Sheridan: Con-Law

A MACHINE TO REGULATE CHANGE

After I called the attention of some close relatives to an item here that referred to a bit of family history, one of my close and dear ones replied and donated a few Con Law views.

Here's what she said:

"Americans know the rules.

Amending the constitution should not be allowed. (Horrors!)

Whiny yammering should not be allowed.

Our forefathers were a God-fearing, respectful people, who believed deeply that faith and goodness shall stay the day. And, oh yeah, carry a weapon to protect your own.

 

Religion shouldn't have anything to do with any decisions on constitutional changes. When something is against living ones life, or having a quality of life equal for all, I get aggravated.

If I work my entire life for 'my stuff,' don't tell me that someone can take it, because they think they have a better purpose for it. [A reference to last week's decision in Kelo v. New London on eminent domain, no doubt.]

 

Someday I'll read the constitution and try and figure out how it survived since 1776 to about 1930 before a bunch of lawyers and/or feel good groups gathered to decide that it needed to be amended.

Too many lawyers (oops my bad), too much gab on their tongues, bring on the British system, if you lose your suit you pay all legal costs of both sides. Frivolous suits go bye-bye and our constitution stands on it's own merit.

When was the first amendment to the constitution? And what were the dates of subsequent amendments?

And is there a cluster of amendments that shows an historical changing of life as we know it? And then one can jot in the presidents in office at the time the amendments were legislated with their affiliation to a political party. Wheel spinning I think, but an interesting study just the same."

 

I replied:

As to the Constitution, you need to catch up on your reading before you go pronouncing on factual-legal matters.

The Constitution was amended by the Founding Fathers in 1791 (1st Ten Amendments), by almost the Founding Fathers in 1794-98 (11th), by a lot of the originals in 1803-04) 12th, then again three times shortly after the Civil War (13th - abolishing slavery), (14th - liberty, equal protection, due process, citizenship, congressional power to enforce), 15th Negro suffrage).  [When I was growing up, Negro was the proper term, while black could get you beat up.  Old habits die hard.]

These three alone are considered by some to be Constitution Ver. 2.0, stressing equality rather than property (people used to own other people as property and rent them out, beat them, work them to death, and sell their spouse and children).

The income tax amendment allows the U.S. to pay for defense, 1913.  WWI follows.

Women get the right to vote in 1920.

The Depression, inspired by Wall Street, some think, results in FDR and the New Deal that helped keep your parents alive until WWII revived the economy.

The Supreme Court breaks the conservative logjam by a one vote switch in 1937, never to go back to the old laissez-faire, screw the worker (women, children, and your father) economics.  How?  By leaving economic decisions up to the legislatures but keeping hold on liberty issues.

Today's conservatives are trying to reverse this by advocating for conservative judicial activism, which is what the fight is about now over Supreme Court appointments. Back in 1937 (in fact from about 1887 until then) the laissez-faire conservatives were in the driver's seat and the liberals railed against conservative judicial activism. 

Restraint vs. Activism in decision-making is in the eye of the beholder.

Those were the days of the Robber Barons when the working person had no rights at all, much less the consumer.  Beginning with the New Deal, labor got rights, child labor was outlawed, minimum wages, fair labor standards were introduced (wages, hours, conditions, safety), and women got workplace protection.

If you'd read up on all this, you might consider rethinking your broad generalizations unless your middle name is Jay Gould.  I doubt that Wall Street would care to roll the clock back on all this, although I must say that the Bush Administration does seem to be seeking to roll back the New Deal.

Unless you imagine that you prefer living in a 1787 world of slavery, no rights for women, no vote for women, no vote for those who didn't own real estate, etc., there must be some mechanism to allow change. 

The amendment process is unusually cumbersome. 

The remaining mechanism is the power the Supreme Court has to declare other governmental acts unconstitutional, which is where the activist-restraint tug-of-war takes place; that and the nomination process. 

Let me know if you have a better way. 

Refusing to allow change is an invitation to revolution, and revolution is where the haves lose all to the have nots.  Wealthy Loyalists were forced to flee to Canada, losing all. 

Trevor [her soldier son] is fighting for today's Constitution, not the 1930 or earlier version. 

The current one is worth fighting for.  The pre-1954 version legalized Jim Crow. 

