Category Archives: Law: Constitutional Law

At first blush, the proposal at davidshcess.com [seen via Ascription is an Anathema to any Enthusiasm] sounds so sensible: Tired of originalists like Justice Scalia going on about how the Eighth Amendment only prohibits punishments that were cruel and unusual in 1791, and hence the death penalty (and maybe chopping off ears, and certainly stockading) are constitutional today? Want to do something about them? Just introduce a new constitutional amendment re-enacting the Eighth. No one would dare vote against it (are you for cruel and unusual punishment?) and it would re-set the clock to modern times (are you for cutting off ears?).

But in fact, it's a rotten idea. It surrenders a key point of principle. I am, in the main, relatively sympathetic to at least a weak form of originalism. If words don't have meanings that we can collectively ascribe to them, with some consistency over time, then constitutional government is a bit of a farce. I'd like to avoid that, for all that Senators Frist and Santorum are determined to make it difficult.

But in the originalist constitution I read, there's not only play in the joints, but in some cases an invitation to evolve. It's not everywhere. The requirement that the President be 35 isn't a requirement that s/he have the relative wisdom and maturity of a 35 year old in 1783, or have lived an equivalent fraction of the average life expectancy. It's that the person be 35. On the other hand, some parts of the Constitution do read like invitations to change with the times. ('It is a Constitution we are expounding here' after all.) And the cruel and unusual clause is definitely one of them. So there's no need to re-set the clock on cruelty — it's always ticking. And it would be wrong to provide such luscious ammunition to those who suggest otherwise.

The Bolton Affair, which until now was just an engrossing political slug-fest in which the Vice-President gambled his boss's political future has suddenly lurched into a Constitutional crisis.

The administration has put so many chips on the table for this one that losing would not only dent, but actually detonate, its image of invulnerability. Once blood is in the water the legislative sharks start to circle, and the administration's ability to cram legislation down congress's throat becomes reduced or non-existent. So far, that's just politics as usual. (Clinton's moment of defeat was the first week of his first Presidency, when he went back on his promise to let gays serve openly in the military. Everyone on the Hill understood that if Clinton would back down on a campaign promise when confronted by people sworn to obey him, he could be rolled like a drunk when it came to dealing with legislators with their own agendas. Health care died in the Oval Office before the Clinton administration was two weeks old.)

What is not politics as usual is that the Bush administration has suddenly escalated the Bolton stakes yet again — this time to a constitutional crisis level. Bolton is suspected of using NSA intercepts to spy on his colleagues or to undermine then-Secretary of State Powell. Nothing has been proved. The chair of the Foreign Relations Committee and Democratic Senators have asked to see copies of the same NSA intercepts that Bolton (a mid level appointee) was allowed to see, in order for the Senate to weigh those charges.

Now the administration has said Senators with a constitutional advise and consent duty can't have the same access to NSA intercepts that third-level state department people get. As Steve Clemons says, that changes everything.

It's possible there may be nothing in the intercepts. It would be classic Rove to build them up in the hopes that they become the sole issue — distracting everyone from the out-of-control maniac who allegedly ran down a Moscow hotel room chasing a low-level bureaucrat for the crime of being honest, banging her door and howling like a loon, and then later spending days trying to destroy her career. Build the intercepts up as the only issue, then give in, say that the administration went the 'extra mile' and see! Bolton has been 'cleared'! That would be classic Rove indeed.

So it's important not to let the intercepts become the entire show in this three-ring circus. But it's also important that the Senate not set a precedent that it can be treated like a potted plant.

It is time, again, to praise Is That Legal?

Eric Muller is a public intellectual in the best sense: engaged with real things. I especially recommend the series of posts on under-the-radar Christian propaganda in public schools that not-very-subtly attacks other religions — and is required (or extra credit) reading. The stuff is published and promoted by the Renaissance Learning company, and adopted by schools either because they share the worldview or, more likely, because it comes with convenient little tests that the elementary students can take. I hope Eric will organize these posts onto a separate, easily indexed free-standing page, but until then, if you have a child in public school, or care about the separation of church and state, see Part 1, Part 2, and Part 3.

And watch out for “Escape from Egypt” or “Journey to Japan” in your elementary school library.

PS. Eric's more recent series of posts attempting to correct rapidly propagating untruths about an element of the the new Pope's biography are good too.

Eleventh Circuit decision refusing on a 2-1 vote to overturn the district court's denial of a TRO.

SCOTUSblog has the details, Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint,

Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment, and (in Count Eight) what might be called a “converse Cruzan” claim, i.e., a claim that (i) there is no clear and convincing evidence that Ms. Schiavo would have wished that nutrition be withdrawn, and therefore (ii) Florida denied Schiavo due process by permitting Schiavo's legal guardian to withdraw food and water from a patient in a persistent vegetative state. (In Cruzan itself, the holding was that the state does not violate due process by prohibiting the withdrawal of life-saving interventions absent such clear and convincing evidence. The Court did not hold, however, that a state is constitutionally obligated to prevent the guardian from choosing such withdrawal in the absence of the clear and convincing evidence of the patient's desire to withdraw treatment. Indeed, Cruzan did not suggest any minimum level of protection a state must give to the interest in life (against the interest in bodily integrity)—that decision merely says that the state doesn't exceed the maximum allowable level of state-law restriction when it demands clear and convincing evidence that the individual would have preferred death to indefinite prolongation of the permanent vegetative state. Does anyone know of any such “converse Cruzan” claim in another case?)