Thursday, June 26, 2008

Justice Kennedy's Constitution

Small miracle.
The Second Amendment still lives, but only because the Supreme Court says that it does. This decision was five votes to four. Had Bill Clinton gotten another appointment to the Supreme Court, or if Justice Kennedy had decided to be liberal this morning, the District of Columbia could have quite legally banned ownership of handguns or any other type of weapon, whatever the Constitution says.
As it often is, yesterday at the Supreme Court was very different. Yesterday we learned that the Constitution says that the State of Louisiana could not put to death a 43 year old man who raped his 8 year old step-daughter. Too bad that the people of the State of Louisiana elected a legislature that decided that raping a child should be punishable by death. But the Supreme Court -- by five votes to four (Kennedy siding with the liberals)-- said that the Louisiana legislation violates the Constitution's ban (the Eighth Amendment) on "cruel and unusual punishment."
Now, it is a bit difficult for me to credit that the drafters of the 8th Amendment (in 1791) would have considered that hanging a 43 year old man who raped an 8 year old child by the neck until he was dead, dead, dead (or whatever they do in Louisiana) was "cruel and unusual punishment." But nobody cares what the Framers thought. The Constitution is what the Nine Kings say it is, today, and the Court's majority claims to have identified a "national consensus" that the death penalty is never acceptable for the rape of a child.
More particularly, the Constitution is what today's swing justice -- Justice Kennedy -- says it is. Sure, I liked today's decision on the right to keep and bear arms, and disapprove of yesterday's decision on cruel and unusual punishment. But is this law or politics? Today, Justice Kennedy says that the Second Amendment means we have the right to own firearms; and that the Eighth Amendment says it's cruel to kill child rapists. Recently, Justice Kennedy educated the generals and bureaucrats on their obligations while running a war. Whatever the law is today, don't hold your breath, because tomorrow, Justice Kennedy may well think differently -- and the law will thus think differently also.
This is not government by law. This is not a republic. It isn't even a monarchy. This is government by whim of a robed clerisy who rule over us not because of election, but because they went to elite law schools. Instead of a republic, we are ruled by a theocracy of judges primarily concerned with increasing their own collective power.
In any society with a written Constitution, or that conducts itself based on written laws, it is necessary to have a court, or an entity, that can tell us what the law means. This is the purpose of judicial review in our system, and the Supreme Court is the last stop. But the tail is now wagging the dog. The Supreme Court enjoys construing the Constitution too much, does it too often, and has become a clear and present danger to republican institutions.


louielouie said...

i wonder if this could be the start of something, anything???

Anonymous said...

DC's back, EJ. He had some thoughts on this in response to Mark, just today. Stop by.


El Jefe Maximo said...

I don't know LL. Once the Supreme Court discovered the incorporation doctrine, and the marvelous fun of inventing new fundamental rights, I don't know if much space was left for the 10th Amendment. The rights reserved to the people and the States appear to be those that the Federal Government and the courts decide to let us have. Maybe the 10th Amendment means something, but I've never been quite sure what, and I don't think anybody else is either.

I think this resolution sounds a lot like John C. Calhoun's old doctrine of nullification, the concept that a State has the right to nullify a federal law that it deems unconstutional. Interposition is a somewhat related concept. Legally speaking, I tend to take a very dim view of these doctrines, if only because of the Supremacy Clause (Article VI, Para. 2).

Secession (cited wrongly by some as a related concept) however, is another matter. I think the Confederates had the better of that legal argument. If you're going to be in the US you have to obey Federal laws and the Federal courts. However, I think even a cursory historical analysis of how the Constitution was formed, what the framers thought they were doing drafting it, and what the States thought they were doing ratifying it shows that the States are sovereign, and have the legal right to withdraw from the Union, although not to nullify the Union's laws while in it. (The Civil War settled the power of the States to secede, not the question of their legal right to do so).

Anonymous said...

The 10th Amendment probably has no legal teeth.

The only decision in re the 10th I know of, that clarifies its meaning (somewhat) is Kansas v. Colorado (1907) can probably find commentary on Google.

The incidentals aren't important (the case dealt with water rights)..Justice Brewer ruled that the national government is a government of enumerated powers, with some Constitutional distribution of powers between the state and national governments.

The 10th amendment merely affirms this distribution, and doesn't divide ALL powers between the national and state governments, but affirms that final authority on all issues rests with "the people" through the amendment process. That is, where disputes arise, the people of the states are responsible for solving them.

It's somewhat vague. Since We The People do ordain and establish...and not We The States do ordain and establish...the people of all the states retain all power, at least theoretically.


El Jefe Maximo said...

I think I read the case you talk about in law school.

Look up the ratification documents sometime. . .several of the states expressed reservations. The whole sense of the documents is a group of sovereign bodies delegating. There is a good law review article on the whole subject in the Stetson Law Review from the early 80's, I'd blog on this if it was anything but a weird curiousity at this date anyway.

"We the States..." You're right of course, but it's funny. Not even as a fanatic a bunch of states righters as the Confederates expressed it that way: when they drew their own Constitution in 1861, (very similar to the US document), they left it "we the people" although they made sure to make it clear that the states were sovereign "we the people....each state acting in its sovereign and independent capacity."

But it's pinhead angels at this point.