It's taken a lot to get this far. 

Be careful what you wish for.

Love,

Bob

L wrote back:

I guess a lot of what you wrote I knew at one time and one does forget the details with time. [Hmmpf...It's the ol' Devil in the details routine, again, I see. OK, we'll chalk this one up to poor memory.]

That was a great history and I've printed it out and am keeping it handy for reference.

Your writing then reminded me of your blog on your students' writing, explaining something complicated in plain vanilla language for 'me'.

Nice and thanks.

Thanks for the info and I enjoy the Blog.

Love you, ...

***

Plain vanilla, that's me. 

She gets it. 

I'm so glad we had the exchange.

One way to look at the Constitution is to understand it as a document that sets forth certain values in a general way, to allow development in specific areas as the need arises, and sets forth certain limits where government may not go, like inside your head and heart (and body, See Rochin v. California, the stomach pump case), and to permit change over time.

Look at it this way; suppose you undertook the task of writing a document that was supposed to govern a country expected to last forever, or at least the next 200 to 500 years.  You know what's happened in the past, which can be summarized in one word:  CHANGE.  There's been a lot of change that you happen to be familiar with.

You want to set forth certain values, and certain limits on government, but you don't want to be an obstacle to change, especially the useful and good variety.  As to what's useful and good, however, while you are willing to say what that is at the time of your writing, you want your children and grandchildren and their children to have the power to make adjustments for conditions that exist then, in the future.  You don't want to handcuff your grandkids, you want to free them to live their own lives, which means to establish their own conditions and rules to the extent they can, paying attention to what has gone before, but allowing modifications for new circumstances.  So you do that by providing for change in the governing document, the Constitution, we call it.

No one should regard you as a God-like being just because you were on the committee that helped to draw up the new constitution you are trying to write.  You have input from others and make a lot of compromises in order to get the thing passed, which is not holy writ from God, but a letter from you to your grandchildren and their kids and theirs, who you will never get to meet.

So you do the best  you can, in all modesty, knowing full well, that what works for today cannot possibly work far into the future, at least not in all respects.  You have to let go, just as you do with your kids.  You raise them not to be under your thumb but to get out from under your thumb.  They have to marry who they please and raise their own kids, their own way.  If you did a good job raising your kids, they'll be capable of raising their own without your help.  They'll make their own good decisions and bad, but it will be theirs.

The one thing you might want to warn your descendants against is looking at you as though you were some sort of a god.  A little respect, please, but let's not make us out to be gods.  The evidence wouldn't support the conclusion.

So we treat the Founding Fathers and Mothers with respect, but do not make them out to be better than they were.  They were parents raising problem children, is what they were.  They did a reasonably good job under the circumstances if you are not black, that is, or a woman, or were propertyless.  Other than that, they at least got us started.  It took a great Civil War to correct their mistakes.  This was a great wreck that killed 600,000 people and stalled the broken country. 

We jump-started the country all over again after the Civil War using a new constitution modeled after Abraham Lincoln's Gettysburg Address:  government of the people, by the people, for the people.  After that, we started focusing on people more than property.  People owned property, not the other way around, any more, as in Version 1.0.  That's what Amendments 13, 14, 15, are all about, especially liberty, equality, and due process of law, just a few words that need a lot of filling in, and who do you think gets to do the filling in?

So today we fight over the meaning of those words and who gets to decide what they mean; hence the confirmation battles of the recent past and, unless I miss an easy guess, the immediate future.  Because we don't trust God to write our laws.  We have to do it for ourselves, just as our grandkids will have to do for themselves.  Our Constitution is how we deal with change.  The Supreme Court is our regulating mechanism.  If things get far enough out of kilter, there is the formal Amendment Process itself, something rarely resorted to, because usually unsuccessful, for good reason.

A useful exercise, a mind game of sorts, is to imagine, when considering a Constitutional Law issue, what your position would be if you wore different hats, had different stakes.  The obvious examples are the plaintiff and defendant.  Then you might be a legislator, or the president, or a Supreme Court justice.  You'll get different results depending on which hat you have on. 

The litigant sees only his or her purse or sense of right and wrong.

The legislator sees power issues.

The president says, "Hey, I need to protect the country; that's why the people voted me into office; I intend to carry out my duties in good faith, now."

