I think it’s pretty likely that if some states start banning abortions there would be a serious effort to enact an anti-abortion equivalent to the Mann Act on the federal level.
Need I point out that the Bill of Rights were not judicially-created? They were actually amendments to the Constitution. Ten of 'em. I have no heartburn whatsoever changing the Constitution by amendment.
Never heard of the “Child Interstate Abortion Notification Act”, I take it?
While it is, by necessity, age-specific, I think that it comes close enough, and I don’t see any reason to believe that there wouldn’t be similar attempts at stopping adults from getting interstate abortions, if abortion became illegal in some states, but not others.
C’mon, Bricker. You know good and well that getting a Constitutional amendment passed is virtually impossible nowadays. You’re don’t want any changes made, so you prescribe a Constitutional amendment as the only way to establish a federal power against torture, which you know will not work, and we are supposed to nod sagely and agree that it’s a terrible tragedy but there isn’t a thing we can actually do. After all, it’s impossible that anyone should interpret the plain language of the Eighth Amendment as meaning you can’t torture people who aren’t convicted of crimes, why that’s CRAZY talk.
Yeah, right. The Supreme Court has repeatedly gotten the Eighth Amendment wrong. The present Court is not likely to get it right. But someday, some Court will, if there is a United States in our future.
Why? In 1970, Congress tried to lower the voting age to 18, and the Supremes said no – Congress has no power to set the age for voting in state elections. So Congress proposed an Amendment, and the requisite number of states ratified it. Same number of states we have now, by the way, as existed then.
What you mean is, “It’s virtually impossible to get MY amendments passed, because the stupid rubes don’t know what’s good for them and won’t appprove them.”
Too damn bad. If your ideas are of such value, and you really believe in our notions of self-governance, then the amendment process is fine. It’s only when you want the country to adopt your ideas even when they don’t have majority support that you run into problems, and whine about it.
No, we have a established a federal power against torture through legislation. The fact that Bush chooses to ignore that legislation is a different matter.
Gotta love the reasoning, it ain’t “cruel and unusual punishment” because its not punishment, its simply torture, and the Constitution has nothing to say about torture. Solid reasoning used to reach a desired but irrational conclusion, it is a perfect example of the pejorative sense of “sophisticated”. It perverts reason to savage purpose, it pretends to humanity while it degrades humanity.
And when Mr Scalia says the Constitution obstructs progress, and is intended to obstruct progress, I realize he is being confrontational and sarcastic, but I don’t think he’s kidding. And he has to realize that the sort of reasoning he applies here is the sort that makes one ask if he were educated by Jesuits.
He knows full well that the intent of the Founders was to enshrine and solidify human rights in a fundamental way, a new order in the world. In its time, it was the very definition of Progress, a breaking light in a dark world. It is a secular miracle of progress.
But if a man be clever enough, and determined enough, and sophisticated enough, he can pervert that avatar of progress into a means of obstruction. And like most men who ought to be ashamed, he isn’t.
One problem is that you can never amend the Constitution to protect minority rights that are currently being infringed by the political majority. The same majority that is committing the abuse is the majority that has to confirm the amendment. Heck, the only way we got the 14th Amendment passed was by not letting the Southern states vote on it.
So, the only amending that can happen with respect to preventing the tyranny of the majority–one of the goals of a Constitutional Republic–has to happen prospectively (i.e. before that abusive majority becomes a majority). If you wanted to amend the Constitution to prevent the torture of terrorists, you had to do it before 9/11.
Recognizing that effective change in the name of protecting political minorities has to happen prospectively, we ought to ask ourselves what kind of constitutional jurisprudence most enables that.
On the one hand, this is a powerful argument for originalism. This argument emphasizes the Constitution as a bulwark against what in the future is thought to be acceptable by a political majority. Hence, future judges ought not interpret the Eighth Amendment according to what a majority of their contemporaries believe is cruel, because that is the very thing the Amendment seeks to guard against.
But, on the other hand, it is also an argument in favor of reading principles from the Constitution instead of rules. If we recognize that past majorities are putting constitutional provisions into the slipstreams of time–without knowing exactly what they need to guard against, how their embedded principles will be seen to interact with the facts and beliefs of the time, or how they will be assaulted–then our judges whom we trust to interpret such things without prejudice ought to be flexible in putting their intended principles into effect. Not flexible in the sense that they respond to society’s current mores, but flexible in reading each provision written by men who could not see the future but nevertheless sought to control it.
