of separation"liberals always find crystal clear meaning where they seek it. It's all so obvious. But it seems all turns to an indecipherable and unnavigable thicket on interpretations or laws they find disagreable. Maybe that's why we need original intent. Shag from Brookline The second amend remains virtually untouched by the 14th,I don't begin to follow your comment on WMD's or at least I'm reluctant to suspect you're making a connection to the 2nd. As to taking up verbal arms,you haven't noticed?

Posted by: john t | Mar 1, 2005 9:49:05 AM


Posted by: Don Herzog

Here we go yet again. john t, who exactly are these liberals who find crystal clear meaning where they want it, and indecipherable thickets where they dislike the law? Name names, give examples. I don't believe it.

Posted by: Don Herzog | Mar 1, 2005 10:06:09 AM


Posted by: No Labels Please

All true as far as it goes. That's what the Supreme Court is supposed to be doing, re-interpreting the constitution **as necessary** as time goes on. Otherwise, if any short text like the Constitution would suffice, we wouldn't need a Supreme Court. Trying **as far as possible** to understand what the original intention behind a certain law or passage in the Constitution is, of course, important. The fact that it may be difficult in certain cases doesn't diminish it's general importance - that's an obviously fallacious argument. However, it's also clear that laws become obselete, assumptions behind legislation becomes invalid or it's impossible to determine how a given law or passage applies to current society.

In these cases tension arises when the Supreme Court, or some other court, is perceived to subvert the natural function of the legislature in terms of law creation vs interpretation. This is actually a useful signal to the legislature that it's time to make some new law. It's a balancing act, and the system we have is unsurpassed in it's ability to keep all the involved parties unhappy with each other's influence.

Posted by: No Labels Please | Mar 1, 2005 10:23:55 AM


Posted by: john t

Don H Are you saying that no liberal ever approaches constitutional questions with certainty? Now it's my turn to say I don't believe it. I have a better idea,which given your post should be easy,name a sample of liberals who deal with the constitution always approach it with uncertainy,who never know what it says or how to interpret it. You see I have a problem with your post. Whatever I cite will be dismissed as anecdotal and I have neither the resources,time,or money to do a poll,which in any case would be ignored as having asked loaded questions. Rummage thru your mind,you may discover a few opinions which were written with an air of authority,and if authority then certainty. For sure the results were certain.

Posted by: john t | Mar 1, 2005 11:14:45 AM


Posted by: Don Herzog

No, I'm not saying that no liberal ever approaches constitutional questions with certainty. There are easy cases, even in constitutional law. What I am denying is that liberals as a general matter pretend that cases are easy where they want to defend the outcome, and generate fake difficulties when they want to deny what the law is.

Posted by: Don Herzog | Mar 1, 2005 11:35:27 AM


Posted by: No Labels Please

By the way, today's Supreme Court decision disallowing execution of minors provides an excellent case study for the implications of the activism/orignalism debate...at least after Mr Herzog finishes making his case.

There is absolutely nothing explicit in the Constitution about the execution of minors - however a majority of the Court found the practice "cruel". Opposing this, 19 states have explicit laws on the books permitting execution of those under 18.

I would argue that this is a clear example of the problem with straying **too far** from some type of originalism or strict constructionism - the Supreme Court is clearly acting politically here and writing legislation.

[By the way, I agree with the position of the Court on this issue, however I don't think it is/ should be within the scope of their power to decide it - see Scalia's dissent]

Posted by: No Labels Please | Mar 1, 2005 11:44:15 AM


Posted by: Robert Schwartz

Boy, you are so clever! I used to think that a just understanding of the historical context of the drafting and implementation of the Constitution (or any other legal instrument) was a key to understanding it and its meaning. I don't know why I held such a benighted view for such a long time. Clearly, your antinomies have proved the error of my ways with mathematical precision.

Say man, don't bogart that joint, pass it around, I need another hit.

Posted by: Robert Schwartz | Mar 1, 2005 12:08:06 PM


Posted by: S. Weasel

Yes, Scalia made the sly point that this court has ruled minors capable of making informed and independent decision whether to have an abortion, but are somehow not fully culpable for murder. Surely the ethics of aborting a fetus are more complex than murdering an adult, he says.

