Nice point - just to add a detail, since DC is not a state, the 14th amendment didn’t apply. DC schools were desegregated BEFORE Brown, in a different case that didn’t rely on the 14th amendment.
Okay, but this doesn’t allow any/all forms of the death penalty, and if, for example, drawing and quartering is “cruel and unusual”, then it is banned; if lethal injection is “cruel and unusual”, then it is banned; if a firing squad is “cruel and unusual”, then it is banned; etc.
Yes, certainly. And an originalist would say the same. Indeed, AFAICT that was much of the original intent behind the “cruel and unusual” clause. The Founding Fathers intended to outlaw cruel forms of the DP - no drawing and quartering, no burning at the stake, etc. Forms of the DP that aren’t cruel, like hanging, would not be cruel, and that would set the bar in terms of what could be outlawed as forms of the DP.
The idea that is wrong is that the death penalty is cruel and unusual in itself and therefore un-Constitutional. That would be interpreting the Constitution so as to make it contradict itself, which is an incoherent argument. If the Constitution contradicts itself, it needs to be amended. Which is a power to be exerted by the states or the people, as the Tenth Amendment states. Not the federal government, including the Supreme Court.
If one wants to argue that lethal injection or whatever is more cruel than hanging, one can try, and if the argument prevails, in theory lethal injection could be outlawed as a method of the DP. This, however, would do nothing to establish that the DP is itself cruel and unusual or un-Constitutional.
The Constitution also outlaws excessive fines. The Court could find that some amount of fines is excessive, and that amount would be un-Constitutional. But fines themselves are not. IYSWIM.
Regards,
Shodan
I’ve always been more of a textualist than an originalist. I agree with “living constitutionalists” that in some ways, as society changes, the meaning of the Constitution changes. The “cruel and unusual” clause is a great example.
But very little of the Constitution is like that. “The Congress shall pass no law” still means exactly what it said when written.
THe Constitution is law, so it can’t just magically change with the times if a very clear clause is no longer convenient. If the 3/5ths rule was still valid, then that’s what we would be living under today. We can’t just make a collective unconscious decision to change our laws without actually writing it down. Which is why amendments are passed.
I agree.
But just to be clear: the Constitution does not MANDATE the death penalty. We can eliminate it legislatively without amending.
And we should.
Yes, we could, but “we” doesn’t mean the Supreme Court. Because the death penalty is Constitutional.
And no we shouldn’t. (A gratuitous assertion may be gratuitously denied).
Regards,
Shodan
Why is that a “nice point”? What does legislation about DC schools have to do with the text of the 14th amendment? We are talking textualists here, not originalists. And remember: the 14th amendment was approved by the required number of state legislatures, none of which had any input into DC public school policy. If you’re going to delve into original intent, what about the intent of all those state legislators who did NOT favor segregation or who were from states where segregated schools were never codified into law? This is one of the problems with original intent-- there are so many people involved it’s almost impossible to know what their collective internet was. But we know exactly what was written down on paper.
Conceded. That was a gratuitous assertion. I have supported it more fully elsewhere, however.
On the Brown v Board issue, I think even originalists and textualists have to admit that if a founding father had declared martial law and confiscated all firearms, he’d be in violation of the Constitution, no matter what role he played in writing it himself. No reasonable court would give him a free pass just because he helped write the Constitution.
So I think even an originalist can say something like this: While the original writers thought segregated schools could be compatible with the 14th amendment, and while previous courts ruled for equivalent-but-separate facilities, we now have evidence that segregation is harmful in and of itself. With our new information, we have to conclude that equal protection and segregation are incompatible. Segregation is a legislative issue, while equal rights is a Constitutional issue, so equal rights has to win out.
That’s a good point. After all, the Court confronted the issue of equality in Plessy v. Ferguson, and ruled that the Constitution required equality, not mixing – the infamous “separate but equal” doctrine you mention.
Brown rested on the judicial notice that segregation was not, in fact, creating equal facilities and access, as well as the legal requirement for equality.
I don’t think an originalist would make that argument. An originalist would argue that the constitution should be amended to reflect this new information.
However, a textualist doesn’t have this problem since Separate but Equal is not enshrined in the constitution-- it was a SCOTUS precedent that can be overturned by another SCOTUS ruling.
Nitpick – reversed, not overturned. Only a higher court can overturn a ruling, and it is manifestly impossible for SCOTUS to be higher than itself.
Nitpick, “grenades, machine guns, howitzers” are legal but taxed at the federal level and flame throwers are un-regulated for civilian ownership.
But the but the “only if they had it back in the day” argument has always been false, does the freedom of religion not extend to Mormons, does the freedom of speech not apply to anything but stuff printed on dead trees by set type?
OK. Sideturned then. 