Notes on a Theory…

Thoughts on politics, law, & social science

Posts Tagged ‘Constitution

Scalia on Law, Words and their Application

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In an interview with Jennifer Senior, Antonin Scalia valiantly dispatched a straw man. A lot of people have noted this, but I wanted to quote it, and suggest that much of the criticism, while correct, misses the main problem.

Had you already arrived at originalism as a philosophy?

I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?


What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.

So first off, what Scalia is saying here is factually–incontrovertibly– incorrect. Words do change in their meaning.  Some have taken this as evidence that Scalia doesn’t know what he’s talking about. And I suppose that’s possible.  But it’s also possible that Scalia takes this position because it helps him advance his legal agenda. That is, it helps him justify the substantive positions he takes, the role for the Court he prefers, and so on. By making this about ignorance, we are missing the politics, which makes it difficult to push back effectively.  ‘Originalism is wrong’ is a fine thing to say, but what originalism is doing and how it is doing it are far more important thing to think about.

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Written by David Kaib

October 11, 2013 at 1:13 pm

Catch 22 and the Death Penalty: Shredding Due Process to Punish the Abused

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Via Sentencing Law and Policy, Justice Sotomayor dissented (pdf) from a denial of review for a death penalty case, and her opinion illustrated two important points.

Petitioner Benny Lee Hodge was convicted of murder.  Then, after his trial counsel failed to present any mitigation evidence during the penalty phase of his trial, he was sentenced to death.  In fact, counsel had not even investigated any possible grounds for mitigation. If counsel had made any effort, he would have found that Hodge, as a child, suffered what the Kentucky Supreme Court called a “most severe and unimaginable level of physical and mental abuse.” No. 2009–SC–000791–MR (Aug. 25, 2011), App. to Pet for Cert. 11.  The Commonwealth conceded that counsel’s performance was constitutionally deficient as a result.  Yet the court below concluded that Hodge would have been sentenced to death anyway because even if this evidence had been presented, it would not have “explained” his actions, and thus the jury would have arrived at the same result.  Ibid.  This was error. Mitigation evidence need not, and rarely could, “explai[n]” a heinous crime; rather, mitigation evidence allows a jury to make a reasoned moral decision whether the individual defendant deserves to be executed, or to be shown mercy instead.  The Kentucky Supreme Court’s error of law could well have led to an error in result.  I would grant the petition for certiorari, summarily vacate, and remand to allow the Kentucky Supreme Court to reconsider its decision under the proper standard.

Just so we’re clear, Hodge failed to get his constitutionally required level of performance from his lawyer, effectively denying him his right to counsel and due process.  And the Court will leave this stand.  This passage shows the catch-22 of the death penalty. The Court has insisted that due process doesn’t require getting a correct result, it requires following the correct procedures. This is why actual innocence is not a federal claim.  But when, like here, basic fairness has been denied, whether because of incompetent state appointed defense lawyers, or cheating by police or prosecutors, the Court shifts.  No longer is following the correct procedures what is required. Instead, there is an independent inquiry where judges decide what the jury would have done if they had known what they should have known.  This not only undermines the right to a jury trial, but it directly contradicts the reasoning for not allowing innocence claims.

Sotomayor is correct, in my mind, that the Court erred in failing to overturn the ruling below. Mitigation is not about explaining the crime. This is basic stuff.  But it’s important to understand what was kept from the jury’s view.  Like practically all death penalty defendants, Hodge was himself a victim of horrific abuse.  Here the justice recounts the evidence. Read on if you can stomach it.

The beatings began in utero. Hodge’s father battered his mother while she carried Hodge in her womb, and continued to beat her once Hodge was born, even while she held the infant in her arms. When Hodge was a few years older, he escaped his mother’s next husband, a drunkard, by staying with his stepfather’s parents, bootleggers who ran a brothel. His mother next married Billy Joe. Family members described Billy Joe as a “‘monster.’” Id., at 7. Billy Joe controlled what little money the family had, leaving them to live in abject poverty. He beat Hodge’s mother relentlessly, once so severely that she had a miscarriage. He raped her regularly. And he threatened to kill her while pointing a gun at her. All of this abuse occurred while Hodge and his sisters could see or hear. And following many beatings, Hodge and his sisters thought their mother was dead.

Billy Joe also targeted Hodge’s sisters, molesting at least one of them. But according to neighbors and family members, as the only male in the house, Hodge bore the brunt of Billy Joe’s anger, especially when he tried to defend his mother and sisters from attack. Billy Joe often beat Hodge with a belt, sometimes leaving imprints from his belt buckle on Hodge’s body. Hodge was kicked, thrown against walls, and punched. Billy Joe once made Hodge watch while he brutally killed Hodge’s dog. On another occasion, Billy Joe rubbed Hodge’s nose in his own feces.

The abuse took its toll on Hodge. He had been an average student in school, but he began to change when Billy Joe entered his life. He started stealing around age 12, and wound up in juvenile detention for his crimes. There, Hodge was beaten routinely and subjected to frequent verbal and emotional abuse. After assaulting Billy Joe at age 16, Hodge returned to juvenile detention, where the abuse continued. Hodge remained there until he was 18. Over the 16 years between his release from juvenile detention and the murder, Hodge committed various theft crimes that landed him in prison for about 13 of those years. He twice escaped, but each time, he was recaptured.