[I'm for both abortion and the death penalty, but I think he scored there]

Posted by: S. Weasel | Mar 1, 2005 12:12:50 PM


Posted by: frankly0

The example of the pillories once again establishes only what was presumably already known: that there are cases where the "original intent" of Constitutional goes different ways depending on how broadly one casts the set of relevant "original" parties, and on how much consensus among them is required.

But isn't this just the same slippery slope argument as before? Yes, there may be cases like pillorying which can go either way depending on the definition settled on, but are we really going to believe that there aren't cases where, on almost any definition, a given intent is present across virtually ALL relevant parties? Simply because sometimes there's an application of the terms that falls into the region of vagueness, must we believe that there aren't clear cases?

Now maybe the idea is that there are so few clear cases that "original intent" cuts no ice, but that has hardly been argued for, I think. And what's pretty obvious is that no one really expects is that "original intent" will in all cases settle issues. I don't think that any sensible person would believe that we could construct, in the cases of all Constitutional language, adequate evidence that a particular interpretation was, or was not, intended "originally", however defined. Sometimes such intentions are just going to be lost in the mysts of history, particulary when the potential interpretation addresses some relatively arcane or anachronistic point. Pretty obviously, "original intent" can only be meant as a constraint on possible correct interpretations, not as determinative in every single case.

When I started reading the post, I thought that the pillory example was going to be used as something that pretty clearly WAS, with virtual unanimity, intended to be allowed as a punishment that was NOT cruel or unusual. Looks like that wasn't true of pillorying, even at the time. But, if it were true of it, it would be a pretty good example of why we shouldn't be bound today by the intentions and sensibilities of the "original" generators/endorsers/whatevers of the language. And I've got to believe that there are many examples of this, even if pillorying is not among them.

Posted by: frankly0 | Mar 1, 2005 12:16:42 PM


Posted by: Dallas

Yep, Scalia just about says it all.

Hopefully, GWB will have a sufficient number of appointments to end the trend of the Supreme Court as a Super Legislature, immune from recall when it tramples on the principle of majority rule.

Posted by: Dallas | Mar 1, 2005 12:21:00 PM


Posted by: catfish

Two points:

Originalism and activism are not opposites. It is possible to be an activist originalist, striking down legislation left and right if it does not comport with your view of originalism. I would argue that the opposite of an activist is one who would defer to the legislature except in the most extreme of circumstances. Such a person would not have to be an originalist.

Secondly, the problem with originalism is the same as that of any constitutional interpretation doctrine. There is, at bottom, nothing solid to base it on in many cases. Courts are left with simply deferring to the legislature in difficult cases or in honoring precident. I would argue for the latter. As long as the law changes slowly and is predictable, a balance between accountable government and the rights of minorities (in the broadest sense) will be more likely to be struck.

Posted by: catfish | Mar 1, 2005 12:23:31 PM


Posted by: frankly0

"mysts of history"??

I meant "mists of history", of course.

Weird.

Posted by: frankly0 | Mar 1, 2005 12:24:24 PM


Posted by: Craig Duncan

For what it is worth:

"I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging."

Antonin Scalia, "Originalism: The Lesser Evil" in David M. Adams, *Philosophical Problems in the Law*, Third Ed. (Wadsworth 2000), p. 165.

He goes on to add: "But then I cannot imagine such a case arising either."

Posted by: Craig Duncan | Mar 1, 2005 12:26:30 PM


Posted by: Jay Cline

Don,

Great post, great logic. I was on the floor laughing my @$$ off. That only happens during moments of epiphany.

It seems the divergence of opinion here revolves around what the Constitution should be used for, a proclamation of intent, or a table mat upon which to read tea leaves and chicken entrails.

Was there Intent in the framing and ratification of the Constitution? Yes. Is it relevant? Yes.

Is it Gospel?

hmmmm.. St. Jefferson, St. Madison, St. Hamilton, St. Monroe?

The Bible has been in need of a sequel for some time.

Seriously, the comparison betwixt the Bible and the Constitution is legit. The Bible is a revealed text; the Constitution is a construed text. The Bible was given as a gift; the Constitution was hammered out in true democratic spirit.

The whole notion of originalism and strict whaddacallit is an attempt to equate the two.

Posted by: Jay Cline | Mar 1, 2005 12:34:36 PM


Posted by: Mona

I abandoned allegiance to notions of "original intent" over a decade ago, after Richard Posner persuaded me it is untenable. As he notes, in its entire history the SCOTUS has never operated as originalists like Bork proffer as the One True Way.