The Supreme Court justice says, "Yes, and we respect that, but after this storm is over, we still need to have a country that sails on an even keel, so you can't do that, or you'll tip over the ship."

The job of the Supreme Court is to act as the more contemplative body, the one that is insulated from the storm, the way Ulysses was lashed to the mast in passing the Sirens' Song, so he wouldn't be distracted from the main goal of the voyage, getting home.  The SC is supposed to be good at helping us keep our eye on the main goal, getting home.  It is supposed to take the higher, longer, 'national' view, not the local or parochial view.  So much of the time, this view involves questions of national power, not the particular litigants' interests.  Sorry about that, but the Supreme Court is the last place you want to look to for vindication of your individual rights.  Yet, it is there and we do resort to it, because we must.  The disappointment factor, meaning the risk of disappointment, is SO high.  When the rest of the country ignored them, or worse, this is where those fighting racial injustice went.  It was their only hope.  It came through, in Brown v. Board..  Recently something similar occurred regarding gays, in Lawrence v. Texas.  Maybe it will come through for you, too, some day.  Keep pitching.

 

CHANGE OVER TIME

Charles Lane of the Washington Post writes about Justice Anthony M. Kennedy's switch in vote, outlawing the death penalty for juveniles in last week's Roper v. Simmons case, to the disappointment of Justice Scalia, whom he joined in upholding the death penalty for juveniles in 1989.  Why the switch?

Justice Kennedy also switched position in  Planned Parenthood of S.E. PA v. Casey in 1982.  He was expected to be against the woman's right to choose to have an abortion, a constitutional right first recognized by the Court in Roe v. Wade (1973).  But he voted to preserve the right.

Justice Scalia, as might be expected, wrote pointedly in dissent in the Ropers case, observing how strange it was that an unnamed justice could one day vote to uphold the death penalty and later vote against it.  What kind of constitution is this, he wonders.  Or is it just a lawyer changing his mind?

Justice Stevens picks up Justice Scalia's gauntlet, according to Charles Lane's article, observing in return that if the Constitution was not read as changing, it would be constitutional to execute a seven-year-old.

The Constitution, according to Justice Stevens, has been subject to change ever since Chief Justice John Marshall breathed life into it over 200 years ago.

Three cheers for John Paul Stevens, 84, one of the most independent-minded sonuvaguns ever to serve on the high court.  How independent?  He feels it his duty to write a separate opinion in a great many cases.  They pay him to use his independent judgment and that's how he proves that he earns his salary.  No "me-tooing" for Justice Stevens.

He dissented in the 1989 case and has now seen the tables turned on Justice Scalia.

It must be neat to come up winners in a death penalty case, wouldn't you think? Meanwhile, in the interim, probably only a few juveniles have fried for their stupid, evil, youthful mistakes in killing people.

Read the Lane article for some insight into the reasons that a justice might change views over the course of sixteen years or so.

One of my close friends is a retired prosecuting attorney who asked juries to return the death penalty, and had his request granted, several times.  I was surprised over lunch one day, when several of us former prosecutors were discussing the subject, to find this friend acknowledging that if it were his choice, he'd prefer to see the death penalty eliminated. His reasons were less important to me than the fact that he'd said it.  As best I recall, he thought the death penalty deterred no one, operated capriciously, and took so long to impose, at such cost in time, effort and emotion for all concerned, that the game wasn't worth the candle, in effect.  Made sense to me.  Especially coming from him.

This either fits the theory that people change over time, or that we're complex beasts, who can go either way on a lot of subjects depending on how we feel at the moment.  Lunch-talk is one thing.  Prosecuting murders is another.

John Hinderaker at the Weekly Standard has a great line about Justice Kennedy's switch in time that saved seventy, the number of juvenile killers on death row, to the effect that he "changed his mind and, amazingly, found that the Constitution had changed, too!"

I thought we were supposed to be government of laws and not men, Hinderaker fumes.

See, it's like this, John.  Unless you have de Lawd carving the tablets in stone, it's up to us, man and woman, to do the best we can.  We make our own damn laws.  It's our responsibility, and up to us.  Since we're just dumb people, after all, we have to change our minds from time to time.  Because we make mistakes and it takes us awhile first to figure out what they are, and then to get around to making the change, because a lot of folks don't like change, and even if they're willing to put up with it, want slooow change, not fast.  Sometimes they even think God ordained what they've become comfortable with.  God gets blamed for a lot of things She's not responsible for.