It would be nice to believe that this was some sort of aberration, but anyone with a little familiarity with the backgrounds of death row inmates knows that it’s not. The death penalty is billed as a punishment for the worst of the worst, but really it is a punishment for those who have been most failed.  No prosecutor wants a jury to hear these stories because it doesn’t fit with how the death penalty is sold.  So this creates incentives to cheat and for judges to look the other way.  That is your death penalty. It convicts the innocent, is racially biased, makes a mockery of the law and provides our harshest punishment to those most brutalized, all while spending more while providing no additional public safety. And the money and attention it uses drain money that could be used to intercede in situations like this, potentially breaking the cycle of violence – if that was what our goal was.

The death penalty is a brutal policy of failure.

Written by David Kaib

December 3, 2012 at 10:41 pm

Against Judicial Supremacy, for Democracy

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[T]he candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Abraham Lincoln, quoted in Larry Kramer, The People Themselves.

Written by David Kaib

November 30, 2012 at 11:39 am

McGovern, Ending Wars and Democratic Accountability

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Paul Rosenberg has a great piece on George McGovern, which in part makes the case that history gets the failed Democratic presidential candidate wrong.  It was McGovern, not those who supported the Vietnam, that was being pragmatic.

But McGovern’s patience with conventional practice was severely limited: when he saw it wasn’t working, he abandoned it. What set him apart was not so much his idealism (remarkable though it was) as it was the supposed opposite: his pragmatism in seeing what was working or not, and changing his strategy accordingly. This is what Johnson failed to do.

That’s real pragmatism, while most of what is justified as pragmatic in American politics involves continuing to do what’s not working.

He also quotes McGovern’s 1970 speech in the Senate on behalf of a bill he co-sponsored to end the war – a bill that ultimately failed.

Every senator in this chamber is partly responsible for sending 50,000 young Americans to an early grave. This chamber reeks of blood. Every Senator here is partly responsible for that human wreckage at Walter Reed and Bethesda Naval and all across our land – young men without legs, or arms, or genitals, or faces or hopes.

There are not very many of these blasted and broken boys who think this war is a glorious adventure. Do not talk to them about bugging out, or national honour or courage. It does not take any courage at all for a congressman, or a senator, or a president to wrap himself in the flag and say we are staying in Vietnam, because it is not our blood that is being shed. But we are responsible for those young men and their lives and their hopes. And if we do not end this damnable war those young men will someday curse us for our pitiful willingness to let the Executive carry the burden that the Constitution places on us. [my emphasis]

So before we vote, let us ponder the admonition of Edmund Burke, the great parliamentarian of an earlier day: “A conscientious man would be cautious how he dealt in blood.”

Those are powerful words.  But I want to focus on this as political theory. The Constitution vests the power over war and peace in the Congress.  It did that for a simple reason – that would place the responsibility on those who could be held accountable by the people.  It would mean Congress deliberating over the question, offering reasons, and taking a clear stand so there was no question where responsibility lay.

Political responsibility isn’t about what elites deserve.  It’s about finding ways to ensure the public can use its leverage.  Generally speaking I think it’s easier to pressure members of Congress than a president. But that requires acknowledging what McGovern says above – the president is only able to make war when Congress is complicit, and that means Congress has the means to stop it.

Written by David Kaib

October 25, 2012 at 11:25 pm

Defending a System that Has Long Since Collapsed: The Electoral College

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Since we’re getting closer to the presidential election (which will not come soon enough), we’ll soon be in that brief moment when we will temporarily notice that presidents are not chosen by elections, but by the strange institution of the electoral college.  Personally, I find the substantive defenses of the electoral college to be so weak they’re barely worth discussing.  It seems to me these are merely tossed in along with the real reason for most, which is an argument based in tradition.  But this too is flawed.  Must we maintain the present system for selecting a president if we wish to be faithful to the Constitution and those who framed it?  Only ignorance of the text and our history would lead us to answer yes.

The present Electoral College system bears no resemblance to the Framers’ design, and thus cannot be justified by reference to their intent.  The Constitution specifies a process that would seem entirely foreign to the modern observer.  Each state legislature is empowered to determine how their electors would be chosen.  Individual electors were to be chosen in each state, unconnected to political parties (which the Framers’ abhorred) and thereby not committed to any particular candidate. Electors in each state were to meet, in order to deliberate and choose two candidates, one of whom was to be from out-of-state.  This process was simultaneously a nomination and selection process.  Electors did not choose from some pre-existing slate of candidates.

These state-by-state meetings were supposed to function like a jury – a group of citizens pulled from the larger population for a particular purpose, who would return to the population on completing their task.  Electors were to make an independent judgment.  It would be no more appropriate for an elector to commit themselves before hand then it would be for a juror to decide a case before trial.  The candidate with the most votes, if he received a majority, would be president.  The candidate with the second most votes would be vice president.  This is how the system functioned in the first two presidential elections, when electors unanimously selected George Washington.