I think the recent ruling declaring the execution of minors as unconstitutional pursuant to the 8th Amendment is a good example of what is wrong with originalism. Scalia essentially claims, in his dissent, that executing minors cannot be cruel or unusual because 19 states permit it; such a position renders the 8th Amendment nugatory. It has no force at all if any punishment is rendered acceptable merely because it is adopted by any state(s). What role then for judicial review? If some states did want to bring back the pillory, that is all the evidence needed for its being constitutional, per Scalia. (And I am a huge Scalia fan -- his dissent in Planned Parenthood v. Casey is one of the most entertaining and biting pieces of writing one could ever have the pleasure to read.)

That can't be right.

Posted by: Mona | Mar 1, 2005 12:43:58 PM


Posted by: S. Weasel

Scalia essentially claims, in his dissent, that executing minors cannot be cruel or unusual because 19 states permit it; such a position renders the 8th Amendment nugatory. It has no force at all if any punishment is rendered acceptable merely because it is adopted by any state(s). What role then for judicial review? If some states did want to bring back the pillory, that is all the evidence needed for its being constitutional, per Scalia.

Well...yes. State law isn't a random lightning strike. For a thing to be written into law, it has to pass through many hands and, at least to some degree, be acceptable to a majority of the electorate. This surely doesn't mean that all law is good, but a thought accepted by millions can't really be described as unusual. For the pillory to reappear in any state would require some major societal change over a period of time sufficient to re-normalized what most currently regard as a bizarre and sadistic practice.

Posted by: S. Weasel | Mar 1, 2005 1:08:00 PM


Posted by: Mona

S. Weasel writes: Well...yes. State law isn't a random lightning strike. For a thing to be written into law, it has to pass through many hands and, at least to some degree, be acceptable to a majority of the electorate.

Therefore, it is impossible for any punishment adopted in this process to be violative of the 8th Amendment? As I asked before, what role then for judicial review? And why have the "cruel and unusual clause" at all -- is it mere froth having no legal susbtance?

Posted by: Mona | Mar 1, 2005 1:16:49 PM


Posted by: No Labels Please

Mona:

I agree with you that strict originalism is untenable/silly.

But:

1. "Some states" can't bring back the pillory. However, the citizens of a state could. I doubt it would happen - do you think it would happen?. The court could certainly rule it "unusual" if only one state did it. That would make sense to me. [BTW I don't think Scalia would claim that a single state adoption would negate judicial review as you claim, but I'll leave it to him to defend himself.]

2. There are many laws that are widely considered unconstitutional. If the citizens of a state passed laws that were explicity unconstitutional, the Supreme Court could overturn them. That is judicial review.

3. In the case of executions of minors, it is not certainly not expressly forbidden by the Constitution, 19 states have explicit laws which permit it, so it is not "unusual". I don't know how you argue that it's "cruel" to execute a 17 year old, but not "cruel" to execute an 18 year old. It's really a gray area "judgement call" best left to the states. I mean, should the Court get involved in setting minimum marriage age, drinking ages, driving ages, abortion consent ages, etc?

4. In general I think you can make a case that the miserable history of the application of the death penalty makes it de facto "cruel" due to mistaken executions, and therefore unconstitutional. Separate point.

Posted by: No Labels Please | Mar 1, 2005 1:17:12 PM


Posted by: Mona

No Labels Please writes: "Some states" can't bring back the pillory. However, the citizens of a state could. I doubt it would happen - do you think it would happen?. The court could certainly rule it "unusual" if only one state did it. That would make sense to me. [BTW I don't think Scalia would claim that a single state adoption would negate judicial review as you claim, but I'll leave it to him to defend himself.]

Scalia has a thing for "tradition." It is an integral part of his jurisprudence. So, given that the whipping post and the pillory were available punishments at the nation's founding, if a single state resurrected it, there is no originalist argument -- certainly not as Scalia practices originalism -- for that being violative of the 8th Amendment. (My opinion as to the likelihood of any state doing that is not relevant -- I'm in the mode of law school hypos that are useful to test the integrity of any law or legal doctrine. But in fact, I would not be surprised if a state did try to bring back flogging, and there actually are some defenders of that as a cheap alternative to prison. Do recall that most of the American public approved of that young American in Singapore having been caned for vandalism.)