We say, "The Devil made me do it," when we get caught.  I always liked that one.

Along with, "Who you gonna believe?  Me or your lying eyes?!"  Said by the denying man, caught by his wife, in bed with another woman.

What about starry decisis?  Doesn't that count for anything?

It counts a lot in the eyes of the lower courts.

But it's a license to steal in the Top Court.  It all depends on how the stars line up!

The justices are the only judges in the nation not bound by stare decisis, the idea that if the law was this yesterday, we should be able to rely on it today, other things being equal.

Other things are never exactly equal.

There's an even bigger principle, known as:  "That was then, this is now."

Today counts for more than yesterday.

People change their mind. 

They are capable of growing. 

Some, anyway.  Not Scalia.  Not Rehnquist. 

Kennedy is capable of learning. 

Scalia, Rehnquist, and Thomas have minds like a closed race-course.  They never seem able to get off the circuit, always chasing their tails.

Kennedy is a wilderness ranger.  He can climb mountains and see from peaks, blazing his own trail if necessary.  I wonder what he uses for a compass, or is he just finding his way, the best he can, with no compass, no GPS device, the way we did for so long before those gadgets arrived, relying solely on some Pole Star.

What is Justice Kennedy's Pole Star, I wonder?

"Do unto others...?"

That's not a bad Pole Star.

What makes the Ropers decision so stark, so bold, is that the juvenile planned in advance to burglarize and then murder someone mainly for the hell of it (he tied her up and then threw her off a bridge into a river, where she drowned), specifically believing he could literally get away with murder in the sense that he thought he could not be executed because he was a juvenile.

He literally challenged the Supreme Court to kill him, who deserved killing, perhaps, for killing a person who did not deserve to be killed, and he won.  That's got to upset a few people.

But look at the paradox, signalled by the "perhaps," supra.

Doesn't this show the utter juvenility of the crime?

Would any mature person with half a brain have done this?  Most prisoners of the state wouldn't do something so utterly senseless.

Doesn't this make the point of the majority of the Court, that we make a distinction between the idiocy of juveniles and the idiocy of adults, and this is why we draw lines, of which 18 happens to be it for a lot of important things in our society, which depends on at least some line-drawing?

Doesn't this also show the utter bankruptcy of the notion that the death penalty is a deterrent?

No, because this kid thought he wouldn't die.

What about life in prison for this thrill killing?

Wasn't that a deterrent?  Not in this case.

Do you think that if there were a viable death penalty, this kid would have been deterred?  Maybe.  Maybe not.  We'll never know.  But I doubt it.

My idea is that we didn't spare this fool for his sake.  The justification for sparing his life has nothing to do with his undeserving ass.  We spare him for our own sake.  We don't want idiots putting us in the position of having to kill kids.  This goes so against our grain.  Our lives are dedicated to bringing people along in society, not killing them. 

Why do you think it is so difficult to train us to kill in the military?  And then when our soldiers return after killing, they're often so messed up over what they've had to do in the name of fighting for the country.  While psyched up to kill, they killed. 

But back in the world, in peacetime, American soldiers find it difficult to reconcile what they've had to do with what they've been taught all their lives, that to live in society you try hard not to hurt other people, even the bad guys.  Look at cops.  Most cops avoid using excessive force and avoid using their service weapons to kill people, sparing everyone a lot of grief.

Most of us manage to live in society on terms that don't put us at risk of life in prison.  Do we behave ourselves because we fear prison so much, or because we've internalized some notion that there's a more-or-less right way to live?   It's the good road of the righteous, as opposed to the road to hell.  For most people, it isn't even a viable choice, most of the time, I suspect.

The frustration exhibited by some is shown by what they are left with to rail about, such as reliance "foreign law."  In a country that was founded on foreign law.

I hate to see grown men gnashing their teeth, to no avail, don't you?

***

To see a summary of juvenile executions on this continent since 1608, check the report by Stuart Banner, UCLA law professor and author of  The Death Penalty: An American History, on the continuation below from the New York Times, 3/06/05: