Great. So you’ve shown you can recite the standard arguments against a Living Constitution. For my view of those arguments, see one of the other half-dozen threads where we’ve discussed it.
What I was talking about in this thread was something in between a Living Constitution and Originalism as understood by Scalia. This has nothing to do with substantive due process. Since we agree that judges ought to have the power to restrain the other branches, I was arguing that if we also accept the premise that the way the Constitution works is for past majorities to predict the behavior of future majorities, then that conclusion should change how we view those principles. We must necessarily view them as a sort of educated guess about how future political majorities might go awry. I believe that the logic of these principles themselves can sometimes lead to conclusions that the framers did not anticipate. And that, if you buy the premise, a little more flexibility is in order.
If the 8th Amendment did ban torture of suspects, a person with standing could sue in court for an injunction to stop the torture of a suspect under the 8th amendment.
I am pretty sure under the current US torture laws, even if was clear that the President was authorizing torture, nobody has standing to sue for an injunction under the torture laws or to do anything under those laws. It is in the executive branch’s power to enforce the law. If the administration chooses not to enforce the torture statutes, there is really nothing anyone can do unless Congress gets involved or a special prosecutor is authorized.
(But, other provisions of the Constitution and federal law make all this moot.)
But his is the consensus view on this issue. Keep in mind it’s not torture, per se, that is the issue. If Congress passed a law that said “X” was illegal, and anyone convicted of “X” would be sentenced to bamboo under the fingernails, I have no doubt Scalia would find that in violation of the 8th amendment.
You know, I don’t even want to get into a debate about that, because it isn’t germane. You are moving the goal posts from your original statement that:
So, is it your contention now that you can never do this except in those instances when you can? But that’s also true of what the Court does-- it’s widely accepted by those who have studied the Court that it has made significant changes in social policy only when the time was right for it to do so. It’s no accident that the Court ruled the way it did when it did in *Plessy *or in *Brown *or in Roe.
I’m not moving the goalposts anywhere. I’m arguing that your examples are not examples of “amend[ing] the Constitution to protect minority rights that are currently being infringed by the political majority.” What happened in those cases is that the majority changed its mind, in no small part because of the involvement of those groups in one of the central acts of core citizenry: war. The Constitution isn’t amended until the majority decides that the Amendment is a good idea. The nearly tautological corollary is that the Constitution isn’t amended to stop abuse by a present majority unless that abuse has already stopped.
Additionally, you seem to have the impression that I think this problem can be solved. I do not. It is part of the what it means to have a Constitution, and it cannot be avoided. All I’m saying is that if we accept this fundamental truth, it has an effect on how we ought to interpret the document.
If you’d debate me with a little more charity I think you’d see that I’m not advocating the simple strawmen you are knocking down.
That’s absolutely true. But I do not see what it has to do with my point.
“His view which is the consensus view” isn’t even his view. Remember, he thinks the “plain meaning” of the word trumps. Unless you have evidence that the “plain meaning” of punishment was limited to convicted criminals at the time of the passage of the Eighth Amendment, then he should, by his own legal philosophy, consider torture to be a form of punishment.
So, he’s either an originalist of the variety that he claims, or he’s not. I can work with either, but not both.
Uh-hum. Let’s not get into accusations of clarity, because the original statement of yours that I objected to wasn’t at all clear. I honestly don’t know, and I doubt you do either, whether a majority of men in the country in 1919 supported women’s suffrage. All we know is that a majority of the legislatures did, and by the time the 19th amendment was put to a vote, there were already 28 states with at least partial suffrage for women. And, I’ll point out, those states didn’t all give women the right to vote after 1917 (ie, WWI era).
In the case of women suffrage, legislators could, to a significant degree, ignore the backlash they’d get from men because they’d be picking up plenty of support from the new women voters.
You said that a limitation to what you call originalist interpretation because it depends on the will of the majority. But the court doesn’t seem to act until it thinks the tide has either turned or is about to turn. And even then, it’s easy to overstate the impact the court can have. *Brown *is widely viewed as a watershed in civil rights, but not much really changed for Blacks in the South until the Civil Rights Act was passed by Congress a decade later.