If it is true -- and it seems to be -- that the Western world at large, and most states in the U.S., have been abandoning the execution of minors, what is wrong with the Supremes noticing this trend and declaring that the 19 hold-outs are in violation of contemporary standards of what constitutes "cruel and unusual punishment"?

Posted by: Mona | Mar 1, 2005 1:36:20 PM


Posted by: john t

Don H Thanks for your response,no major problems with your post and I didn't mean to imply that all liberals are beady eyed opportunists. As to fake difficulties,a person can with intenions he regards as honorable create or will difficulties with no inner desire for fakery. Other than that I'm willing to drop any repetition or return to my earlier post

Posted by: john t | Mar 1, 2005 1:49:02 PM


Posted by: S. Weasel

Therefore, it is impossible for any punishment adopted in this process to be violative of the 8th Amendment?

I can't see how any punishment can be common and unusual at once.

As I asked before, what role then for judicial review? And why have the "cruel and unusual clause" at all -- is it mere froth having no legal susbtance?

Perhaps unusual punishments or inflicted by the bench...? I don't know that, while enumerating rights, the framers were obliged to imagine the ways in which those rights might be denied, and I can't see the problem with a bit of language so easy to test that judicial review might not be required.

Posted by: S. Weasel | Mar 1, 2005 1:50:09 PM


Posted by: Dallas

If it is true -- and it seems to be -- that the Western world at large, and most states in the U.S., have been abandoning the execution of minors, what is wrong with the Supremes noticing this trend and declaring that the 19 hold-outs are in violation of contemporary standards of what constitutes "cruel and unusual punishment"?

Nothing wrong with it at all -- if you enjoy judicial tyranny. But, what goes around, comes around, and in the next cycle the Supremes may be mandating the contemporary standards of the Red States over the contemporary standards of the Blue States.

Plus, mandates from the High Bench changing our jurisprudence in radical ways tend toward social friction, as the Southpaws are learning in relation to abortion.

Posted by: Dallas | Mar 1, 2005 1:58:19 PM


Posted by: Mona

S. Weasel writes: and I can't see the problem with a bit of language so easy to test that judicial review might not be required.

No, what you argue means that judical review it could never be required, because by its terms as you are interpreting the 8th Amendment it is impossible for a state legislature to breach it. It would be as if the 1st Am were interpreted to mean that altho Congress can make no law restricting freedom of speech, by definition any law Congress passes does not impede that liberety. In other words, the framers gave us an 8th Am that actually restricts the govt not at all, because no legislature can violate it. Can that be right?

Posted by: Mona | Mar 1, 2005 2:11:35 PM


Posted by: David

S. Weasel: Don't score too many points for Scalia just yet. Just because the Court allows (through constitutional protection) minors to choose to have an abortion does not commit it to any position on the cruelty of the death penalty as applied to minors. I have not read Scalia's dissent in today’s opinion (though, I assume it resembles his dissent in Atkins v. Virginia, at least in some respects), so I don't want this to be a critique of his reasoning. But, as a general matter, the Court's constitutional protection of the privilege to obtain an early abortion is based (I’m pressed to believe) on the idea that early abortion does not present enough moral difficulty to justify absolute prohibition--from the standpoint of "public" reason, as opposed to personal reason. That is, the prohibition of killing early fetuses is not publicly justifiable (what public justification entails and why it is meaningful to distinguish it from personal justification is a enormous issue that I can’t defend here). If this is part of the justification of constitutionally protecting the privilege to obtain an abortion, then permitting minors to obtain abortions doesn't depend so much on their ability to appreciate the moral complexities involved. Because being forced to deliver a child is a significant burden/obligation, political morality requires that there be a more morally compelling argument to support state-enforced prohibition of abortion. Whether the person seeking an abortion is a minor or not does not affect this analysis too seriously (though, the age of the person may have moral relevance since abortions of early teens can be significantly dangerous; but this works the other way because we should be more reluctant to impose obligations on minors. This point is explored more next).

