Constitutional Roulette

...We tried to give the prosecutor's office some money in order to hire experts to William Tucker is The American Spectator's New York correspondent...

...The "will" or "intent" behind that language is necessarily a collective construct, a metaphorical "will" of a metaphorical author, which may not coincide in its entirety with the intentions or expectations of any one participant...

...But that is not the argument offered by most defenders of judicial activism, nor even by Justices Brennan and Stevens in their responses to Attorney General Meese...

...We feel we got justice," said the father of one of the boys, who paid $600 in attorney's fees—about the same as the costs paid by the defense...

...Many provisions of the Constitution are already treated in this way without stirring much objection...

...But it would be hard to say that either side has scored a decisive blow since then...

...He said the boys attacked him and he was forced to kill both in self-defense...

...The federal judiciary is honeycombed with judges who blatantly sympathize with criminals—and it only takes one of them to overturn the decision reached by a state's entire judicial apparatus...

...16 THE AMERICAN SPECTATOR MAY 1986...

...Where judges can do no better than politicians, they ought to confess their incapacity and leave such decisions to actual elected officials...

...Even if law-making were entrusted to an individual legislator, like a military commander in a district under martial law, we would still want to distinguish the meaning of the laws he decreed from his own personal will...

...Rather, defenders of the Court have protested that the intent of the Constitution's Framers is simply too uncertain to provide authoritative limits on judicial decision-making...

...But it is more to the point to notice that James Madison, who kept the most detailed notes of the proceedings, kept them carefully concealed for some fifty years after the event...

...Does this understanding leave the courts free to construe laws and constitutional provisions according to their own tastes...

...In part, this reticence about looking behind statutory or constitutional language was an acknowledgment of the artificial nature of legislative or constitutional assemblies, which can rarely have a single or simple intention in the manner of an individual human being...

...But the Constitution cannot be binding law and constitutional decisions cannot be legitimate judicial acts if the Supreme Court allows itself to pick and choose conflicting interpretations from one case to the next, according to its own sense of convenience...

...We believe we got a little more attention than we would have had with only the county prosecutor...

...The reason we reserve law-making to multiple, collective bodies in the first place is to emphasize that law should have a rather impersonal, abstract—a literally disembodied—character...

...The same spirit characterized the Supreme Court's approach to the post-Civil War amendments in the latter part of the nineteenth century...

...In earliertimes, this would not even have been viewed as a concession...

...The lawyers pursuing this argument—which seems to me as compelling and powerful as the argument for color-blindness in public policy—had better not try to rest their argument on specific evidence of the Framers' intent, however...

...Whatever the authors of the First Amendment intended in prohibiting any "establishment of religion," for example, there is no plausible construction of the phrase which can simultaneously encompass recent Court decisions allowing government to pay ordained clergymen to deliver prayers at legislative sessions, while forbidding government to pay hourly compensation to parochial school teachers for grading state-required competency tests in secular subjects...

...Meese argued (in a speech reprinted in the winter Policy Review) that the intentions of the Framers were well documented in their writings and not, therefore, so difficult to pin down...

...Because the murder was "domestic" in nature, the district attorney wasn't very interested in prosecuting and was ready to accept a plea bargain...

...At one point they agreed to make amends...

...Anyone who studies the justice system very long cannot help but be impressed with the remarkable institutional momentum that now lies on the side of criminal defendants...

...In the first place, we are entitled to demand that each disputed provision in the Constitution be interpreted in a manner that harmonizes with the whole...

...The actual words of the Fourteenth Amendment are the law of theland and not the glosses that the framers tried to put on them...

...It was off to a promising start last summer when Justices Brennan and Stevens delivered bristling defenses to the broadside at-tacks of Attorney General Meese...

...The congressional debates over the Fourteenth and Fifteenth Amendments were published in complete detail at the 14 THE AMERICAN SPECTATOR MAY 1986 outset but never cited in subsequent Court decisions...

...72, where Hamilton claimed that Senate consent would be necessary for the President to remove any executive official (as is now the case only for regulatory commissioners...

...Of course, the justices of the Court may come to see that they—or their predecessors—have made a mistake in a past construction of some provision and in that case it is perfectly appropriate for the Court to confess the error and reinstate the correct interpretation...

...It is certainly important to criticize and struggle against the effects of that perspective in constitutional law...

