Thursday, March 10, 2005

The Death Penalty Case and Originalism:

The recent Supreme Court case holding executions of those under the age of 18 to be "Cruel and Unusual Punishment" has sparked a round of blogsphere debates on "originalism" and proper jurisprudence. Especially interesting is this debate between Feddie of Southern Appeal and Publius of Law and Politics.

My jurisprudence is probably somewhere between the two of theirs. Feddie endorses "originalism" or "original intent"; Publius calls himself a "non-original Textualist." I consider myself to be both an originalist and a textualist. Yet, I also believe that because certain parts of our Constitution were deliberately written in broad generalities, our Founders purposefully built flexibility into the document and intended it to be interpreted through the lens of law and life as understood by the present generations facing the particular case in controversy in question. I know my position generally isn't associated with "originalism," but I don't see any evidence that our founders desired us to impute 18th Century sociology, complete with all of its prejudices, when applying a broad and general provision of the Constitution to a specific present day, factual circumstance. I call myself an "originalist" because, for reasons I will explain, I think our Founders did not specifically intend us to be "time-bound" by 18th Century historical context.

Let me anticipate a few of Feddie's responses. Let me quote what he has written responding to similar points:

1) If the men who wrote and ratified the Constitution did so...with the understanding that the fundamental meaning of the document's text would evolve over time, then why all the fuss? Why spend all of that precious time debating the meaning of the words to be used in the Constitution if the framers' understanding of those words made no real difference?

A few things. First of all: many of us are not arguing that the words "made no real difference." If someone does argue this -- for instance, I can imagine some deconstructionist, Foucault-inspired critical legal theorist believing that words mean nothing and make no real difference -- I would vehemently dissent. In fact, the words of the Constitution do have objective and timeless meanings that do not change with the time. Publius makes a similar point, that, as "textualists," we all should agree that every word of the Constitution means something. And any interpretation that seeks to "cut out" parts of the Constitution on the grounds that "words have no meaning" so we can do what we want, ipso facto is a bad result. (And BTW: Robert Bork himself has tried to cut out parts of the Constitution -- the 9th Amendment and the "privileges or immunities clause" of the 14th -- on the grounds that they are meaningless "inkblots.")

The Founders made certain parts of the Constitution so specific that no reasonable person could argue over its meaning: "[N]either shall any Person be eligible to that [the Executive] Office who shall not have attained to the Age of thirty five Years...." But they also left some parts deliberately broad and general: "nor cruel and unusual punishment inflicted." And other provisions somewhere in between. It's those broad and general phrases like "cruel and unusual punishment" over which we argue. So why would the Founders intend the meaning to be open to change over time if they spent so much time tweaking the exact language? Very easy answer: The Founders intended the Constitution to last for a long time and thank goodness, it has. It the Founders wrote a Constitution with every jot and tiddle as specifically ascertainable in its meaning as the "35-year-old" executive provision, the document would fast become obsolescent.

Indeed, the brilliance of our Founders was in choosing the exact language of the Constitution, making certain parts very specific, certain parts general and flexible in meaning, and finding the right balance between the general and the specific that has made this document the longest lasting Constitution in the world! Our Founders didn't want us constantly Amending the document either; that's why they made it so cumbersome to do so. By deliberately building flexibility into parts of the Constitution, they ingeniously ensured us a document that wouldn't be thrown out because it became outmoded.

I think our founders knew that certain principles -- liberty, equality, property, commerce, conscience -- were indeed, "timeless," "objective," and hence "unalienable." But if they attempted to tell generations hundreds of years later how liberty, equality and conscience, etc., must be understood in their time...I think our Founders wisely realized that they didn't possess the information to "best" answer these specific questions. Hence, they left it up to future generations to answer them by writing such provisions of the Constitution in broad generalities.

Another problem of Feddie's is that many decisions with which he would disagree are supported by the Constitution's text. Not only are they supported by the Constitution's text, but as I will demonstrate, Feddie's version of "originalism" actually is oft-used to subvert the text of the Constitution -- making us so-called, "activists" more consistent textualists than the so called "original-intent" folks, ala Bork.

For instance, Feddie writes:

[N]o matter what the Supremes say the founders clearly did not believe that pornography (or the like) was First Amendment "speech." That's not even a close call.

Well let's look at what the text of the First Amendment says: "Congress shall make no law...abridging the freedom of speech." Assuming arguendo that we are not debating which governments, i.e., "Congress" or state and local, are bound to this norm, let us ask textually what exactly the rule is saying? How about: "government can't censor." Can't censor what? "Speech." What is speech and why isn't pornography speech? Is it because speech is words and pornography is pictures? So government can censor any pictures, including political cartoons and moving pictures like Fox News? No I think Feddie would agree that speech includes both words and pictures. So if speech = words and pictures. And if pornography = words and pictures. And if the First Amendment is telling us that government can't government can't censor words and pictures, then the First Amendment seems to be saying that government can't censor pornography. Simple logic, right?

Now when Feddie says that pornography is not "First Amendment speech," I wonder where he derives such an answer because it's certainly not found within the text of the Constitution. When asked whether government can censor pornographic speech, I consistently follow the text of the Constitution and say no, whereas Feddie argues that the text of the Constitution doesn't mean what it says it means, that yes, in reality, even though the text seems to say, "government can't censor," government, in reality, can censor. Huh?

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