By the election of 1800, the rise of political parties, despite the Framers’ clear wish to prevent them, had broken the Electoral College system they had created.  It has never functioned as originally intended since that time.  That election led to modest constitutional reforms, embodied in the Twelfth Amendment, which accepted political parties as part of the process, and ensured that electors would choose presidential and vice presidential candidates separately.

How we as Americans choose a president has changed considerably since that time, but much of what we today associate with the Electoral College is not determined by the text or by the Framers’ intent.  The rules are generally a product of state law, not constitutional command.  First, we have a primary process to decide nominations for each political party.  In the general election, voters see ballots that list the names of the various presidential candidates, but are really choosing electors who have previously committed to those candidates.  Despite these commitments, those electors are free to vote as they please.  Most states give all of their electoral votes to the candidate who wins the most votes in that state; two do not.  None of these things is a product of the Framers’ design.  Electors still meet in each state, but their role is simply to ratify the choice made by their state’s voters.

Debate over the Electoral College tends to ignore these facts. We are told either that we must maintain the system to ensure fidelity to the Founders’ concerns, such as federalism, minority rights, or protecting the concerns of small states, or reject it because of the flaws they left us.  For the latter group, the tendency is to assume that these flaws reflect the Framers’ purposes – a distrust of the people, and a belief in elite control over democratic institutions.  Both sides miss the point.  Regardless of anyone’s private motives, like most of the original constitution, the presidential selection process was justified on the basis of popular sovereignty.  Their system held out the possibility of popular control, however indirect that control was meant to be.  But more importantly, the framers’ original design may well have done those things, but cannot justify today’s system, which is considerably different.

The Framers left us—the people—two tools for changing the rules.  The first was constitutional amendment, which they themselves used to modify the system in the early days of the republic.  An amendment could jettison the Electoral College and replace it with a direct election.  But they also specifically empowered state legislatures to decide most of the details of the system.  One proposal, the National Popular Vote, would ensure that the candidate who received the most votes would also receive the electoral votes to win the presidency.  It has already been adopted by nine states.

If we the people become convinced that the system we have today does not provide us with control we deserve, then it is our right and duty to change it.  Like politicians have over the past two hundred years, we can do so through state laws rather than constitutional amendments.  Making those changes would help restore the principles of the Constitution; failing to do so makes a mockery of them.

Thomas Jefferson warned us long ago to avoid treating the Constitution with “sanctimonious reverence,” insisting that “institutions must advance…and keep pace with the time.”  At a time when Americans feel increasingly dispossessed from government, failing to ask fundamental questions about how to best strengthen our democracy is no longer a luxury.

For what it’s worth, I’d like to see the development of a democracy agenda.  Rather than arguing about all the many ways our system  (both constitutional and subconstitutional) fails to live up to our ideals, we need to connect the various problems and solutions.  And while constitutional change is a worthy goal, there are many things we can do short of that which would improve things tremendously, and make constitutional change more likely. That agenda could include–an end to the unconstitutional filibuster, a universal right to vote, and public funding for campaigns, along with jettisoning the electoral college.  And we can do the last one (and for that matter, the first one) in the knowledge that we aren’t killing anything the Framers put in place.

A Government of Enumerated Powers….Sometimes

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On Thursday, every single member of the Court agreed that the Constitution is one of enumerated powers, as the justices split three ways in ruling on the American Care Act, a comprehensive health insurance reform bill: upholding the mandate, but as a tax under the power to tax and spend and not a penalty under the commerce clause, striking down the provision authorizing the Secretary of Health and Human Services* to penalize states that failed to participate in the expansion of Medicaid , but allowing the Medicaid expansion and the Secretary’s authority to stop funding for the expansion.  Chief Justice Roberts’ opinion (pdf) waxes poetically about the centrality of the principle that the Constitution only allowed for enumerated powers at the federal level.

The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid. That is, rather than granting general authority to perform all the conceiv­able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.

While not all the opinions were as explicit about this, they all rested on this idea.

This contrasted quite strongly with the position taken by all nine justices in Arizona v. United  States  (pdf) that the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration despite disagreeing over whether Arizona’s punitive immigration law was preempted by federal law.  This is from the majority opinion (which Roberts joined)

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982);see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)). [my bold]

The odd thing is that both positions were consistent with past decisions. When it comes to foreign affairs, the Court has, at least since United States v. Curtiss-Wright Export Corp. (1936) if not the Chinese Exclusion Cases in the 1880s. When it comes to domestic affairs, the enumerated powers principle has held sway. One could make an argument that the Constitution only was meant to be a system of enumerated powers with regard to domestic affairs (Curtiss-Wright does just that, although I’d say it’s not persuasive in the least). But typically, the two claims are made without such qualifications.  And of course, the lines between domestic and foreign affairs are fairly blurry (for example, with powers relating to ‘national security’ largely unmoored from any limits at all yet applying to American citizens existing well within the interior).

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

*Seriously, what are ‘human services’?

Written by David Kaib

July 2, 2012 at 5:01 pm

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