Students come up with the most interesting questions, showing that the wheels are turning. The course is having an effect, despite my efforts.
One student wondered whether the Three-Strikes law is constitutional.
That's the first and most important step, asking that critical question: Is This Constitutional?
What mental checklist do we consult to get started answering the "Izzit Constitutional?" question?
We might start in this case by asking whether the state has the power to pass such a law?
What kind of law?
Criminal, clearly, and states have been passing criminal laws forever; it's one big reason we have a government, probably the second after providing security from outside threats. Inside threats.
What power is it? It's called the police power, the one NOT delegated to the new national government in 1787 at the time of the Founding.
Reserved to the states, the police power includes legislation designed to protect public Health, Safety, Welfare, & Morals.
Three-Strikes seems invulnerable on that count.
But we're not done.
Suppose the legislation has a crazy effect, such as locking in prison forever someone who steals a slice of pizza or a few video tapes shoplifted from a store? Shades of Victor Hugo's Jean Valjean, where Insp. Javert hounds a man whose original offense was to steal a loaf of bread.
Does that make 3-strikes unconstitutional?
The basic rule is that if legislation is viewed as being sufficiently capricious in its effects, it suffers the Con-Law sin of being Arbitrary and Capricious, which is code for 'Irrational,' which translates to crazy, nuts.
An example would be highway safety legislation that had the perverse effect of increasing highway mileage, which is the main ingredient, statistically, for increasing highway accidents. When a statute is thus counter-productive, where the means do not promote the ends, but counter them, that statute is on the short list for being declared unconstitutional.
But this is not some ordinary guy being put away forever, it's someone with a history of serious or violent felony convictions, a repeat offender.
Can society protect itself against repeat offenders by saying, in effect, Enuf's enuf, and locking them up and throwing the key away at long last?
Muddies the picture, doesn't it?
Maybe 3-strikes is questionable policy but not so irrational as to be unconstitutional. Maybe it's up to the legislature to cure, not the courts. That's why 3-strikes is undergoing voter review this election, i.e. next Tuesday.
And we go around and around, back and forth on the "Izzit Constitutional" question.
How much irrationality is allowed?
Is there enough to tip the statute over?
Perhaps, provided the challenge can overcome the zeitgeist, a Con-Law idea meaning, "Please don't ask us (the Supremes) to decide counter to the spirit of the times.
So, if this is a bad season for striking down anti-crime legislation, don't expect a lot of sympathy when knocking on the door of the current court.
Justice Clarence Thomas, commenting on the health of Chief Justice William Rehnquist, 80, who underwent a tracheotomy earlier this week, said he was expected back soon, "as unforgiving as ever."
That does sum up the Chief, doesn't it.
***
Another student, Korea born, advised that originally, when she read decisions of the Supreme Court, she felt as though she were being presented the revealed word of God, the truth at last.
I guess we all start out that way, and then something happens.
We start reading the dissents, for one thing.
Then we check the history and context.
She had presented the famous Lochner Bakery case (1905) that characterized an era which didn't end until 1937 and, having run a couple of businesses herself, saw no problem with the court striking laws that interfered with the profitable running of one's business.
Lots of business owner's may feel that way, although I suppose many today accept without much griping that workers have to be treated right in terms of minimum wage, safe work-place, no child labor, 8-hour day, five day week, overtime pay for overtime work, workers compensation for job related injuries, and the like.
But in 1905 those ideas seemed to be socialistic, requiring management, capital, to pay for all these left-wing, fuzzy-headed, bottomless pit, expenditures to benefit the great-unwashed of immigrant cultures that had, as yet, no standing among the establishment here, except to the extent they were willing to work for a pittance uncomplainingly.
So we had a class discussion complete with the whiteboard loaded with explanatory notes helping to provide context.
A single working person's freedom to sell his labor didn't mean much against the Andrew Carnegie's and John D. Rockefellers of the world at the turn of the last century.
Then the student made the observation that gives this post a point. In some countries with which she was familiar in Asia, she said, the expectation was that the individual was subordinate to the society and was expected to sacrifice, and be sacrificed, for the benefit of the greater good of his organization, company, plant, society, and culture.
In the U.S., by contrast, we value the individual to a much greater extent than that, and in fact expect the organization to bend to the needs of the individual in many instances.
This may be why Chief Rehnquist seems so unforgiving, even to a friendly colleague.
Rehnquist is SUCH a government man, deciding SO many cases in favor of the government as opposed to the individual, that it seems he would be right at home in Asia, where that's the rule. He almost seems left behind in an America where the promotion of individual rights over the past half-century has become so prominent in our law. Too much, he might say.
The conversation ended with the student noting that she found herself, now, looking more critically at Supreme Court decisions, and wondering what was really going on. For this, she needed context, and expressed appreciation at the bit of history we try to inject into the discussion, without which the cases are mysterious data points of no apparent significance.
I'll save for a future discussion the notion that at the Supreme Court level, law is crystalized political opinion, not to mention politics.
***
[And for the record, I've been reminded by something I later came across that the U.S. Supreme Court upheld Three Strikes, I suppose against an 8th Amendment Cruel and Unusual Punishment challenge in 2003; I wonder what other challenges failed. Perhaps I'll suggest to the student that we both ought to take a look at the decision and compare notes. Odd how you forget, in Con-Law, even cases right on point. Oh, well, onward we must press, despite the onset of the dreaded CRS disease.]
THREE STRIKES
GARY ALBERT EWING v. CALIFORNIA 538 U.S. 11 (2003) is the case in point, where the multiple loser gets caught yet again, this time stealing $1,200 worth of golf clubs from the car of a golfer like me.