Punishment, on the other hand, is a practice through which we strip criminals of rights they otherwise would have enjoyed. We justify this practice (on my view) by appealing to the agent's knowing and voluntary acceptance of a *normative consequence*. Punishment should not be something that befalls the ‘victim’ through fortuitous circumstances or the actions of third parties without the possibility of control on his part. Rather, punishment is permitted because when he committed the crime, the criminal acted with the awareness that there were normative (as opposed to factual) consequences of his action. By committing the crime, he voluntarily assumes a liability to suffer punishment. The justification is much like that encountered in contract and tort law. A person entering a contract assumes liability (via consent) to perform contractual obligations or pay damages proximately caused by breach; and in tort law, the doctrine of volenti non fit injuria (“to one who is willing, no wrong is done”) deems consent a defense to intentional torts. Because, then, a kind of consent is crucial to our justification of punishment, certain requirements related to the agent’s state of mind must be met. We hold contracts entered by minors voidable, and the consent defense in tort does not apply to minors, mental defectives, and intoxicated persons. The law (and morality more generally) recognizes that when someone assumes an obligation to be demanded in the future, he affects not only his immediate interests but also his future interests. By placing limits on the harmful obligations an offender may assume, morality refuses to regard him at the time of his offense as a wholly rational disposer of his entire life. (See Warren Quinn, The Right to Threaten, The Right to Punish for more). Paternalism of this sort is especially understandable for minors, given their psychological immaturity and diluted sense of identity over time.

So, the limitation of permissible punishment in relation to minors reflects (again, on my view) a reluctance to permit minors to assume obligations that affect substantial long-term interests. Whereas, the permission to have an abortion reflects the position that it is wrong to impose the burdens/responsibilities of parenthood on someone unless there is a substantial moral interest to be protected by doing so. I think the Court has decided that the protection of potential human life is an insufficient moral reason to justify imposition of the burden; and this is true for minors as well as adults (maybe moreso for minors, for reasons similar to those limiting permissible punishment for minors).

Anyway, sorry to post on some so tangential to the topic of this post, but I couldn't resist. I have many thoughts on constitutional theory, but those will have to wait. Too much work to do.

Posted by: David | Mar 1, 2005 2:13:34 PM


Posted by: mikec

Hmmm. You seem to have piled up some pretty good evidence that there was no intention that the 8th amendment outlaw use of the pillary, and basically no evidence that there was such an intention. You've also pointed out that shortly after the 8th amendment was passed, use of the pillary passed out of fashion.

Now, one way to deal with this is to let the Supreme Court invent a law against the use of the pillary. That has the unfortunate side effect of making the constitutional amendment process completely pointless. After all, what's the point of going to the trouble of passing an amendment if the court can just ignore it a few years later? Another way to deal with it is to pass a federal or state law outlawing the pillary. Another is to amend the constitution to outlaw the pillary. Both of those strategies seem to accomplish the desired end in a much less problematic fashion.

Posted by: mikec | Mar 1, 2005 2:21:04 PM


Posted by: Mona

Dallas writes: Nothing wrong with it at all -- if you enjoy judicial tyranny.

So, if the Supremes strike a law, say, prohibiting the use of public space for the purpose of religious proselytizing as unconstitutional pursuant to the free speech and religion clauses of the First Amendment, we are living under judicial tyranny? The First Amendment is meant to constrain the govt. So is the 8th.

We are not discussing a Roe v. Wade situation -- the 8th Amendment, as the First, is in the Constitution and the courts are charged with upholding it. No penumbras -- concrete language.

Posted by: Mona | Mar 1, 2005 2:22:23 PM


Posted by: Dallas

I didn't expect that you would 'fess up to it, Don, but the majority opinion, issued today, clearly exemplifies an "anything goes" approach.

Sure, they offer a rationale ("evolving standards of decency"), but, as Scalia notes, the majority has set itself up as the "sole arbiter of our Nation's moral standards." So, what we end up with is binding law made according to the "subjective views of five Members of the Court."

I really don't understand how one is able to call one's self a "liberal" and at the same time approve such authoritarianism.

Posted by: Dallas | Mar 1, 2005 2:24:39 PM


Posted by: Don Herzog

Dallas, could you please stop attributing things to me I haven't said? I haven't read today's opinion. So I haven't got a view on it. To remind you of the obvious, I wrote and posted this post before the Court handed down today's opinion.

That aside, I don't believe that our choices are originalism or "anything goes." But I'd like to see a response to my post on the merits, not just a bugbear about the scary alternative that awaits us if we agree. Or do you really mean that yup, originalism is a mess, but we have to desperately pretend it's right anyway?