Beneath it all are shared values of common decency, humanity, and mercy. The legalistic sophistry that allows that cruelty as punishment is something a civlized nation simply won’t do, but cruelty as a instrument of interrogation is somehow exempt from the ordinary bounds of decency buggers all reason. It is vile, repulsive, and beneath the contempt of any self-respecting person. That Mr Scalia would embrace such rhetorical slight of hand speaks volumes about his character. What good is the brightest mind if not guided by a humane spirit? What doth it profit a man to gain the whole world and lose his soul? What doth it profit a nation to gain a momentary safety at such a cost?
And what, Sweet Jesus, what do we say when we are wrong? When we are sure we have the man, and we don’t? When we are sure he can tell us what we need to know, and he cannot?
“Ooopsy”?
Mr Scalia describes himself as a Christian, he might well consider the advantages of atheism for one with good and sufficient reason to dread Judgment.
Since I do not buy that premise at all, and indeed find it quite flawed and without much merit, I guess we can cease bothering to discuss how you feel the Constitution should be interpreted on that basis.
Charity, John. Charity. The concept that when reading someone’s post, you try to interpret it in the light most favorable to them. When you come up with an interpretation that makes them seem ignorant, you consider for a moment whether you’ve misinterpreted it before proceeding. A valuable concept on this board.
I have no idea either. That’s why I’m relying on the weight of the consensus of historical opinion. If you want details, you can consult either of the two sources I cited, and the many sources they cite.
Precisely. Which is what I mentioned in my first post. That is one of the ways in which voting rights examples are unique.
I can’t tell what you meant to type with that first sentence, please clarify.
Clearly, that is one of the purposes. But the purpose? Applying your worthy principle of charity, I offer that you have inadvertantly exaggerated your position.
I might point out one facet of the discussion that seems to have been mis-interpreted, though I see someone else recently re-directed the discussion and has been ignored.
No one here has said that the Eighth Amendment does not make torture unconstitutional. Quite obviously, torture used as a part of the judicial punishment process would be a violation of the Eighth Amendment.
Justice Scalia asserted that the Eighth Amendment does not apply to torture engaged in outside of that process. He was, and is, correct, even if you do not accept his particular reasoning for making that conclusion. Further, his reasoning is pretty close to the reasoning used by the Court in any opinion which has touched on the issue of what constitutes “punishment.” As I have pointed out previously, his reasoning has long since been abandoned by the Court when interpreting the words “cruel and unusual.”
Of course, as I also pointed out, the resulting chaotic mess of rubrics for applying that part of the amendment leaves most people in complete mystery as to the probable conclusion of the Court with respect to just about any punishment posited.
I didn’t say that at all. Do not put words in my mouth, please.
I said that the Constitution is not the result of an attempt by past majorities to “predict the behavior of future majorities.” Your theme requires this fundamental assumption, it seems. I disagree with it.
Indeed. It’s valuable on both sides of any argument. Look, you made a blanket statement about how something could “never” happen. When I pointed out that it had indeed happened, you claimed a special case. And you claimed it with very little supporting evidence, making a considerable leap. If we’re going to up the ante in our debating tactics, hows about just saying that you overstated the case, and that there were some exceptions? And further…:
You are asserting that they are unique, but I don’t see that they are, and you haven’t made the case that they are. If a state is 70% White and 30% Black, issues of Black civil rights are going to be almost universally appealing to Blacks. You only need a minority of Whites to side with Blacks in order to overturn past discriminatory laws passed by the majority White political base. Universal suffrage is key to being to do this, but it is not unique.
Never mind. It was a side issue, and we’re having enough trouble communicating on the main one.
How many times must it be pointed out that Scalia’s view of punishment as meaning penalty imposed as the result of conviction of a crime is exactly how the wording has been interpreted by the Court throughout the nation’s history?
And where the heel did this “what the man on the street thinks” business come from? Who has ever advanced this as a measure of consistency against which Scalia should be measured?