Stealing golf clubs from a car trunk is a lot more serious than stealing $1,200 worth of trash, and I'm sure golfers everywhere cheered the Court's rendition of justice to this miscreant, which was to uphold imprisonment forever without surcease until death do us part.
It does remind me, however, of the old physics question, "Which is heavier, a ton of feathers or a ton of bricks?" Bricks always seemed heavier than feathers to me, I must say.
Mr. E. will certainly think twice about stealing golf clubs in the future, just as those on Death Row certainly go about hanging their heads in shame over killing people.
Execution certainly teaches them a lesson, doesn't it.
As deterrence goes, draconian remedies do seem to have a certain efficiency, I must admit.
The Con-Law issue under the 8th Amendment was whether the sentence was "grossly disproportional" to the crime.
So much depends on how you frame the issue. Here are two choices, the one argued by the defense, and the one decided by the Court.
1. (defense version): "He only stole $1,200 worth, Yer'onah, and sending him away fer life fer that is "grossly dispropotionate" to any sensible human bein.'
2. (Supreme Court version): "The real issue is whether it is "grossly disproportional" under the Eighth Amendment prohibition of cruel and unusual punishment to imprison forever a person with a long record of felony convictions who is then convicted of stealing yet again.
And the Court's answer? How about something like this:
We think not.
We think a person's criminal history is part and parcel of the severity with which his crime is viewed. Just as we cut some slack for the young first offender, we think it proper to tighten up considerably in the case of the old repeat customer.
Therefore, holds the Court, imprisonment is not constitutionally prohibited as grossly disproportionate under the Eighth Amendment. It may not be quite proportionate, but it's proportionate enough. Breyer, Stevens, Ginsburg dissenting, to their credit. Maybe one other, DNR.
I didn't see in the decision any great attention paid to whether draconian punishment is arbitrary and capricious either on its face or as applied. I did see a brief passing reference to it not being effective. Didn't slow the opinion writer down a bit.
If the Rational Basis Test applied, would the death penalty stand?
As a means to an end, how effective is the death penalty? Could, possibly, it be counter-productive? To encourage killing as a means of venting frustration? Answering murder with murder, because it makes us feel better? Even though imprisonment would make us just as safe, although we wouldn't feel better?
Who feels better? For how long? Is that the justification for the death penalty? Suppose the victim's family doesn't feel better after the execution? Was the execution a waste of electricity?
This, as you might see, becomes a very long argument in which pro-death penalty wins until the day the decision comes down from on high to the contrary.
Then it seems obvious and right and why couldn't those poor benighted people like us who still live in the Dark Ages have seen the light before we/they executed all those poor downtrodden people?
Isn't that how we regarded, and regard, to this day, slavery and slavers, you know all those nice people who owned, worked, whipped, rented out, and sold slaves? Those nice plantation owners whose parties it might've been so nice to be invited to? Kind of like being invited to Dr. Mengele's daughter's coming out party, I should expect. In Germany, extermination camps were legal, and among the ruling class, quite in favor. And maybe more than the ruling class.
Which reminds me of a story.
A DAY AT THE BEACH
The no-longer-denominational college I attended had been founded by a faith that was very strong in Germany. As a result many students living in the residence halls, as opposed to us locals, were children of German descent, including recent-immigrant families, meaning having parents who'd fought for the Third Reich during World War II.
One friend's father had been a Luftwaffe pilot who'd led the aerial invasion of Norway. Immigrated to the U.S. after the war and had become, what else, the braumeister at the local brewery.
Another's father had been a U-Boat commander.
Another broke down in tears during a discussion as she insisted that her father's outfit (he'd admittedly been an SS officer) had not committed all those terrible crimes. Those had been committed by the SD, she insisted. I guessed that's what he'd told her as we felt sad and tried to comfort her.
Finally, one day at the beach where I worked as a lifeguard for several years, a group of friends whose parents had the misfortune to have been on the wrong side during the War, and I, were seated around a blanket on the sand, chatting away when one of the guards walked past, along the shore, in our orange tank-top-and-bottom uniform suit that showed our manly physiques off so nicely in those bygone days.
He was a strapping broad-shouldered young lifeguard, tall, erect, fit, nicely proportioned, twenty-one or so, head full of black curly hair, well-tanned. And smart. He'd hand-ground the 6" lens for the 60" telescope he'd built that was so useful for viewing the Rings of Saturn at night and bikinis at the other end of the beach during the day.
"Good looking, isn't he?" asked Georg, referring to my fellow lifeguard, chuckling, as the others got a laugh.
I didn't get the joke.
The lifeguard looked squared-away to me.
But they'd laughed.
I was missing something.
Then I got it.
As to some freckle-faced Irish kids, you know, the saying is that "He's got the map of Ireland written on his face."
Well, Louis Mandell's face just happened to bear the map of Israel.
That was the joke.
Louis was Jewish. To Georg, Mandell couldn't be good-looking.
Georg's mother was seated with us. She told us what it was like to live in Hitler-Germany as a university student in the 1930s.
In fact, she said, she'd written a dissertation on some political-economic subject and as a result had been arrested by the Nazis and thrown into one of those concentration camps.
It took months for her family to pull strings to have her released.
"That must've been terrible," I ventured, never having met a concentration camp survivor.
"It was," she said, shortly before I returned to duty, "Can you imagine being in a concentration camp with all those Jews?"
There's more to learn in school than books, and the beach is as good a university as any campus.