Posted by: Don Herzog | Mar 1, 2005 2:28:27 PM


Posted by: Mona

Dallas writes: Sure, they offer a rationale ("evolving standards of decency"), but, as Scalia notes, the majority has set itself up as the "sole arbiter of our Nation's moral standards." So, what we end up with is binding law made according to the "subjective views of five Members of the Court."

In this instance Scalia's rhetoric is inaccurate. For one thing, the language of the 8th Amendment invites the Court to be a moral arbiter, since it is charged with reviewing punishment for being "cruel and unusual." If the legislature is to have the last word on what constitutes cruel and unusual punishment, then the cruel and unusual clause is meaningless; an inkblot.

Much that judges decide is subjective. They are not robots. Every time the Supremes issue a decision we are bound by the views of a plurality or majority of 9 lawyers. That is what results from the doctrine of judicial review.

Posted by: Mona | Mar 1, 2005 2:37:01 PM


Posted by: Dallas

[T]he 8th Amendment, as the First, is in the Constitution and the courts are charged with upholding it.

Of course, it is. We all know that.

The issue is how the judiciary should go about discharging its responsibility. In the opinion released today, the Court relies upon its sense of "evolving standards of decency." Would you leap up and down with joy if Pat Robertson's standards of decency were imposed on you by fiat? If not, then perhaps you might want to consider the ultimate consequences of putting your stamp of approval on the authoritarian approach.

How law is made may be more important than the substance of the law, itself.

Posted by: Dallas | Mar 1, 2005 2:38:14 PM


Posted by: Mona

Dallas writes: In the opinion released today, the Court relies upon its sense of "evolving standards of decency." Would you leap up and down with joy if Pat Robertson's standards of decency were imposed on you by fiat? If not, then perhaps you might want to consider the ultimate consequences of putting your stamp of approval on the authoritarian approach.

You persist in making recourse to facile criticism against those who disagree with your rather uninformed understanding of what it is that courts actually do. When dealing with a statute or constitutional provision, they must interpret and apply it. Pat Robertson is not charged with that job, but courts are.

So, when applying morality-laden language like "cruel and unusual," the courts must decide which standard of morality to apply. It does not seem unreasonable to me for them to look to the Western world that shares our legal heritage, and to the majority of states, to determine the proper standard for assessing the meaning of language they are mandated to uphold.

Posted by: Mona | Mar 1, 2005 2:47:44 PM


Posted by: catfish

I'm not sure how this particular decision is authoritarian, at least, any more so than judicial review is in general. It is, after all, restraining the government. No one's rights are being threatened. Presumably, people could pass a constitutional amendment making it OK to execute minors as young as 12 if enough people agree. Again, not authoritarian in the usual sense of the term. In fact, it does not force anyone to do anything, except refrain from executing young people.

That said, I have no opinion on the correctness of this particular decision. I have not read the opinion. Still, I think that "authoritarian" is way off base.

Posted by: catfish | Mar 1, 2005 2:48:28 PM


Posted by: Dallas

Every time the Supremes issue a decision we are bound by the views of a plurality or majority of 9 lawyers. That is what results from the doctrine of judicial review.

This is the precise reason for my concern. Should so much power be held by officials appointed for life? Should they ASSUME (which is what they have done) the power to decide cases on such a flimsy basis as "evolving standards of decency" as determined by them.

Posted by: Dallas | Mar 1, 2005 2:51:54 PM


Posted by: catfish

Dallas,

How else would minority rights be protected, if not by judicial review?

Posted by: catfish | Mar 1, 2005 3:04:53 PM


Posted by: Chris

Today's opinions in Roper remind me that we need to distinguish the sense of constitutional language from its reference--or equivalently for these purposes, intension from extension, connotation from denotation, or meaning from application.

Justice Scalia denies that the Constitution can change at all, and he seems to mean, even a change in the reference of constitutional language. See slip op. at 1 ("What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of the Constitution has changed over the past 15 years--not, mind you, that the Court's decision 15 years ago was wrong, but that the Constitution has changed"), slip op. at 23 ("In a system based upon constitutional and statutory text democratically adopted, the concept of 'law' ordinarily signifies that particular words have a fixed meaning. Such law does not change ...").

Justice Stevens says that even the meaning can change, suggesting that he is not even tied to the original sense of constitutional language: see slip op. at 1 (denying that "the meaning of that Amendment had been frozen when it was originally drafted"); id. ("that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text.").

Both Scalia and Stevens should go back to what Justice Sutherland said for the Court in Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

When we go to the framers, we need to find out what sense they attached to their constitutional language, not just what particular things they think fell under it. We need to find out what textual reasoning they used to explain why the pillory was or wasn't unconstitutional, so that we can tell whether that reasoning depends on reference-yielding facts that have changed even as the sense of the constitutional language has stayed the same.

Even if we are bound by the original sense, courts will have a degree of discretion in finding the reference-yielding facts. But that discretion is not "untrammelled"--it is bound by the original sense and by the actual facts about the world.

Posted by: Chris | Mar 1, 2005 3:10:35 PM


Posted by: Don Herzog

Chris, that assumes that we can first get our hands on "the" original meaning, and that's what this post is skeptical of. I'll say more about the sense/reference picture, which is indeed helpful, soon.

Posted by: Don Herzog | Mar 1, 2005 3:13:35 PM


Posted by: Dallas

Mona,

Begging your pardon in advance and presuming it will not offend you, kind Madam, I will try once more, in my facile and uninformed manner, to suggest what I, your humble servant, believe to be at stake here.

Yes! Yes! Let it be proclaimed from every mountain top, the Supreme Court of the United States must decide issues of tremendous importance.

And, as strange as it may seem to you, even one so ill informed as I knows that Pat Robertson is not a justice of the Supreme Court.

The question is: Are you prepared to accept the mandates of the Supreme Court if they flow from a majority that thinks like Pat Robertson thinks and applies the same sort of authoritarian approach? Or, to put it in more concrete terms: What would you say if the Supreme Court held, thirty years from now, that "evolving standards of decency" did not prohibit a school board from mandating one hour of Bible study each day for all public school students? Or, if the Court held that "evolving standards of decency" entitled school boards to prohibit the teaching of evolution?

Posted by: Dallas | Mar 1, 2005 3:21:10 PM


Posted by: Jay Cline

Some random and personal thoughts on some of what has been said in the past few hours:

After all, what's the point of going to the trouble of passing an amendment if the court can just ignore it a few years later?

That assumes we grant a priori all legislative action as proper and correct and not needing judicial review...

The issue is how the judiciary should go about discharging its responsibility.

According to Article III, which gives the Supreme Court Judicial authority and the right to establish superior and lesser courts, and notwithstanding any contrary language, the judiciary can go about its business reviewing cases any way it pleases.

Should so much power be held by officials appointed for life?

After 200 years, it seems to be working reasonably well. We haven't had a constitutional crisis or civil war in over one hundred years.

Posted by: Jay Cline | Mar 1, 2005 3:24:16 PM


Posted by: Jay Cline

Or what if the Supreme Court decreed that we are not alone in the universe? or that only 100 angels may dance on the head of a pin?

Sorry for the sarcasm. It gets the best of me sometimes.

Posted by: Jay Cline | Mar 1, 2005 3:26:10 PM


Posted by: Dallas

We haven't had a constitutional crisis or civil war in over one hundred years.

And, prior to 9/11/01, the continental US hadn't been attacked since 1812.

Posted by: Dallas | Mar 1, 2005 3:29:28 PM


Posted by: Chris

Don,
You may be right about my assumption that a single original sense exists, and much more would need to be said to defend it, but I'm just saying that a consensus on the sense of language can exist even where there is disagreement over the reference of it. The historical disagreements you cite pertain to diagreements about what tangible consequences flow from the constitutional language. That may result from disagreement over the reference-yielding facts, not disagreement over the sense.

Posted by: Chris | Mar 1, 2005 3:32:09 PM


Posted by: noahpraetorius@hotmail.com

In my opinion, "cruel and unusual punishments" are those that elicit in me a sense of revulsion and/or disproportion. It has nothing at all to do with contract law, frequency of use, or the age of the defendant. I am willing to let the jury sort out those issues because they are human beings with finely developed moral sentiments. If it is allowed by law and decreed by the jury or judge then by all means proceed. And I would extend that opinion to flogging and pillory. (I wonder if fear of public shaming might not be a more effective deterrent to crime than the current system which my lawyer friend tells me is a corrupt joke and is not much of a deterrent to boot.)