So then you agree that one of the fundamental purposes of the Constitution is to restrict future majorities, but you disagree that past majorities must predict the behavior of future majorities? How do you have one without the other?
I don’t think they are exceptions, in part because I think my statement is true by deductive logic.
Here are the premises:
The Constitution requires the consent of a supermajority in order to change.
Legislators will not amend the Constitution to restrict behavior they find acceptable.
Legislators will find acceptable that behavior in which they actually engage.
Therefore,
The Constitution will not be amended to restrict behavior engaged in by a current majority of legislators.
Now, I could be missing something, but I don’t see how the voting rights amendments attack this argument. Can you help me out by pointing to which premise you think is falsified by your examples?
If the issue up for vote is giving blacks suffrage, then a majority of whites must decide that. Of course many things might happen to convince them that enfranchisement is the right decision, but then the example falls outside what I’m discussing.
The only reason the relative percentages become important is that as the vote passing becomes more likely, more white legislators will vote for it out of political expediency since they will be subject to the votes of the newly enfranchised class. That last part is unique to amendments that expand voting rights, is it not?
That’s not true. Now, my rebuttal is based on personal knowledge of the man, so here I’ll simply point out that if it IS true, it’s in no way demonstrated by the evidence offered in this thread. As a judge, it’s not his job to impose decency and humanity by re-writing the substantive law. It’s his job to interpret the law.
Look, as a defense attorney, would you accuse me of having lacked decency and humanity for fighting vigorously to free from jail a man who had raped? I hope not – it was my job to question the state’s proof, and point out problems in their case. The end result of my actions sometimes put a rapist out on the street. So was I an inhuman monster?
Sir. Would you please stop putting words in my mouth that I have never said. If you persist in this debating tactic, I shall cease to comment back to anything you say and will ignore what you say.
I have never said anything of the sort. I stated my position quite aptly. I stated that the purpose of the Constitution is to lay out a scheme of government, by which all parties to the process know what to expect, and what they can and, more importantly, cannot do. I see precious little evidence that the framers were worried about what “future majorities” would do. Indeed, the whole basis of the Bill of Rights is not to restrict future majorities, but, rather, to avoid the possibility that some relative minority of federal officials, in the name of the “nation’s interest,” sought to infringe upon the rights of the people and the states. Note that, as set up, the Constitution does not require that ANY majority of “the people” have elected one single member of Congress, nor the President. So the federal government is not required at any point to be reflecting the majority of anything, other than to the extent that passage of bills reflects the assent of the majority of voting Congressmen.
This notion that the framers of the federal Constitution were sitting there evenings worried about what the future might hold if they didn’t put certain language into the document is quaint, but unsupported. They were, as most men are, worried about the here and now. The “immediate future” if you will. What tended to make those among them who stood out stand out was that they, at least, showed some willingness to consider other, perhaps longer term issues. But the group of founding fathers as a whole? Not a chance.
Aw damn contrary! It is most assuredly his job, as it is mine, but his more than mine for the training and the power.
Why was the Amendment even there? To what end are we prohibited from applying cruelty to those in our custody, if not to establish ourselves as a nation ruled by a Constitution founded upon decency and humanity? Was the intent to establish a humane rule but only in this one narrow particular, but to assure us that outside of those narrow parameters, savagery is perfectly acceptable?
Are we to believe that the Founders worded this in order to create an opportunity for a vapid intellectual argument? Or that they went to great lengths to assure the rights of the accused, but intentionally left his accusers the option of torture? Does that make sense to you, counselor?
A man of his gifts and training could find no argument, none? What about the right to resist self-incrimination? TG, IANAL but even one with my feeble intellectual gifts might find some daylight there, don’t you think? Yet Scalia, with all his brainpower, cannot?
The Founders intended to foster decency and humanity in the New World, and that intent is clearly established. Are we believe that they intentionally left a loophole so that we can treat the accused with savagery, but not the convicted? On what planet does that make sense?
Huh? Wha? With all due awe, friend** Bricker**, that doesn’t make a whole lot of sense to me. Have you an option available whereby I may disagree without accusing you of being a monster?