ETA: And perhaps the originalism side of the argument can be neutralized by a jurisprudence which emphasizes progress (i.e. allows flexibility in finding more things to be cruel, but not fewer things). Not progress according to the current majority, but progress according to the logic of the principles themselves. [Just a half-developed thought here.]
How did women and 18 year olds get the vote? I realize women aren’t technically a minority, but they didn’t have a vote in whether or not they got the vote.
And let’s not forget all the civil rights legislation that has been passed. Not everything needs to be in the constitution.
In short, I think your premise is flawed.
Also, I don’t see people here advocating originalism-- I see them advocating textualism, which isn’t the same thing.
No, it is simply a matter of being a country ruled by laws vs one ruled by men. Torture is anathema to most Americans. That’s why we have laws against it.
What is your view of our quaint little notion that we are a self-governing people mean? Specifically, in light of this willingness to place power in unelected, lifetime-appointed judges?
As I recall, the the logic behind that one was that there was a draft in force at that time for the Vietnam War, and people were saying, “If we can call on our 18-year-olds to die for the country, then maybe they are also old enough to have the right to vote.” It was an irresistable argument. The exception that proves the rule as it were. The liberals were using it to confound the conservatives, and the conservatives had no argument against it that would not make the draft seem even more wrong than it was.
Bull. I’m not sweating an anti-abortion amendment to the Constitution passing because I know there’s more than enough opposition to it to prevent it. I’m not sweating an “Everyone is not only permitted to own a gun without a permit, but MUST own one law” because there’s enough opposition to prevent that too. On every pressing question of the day, there’s enough opposition to prevent one side getting a Constitutional Amendment passed to confound the other side. Conservative OR liberal agendas are both stymied by the amendment process. It’s only stuff that’s politically neutral that can pass, or the rare item like the 18-year vote that gives one group an advantage and another group can 't oppose because of other items on their agenda.
Perhaps you’d care to name an item on the conservative agenda that you think could easily be passed. I’m not worried about it, because I know it can’t be done. Even a ban on gay marriage amendment would run into enough opposition to shut it down. It’s not just MY agenda that can’t be enabled by the Amendment process. That’s how I know people who advise others to get an amendment passed to make change are speaking with forked tongues.
We don’t NEED a Constitutional Amendment because there’s ALREADY one that forbids CRUEL and UNUSUAL punishment. The fact that some learned scumbags on the Supreme Court have used cheap sophistry to discount the clear meaning of that language doesn’t mean they always will. The language to forbid torture is RIGHT THERE, all it takes is jurists with the moral strength to use it. It’s too bad we’ve got what we’ve got right now … another argument for a long string of Democractic presidents who’ll appoint men of stature to the Court, to replace what we now have.
The fact that Bush CAN ignore the legislation is the problem. Suppose I go around setting fire to your dog. You go to the cops and say, “He burning my dog!” They say, “There’s a law against burning people’s dogs, but for some reason, we can’t enforce it. Sorry.” And I keep burning your dog, crying, “I burning your dog!” with glee. You gonna be happy with that situation?
The Bush administration has not ignored legislation on torture. They have taken a very hard look at the torture legislation and interpreted it narrowly. Taking a hard look at something and interpreting it is pretty much the opposite of ignoring it.
I am not sure what his happiness has to with the legal issue. I am pretty sure that a victim cannot compel the police to do anything or compel prosecution of a crime.
http://bulk.resource.org/courts.gov/c/F2/477/477.F2d.375.72-1450.596.html
Two reasons that are basically the same for both cases. First, each group was actively in engaged in a war effort before getting the right to vote; this made the majority sympathetic. And second, because of the nature of the right bestowed, game theory dictates that as the amendment got likely, more people would support it.
Of course not everything needs to be in the Constitution. And if you’ll take note, I am not proposing any amendment. But if you’re going to conclude my premise is flawed, you’re going to need more.
You use those terms as if they had well-established meanings. They don’t. Scalia calls himself a Textual Originalist. But scholars disagree about what Originalism means, and people who describe themselves as Originalists often mean different things. I used the term Originalism because as a short-hand on a non-legal message board, more people know what it means.
What? Your judicial philosophy is precisely as counter-majoritarian as the one I’m proposing. You expect judges to uphold the wishes of 18th century white men until a current supermajority changes the document, which is exactly what I’m suggesting. So I would equally ask what is your view of our quaint little notion that we are a self-governing people mean?
It is impossible to understand the Constitution as something other than a limit on political ideas that might be fashionable in the future. That is its purpose, to construct a set of written rules to bind future majorities. If you’ve got some other theory of the Constitution, I’m all ears.
You ask why we would give this power to judges. Who would you prefer we give it to? Do you think the current political majority is the body suited to police the current political majority? We expect our judicial branch to review the actions of our political branches for consistency with the Constitution–which is nothing but the expression of principles of some past political branch. I thought you expected that same thing. Am I wrong?
That’s a stretch. I’m not sure how women were “actively” involved in a war effort, but if they were, both groups had been actively involved many times before and nothing happened then. If you look at how women had been gaining the vote at the state level, it didn’t seem to have much of anything to do with war.
Well, I gave two explicit examples that showed your premise was flawed. How many more do you need? You can’t just hand-wave them away as you did.
In that case, can you define what you mean by those terms? If they don’t have established meanings, how can people on a message board “know” what they mean? Frankly, I think a lot of folks here only know “originalism” to mean “bad”.
Evil Captor, you have failed to answer with your assertion about the Eighth Amendment the simple question I posed some pages earlier. Namely: why should we re-interpret the meaning of an amendment that had a very specific meaning when it was added to the Constitution? Specifically, the Eighth Amendment applies to punishment as applied as a result of judicial process. That’s what the words “cruel and unusual punishment” have always meant since they were first conceived as part of a “right” back in 1689. You wish them to mean something else, now. But you advocate no good reason for changing their meaning, other than that doing so would help us to stop what you perceive the current administration is doing that you feel is “torture.”
Now, before you get to where you wish to try and defend the Supreme Court making such a change (because certainly an argument can be made that they could, and should, alter the meaning of the amendment), I direct your attention to that notorious concept of Constitutional Law known as “substantive due process.” This was an attempt by the national judiciary to subject laws of the Congress and the various states to substantive review. In short, the judiciary began scrutinizing such laws to see if they violated basic tenets of “liberty.”
Which sounds quite nice until you see what type of laws they invalidated with the concept. Thus, a law passed by the state of New York, limiting the number of hours a baker could be forced to work in a week to 60 (with no more than 10 a day), was declared unconstitutional by the Supreme Court of the United States. In their opinion in Lochner v. New York, 198 U.S. 45 (1905), the Court determined that the law impermissibly infringed the “liberty” of the master and employee to contract with each other as they chose, and did so for no valid purpose. They rejected the contention that the legislation was a valid attempt to regulate the health and safety conditions for bakers.
Similarly, in other cases, the Court declared unconstitutional legislation setting a minimum wage law for women, laws from both Congress and the states prohibiting “yellow dog” (anti-union) employment contracts, etc. In short, the Court turned itself into a protector of “liberty” by re-interpreting the meaning of the 14th Amendment and 5th Amendment, and applying its own opinions of what legislatures should and should not do.
This approach to legislation caused much difficulty for the then progressive legislatures and (at times) Congress of the early 20th Century. This was so true that, when confronted with repeated rejection of social legislation passed by Congress and signed into law by himself, President Roosevelt threatened legislation that would increase the number of Supreme Court Justices, so that he could “pack” the Court with his own nominees, presumably resulting in a removal of this roadblock. Fortunately, the Justices got the message: “substantive” due process was shelved.
It is important to understand that the Justices of the early 1900s were not bad men, with an intent to preserve big-business at all cost. They simply believed that the general spirit of entrepreneurship that was the basis of so much of this country’s success in the 1800s, combined with the language and ideas of the Constitution, specifically as contained in the due process clauses, required that the meaning of the language be interpreted to further that ability of business and laborers to do whatever it took to make things work. That this re-interpretation of the language and meaning of these clauses resulted in the invalidation of much of the social legislation of the time that was being passed in order to bring order and good living conditions out of the chaos that was the unbridled expansion resulting from the full-blown Industrial Revolution mattered little to them.
Similarly, I do not conceive that your ideas about what the United States should and shouldn’t be doing are evil, or even selfish. I might even laud some of them. But if we learned one lesson from the early 1900s, it is that we tread VERY dangerous ground when we allow the Supreme Court to establish its own interpretation and meaning of words that have been thought to mean something else up to that point. For every case where you wish to use such reinterpretation as a sword of liberty, a shield of freedom, there are equally many cases where such sword, such shield, would be weilded to do much harm to those very same concepts.
The Eighth Amendment has meant a specific thing with respect to what its bounds are relative to the word “punishment” for well over 200 years (actually for over 300 years). I would strongly caution against asserting a new meaning simply to try and avoid the unhappy possibility of the United States committing “torture.” After all, frankly, the people who are doing the purported torturing are hardly likely to allow a thing like a reinterpreted amendment to stand in their way, now, are they?
But here’s the thing. Suppose we determine that the 8th amendment bans torture. The only way that can be useful is to invalidate a law that allows torture in the first place. But we don’t have such laws on the books. Besides, Bush can just as easily ignore (or re-interpret) the constitution as he can the legal code. Somehow you seem to envision the SCOTUS coming down with all its fury on Bush for waterboarding suspected terrorists in some secret CIA prison in Romania. That’s absurd.
Why would we expect the judiciary to CHANGE the meaning of what those words say, simply to protect us from current bad behavior? Do you really believe that to be what the makers of the Constitution had in mind by writing the words down? I assert that they had the opposite notion entirely. Specifically, the Fifth Amendment contains language requiring due process in the deprivation of “liberty” in order to prevent future laws that arbitrarily took one’s ability to be free away, not so as to offer a platform for future Supreme Courts to strike down laws that infringed on the “freedom of contract” or the “fundamental right to vote.”
Any time that you put into the hands of the Court not only the power to restrain the legislative and executive from abusing the powers they have according to the already accepted boundaries of the Constitution, but also the power to re-interpret what that Constitution means, you create the potential for strong societal difficulties. Look, if you will, please, at the considerable societal difficulty we have incurred from the relatively fractured (and hardly comprehensible) result from Roe v. Wade. Without even touching the “right to life” aspects, the whole thing is a complete mess, and that mess can be laid most squarely on the doorstep of the attempt to re-image the Constitution into a sword/shield for the rights of the individual.
Yes, sometimes it works. Often it does not. Or have you not learned the true lesson from the Lochner era?
While I don’t necessarily advocate originalism, Scalia (who this thread is about) does, and it’s a very specific type of originalism which he’s so fond of. It just happens to be one that would define torture as punishment, so I find his current take on it to be a case of “molding the philosophy to fit the desired results”, no matter what everyone else says about the “legal definition” of the word punishment.
As for the word having applied solely to convicted criminals as many here have argued, it’s closely tied to bail (well, baile actually) in the original, and bail comes into play at a time when the person in question is considered innocent of the crime.
Either way, the man on the street would definitely consider torture to be punishment, so Scalia is not displaying the consistency that supposedly makes him so wonderful. Hell, the man on the street would consider sending a kid to the corner to be punishment.
It is not a stretch at all. It is the consensus historical opinion that WWI made the difference for women, and Vietnam for under-18’s. See Akhil Amar, Reading the Constitution (2005); Alexader Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2001). There is, of course, far more to both movements (as I mentioned, there is the game-theory aspect), but neither is an example of a political majority’s abuse ending through constitutional amendment.
I didn’t hand-wave them. I distinguished them. And even if you don’t buy the dominant historical interpretation, I don’t see how you think they are really counter-examples to my nearly tautological statement. One of two things can happen. The majority can decide to stop its abuse (in which case an amendment is no longer necessary) or they will not vote for the amendment.
Originalism is a preference for reading the Constitution as a set of discrete rules, or at most, very limited principles, based on what the framers wrote and/or intended. Textualism, which may be either Originalist or not, is a view that the meaning of the text should dominate other forms of interpretation (structural, framing intent, aspirational, doctrinal, etc.). Hence, a Textual Originalist privileges the textual meaning as understood by the contemporaries of the framers of that text.
As I stated, my argument supports Originalism, regardless of whether one is a Textualist or not.