After all the Supreme Court has now overruled the legislatures and the juries in multiple states based on their own moral sensibilities...pretty arrogant if you ask me.

But of course my opinion has nothing to with actual jurisprudence or future jurisprudence even if my opinion would be popular with the public at large. And that is the crux of my dispute with constitutional law as I understand it.

Posted by: noahpraetorius@hotmail.com | Mar 1, 2005 3:40:18 PM


Posted by: Dallas

Jay,

Just a couple of historical notes:

a. Article III does not grant to the Supreme Court the power to establish any lesser courts.

b. The power of judicial review in the form now firmly established flows from Marbury v. Madison, which arose in the context of the struggle for power between the Federalists and the anti-Federalists.

Nothing in the Constitution mandates a broad, generous grant of power to the Supreme Court; it assumed that power.

Posted by: Dallas | Mar 1, 2005 3:44:48 PM


Posted by: Mona

Dallas asks: The question is: Are you prepared to accept the mandates of the Supreme Court if they flow from a majority that thinks like Pat Robertson thinks and applies the same sort of authoritarian approach? Or, to put it in more concrete terms: What would you say if the Supreme Court held, thirty years from now, that "evolving standards of decency" did not prohibit a school board from mandating one hour of Bible study each day for all public school students? Or, if the Court held that "evolving standards of decency" entitled school boards to prohibit the teaching of evolution?

(Sigh) The "evolving standards of decency" approach employed in Roper is particular to the 8th Amendment's "cruel and unusual punishment" clause, which necessarily demands the Court to choose some standard by which to decree what is or is not a cruel and unusual punishment, if the 8th Am is to have any force. By contrast, mandatory Bible instruction in a state institution is not properly, or even coherently, addressed by an "evolving standard of decency" test, since the jurisprudence of the Establishment and Freedom of Religion clauses of the First Amendment are assessed by things like the "excessive entanglement" test.

As I keep writing, the words "cruel and unusual punishment" practically beg for a moral assessment. Cruelty is a subjective notion. (Must a punishment be both cuel AND unusual, or only one or the other? Ambiguity of language is another issue here.)

In any event, if in 30 years the majority of states opted for punishments that Pat Robertson sanctions, then they could not be considsered unusual; whether they could be stricken merely for being cruel is another question.

Posted by: Mona | Mar 1, 2005 3:50:56 PM


Posted by: catfish

Dallas wrote:

"What would you say if the Supreme Court held, thirty years from now, that "evolving standards of decency" did not prohibit a school board from mandating one hour of Bible study each day for all public school students? Or, if the Court held that "evolving standards of decency" entitled school boards to prohibit the teaching of evolution?"

I can't speak for Mona, but I don't see how originalism will prevent this from happening. In fact, those who complain loudest about activist judges are often the same people who believe that as a Christian nation, the government should include teacher led prayer in public schools. If the court decided that this was ok, I believe that they would be wrong. Still, they would be upholding the will of the majority--hardly authoritarian.

Posted by: catfish | Mar 1, 2005 3:52:22 PM


Posted by: Jay Cline

Dallas,

On a) you're right. My mistake. I knew the phrase "inferior courts" was in Art. III, but faulty memory, and lack of caution in double-checking made me goof.

On b), Marbury v. Madison is a judicial decision, no? Which presumable leads to your statement it assumed that power. All the constitution says is The judicial Power of the United States, shall be vested in one supreme Court.

Guess we all have our own interpretation on what that means, but apparently they had the authority to assume it, no?

Posted by: Jay Cline | Mar 1, 2005 3:53:15 PM


Posted by: D.A. Ridgely

Mr. Herzog is certainly correct that The Founders’ Constitution is a nifty little site. One particularly intriguing snippet from the section dealing with the 8th Amendment is a bit of argument by James Iredell (# 11). Iredell claims that the phrase “cruel and unusual” had been appropriated, as it were, from the English Bill of Rights into the various state constitutions because of a failure to recognize that its, ahem, original intent was to restrict the Crown and not Parliament. It would be deliciously ironic if the Founding Fathers botched their own reading of “original intent.”

Posted by: D.A. Ridgely | Mar 1, 2005 3:55:47 PM


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