...Does it mean that the Attorney General has no basis for complaint when the Supreme Court reads the open language of the Constitution as a shorthand designation for the con-temporary liberal agenda...

...There are many principles in the Constitution—as in public life generally—that we want to ac-knowledge but which are not feasibly or appropriately translated into binding legal norms...

...THE AMERICAN SPECTATOR MAY 1986 15 briefed on modern conditions and established modern practices before entering the debate...

...A few orbiting law professors, it is true, have argued over the past decade that the actual language of the Constitution has no bearing at all on the judicial duty to serve justice—or social justice—in constitutional decisions...

...Even in decisions interpreting ordinary statutes, it was not, in fact, until the 1920s and 1930s that courts began, as a routine matter, to invoke the records of legislative debates to explain and justify their interpretations...

...In the end, a conservative version of the Constitution will only seem compelling to a country that shares a conservative outlook on policy and politics...

...Their bodies were found on an isolated country road...

...Four hours later the man turned himself in at the police station...

...Rather, as is so often the case in con-temporary political discussion, the liberals seem to be losing the debate over the Constitution, but the conservatives seem incapable of winning it...

...This should not, in fact, be a very troubling concession for the Attorney General, for all that it has been much abused in recent decades...

...The prohibition on "cruel and unusual punishments" in the Bill of Rights may, for example, be rather ambiguous in itself...

...It may not have been at all inappropriate for the Court to acknowledge after the New Deal that such line-drawing was beyond its capacity in the complex conditions of modern industrial economy...

...Or else it reveals that the issues have become too contentious and confused for the judges to agree among themselves on any consistent rules of decision, so the results shift from case to case with the shifting of political coalitions on the Court...

...On the whole, voters and their elected representatives have in-deed displayed a good deal more sense than the Supreme Court in recent decades...

...But such appeals to historical research will either prove too much or prove scarcely anything at all...

...When the same Bill of Rights lays down three different procedural safeguards for capital trials, it is impossible to argue that capital punishment is plausibly embraced in the prohibition against "cruel and unusual punishment...

...And here is where the Attorney General and many of his champions have been caught in their own catch phrases...

...On the contrary, the sponsors of the Fourteenth Amendment in Congress explicitly denied that it would prohibit separate schools for blacks, and the same Congress that passed the Fourteenth Amendment actually proceeded to establish racially segregated public schools in the District of Columbia...

...Herrin was also "adopted" by a Catholic nun, who attended the en-tire trial, rushing up to embrace Herrin in front of the jury at every opportunity...

...Thus it is true, as the Attorney General has noted, that we now have rather detailed records and minutes of the original debates at the Constitutional Convention of 1787...

...On the contrary, the judges acted with remarkable self-confidence in construing the bare words of the text...

...An appeal on the grounds that private prosecutions are unconstitutional was rejected—as it has been many times in both state and federal courts...

...But it is well to remember that that perspective has been very influential in the judiciary because very influential in elite opinion...

...The boys' parents didn't buy the story...

...But if conservatives want the Court to retain its powers while changing its doctrines, it will not do to thump about "original intent...

...At the trial, Herrin received so much favorable testimony from Yale administrators that Garland later agonized, "It was as if he were applying for a job, rather than on trial for murder...

...But Marshall inferred this power from the text and structure of the Constitution, without ever citing specific statements of the Framers on its behalf, and even the critics of Marshall's reasoning (like President Jefferson) did not try to refute it by invoking specific statements from the Framers on the other side...

...As a slogan, Mr...

...This seems to make the whole debate turn on which side captures the better historians...

...For decades, the Supreme Court has viewed the Constitution through the strange perspective of con-temporary liberalism—a perspective that tends to see all private property as potentially public and all public morality as properly private...

...offer countervailing testimony, but found it was illegal," said Paul Garland, himself an attorney...

...No doubt, that is the actual conviction of judges who take on the management of school districts or discover a right to abortion in the Constitution...

...The older man took them for a ride to settle the terms...

...Where the Court behaves in this way, it implicitly acknowledges its own belief that the subject cannot be handled by standing rules but only by flexible, political management...

...It would not be difficult, for example, to show by this method that Brown v. Board was wrongly decided, rather than "restoring the original principle of the Constitution to constitutional law," as Mr...

...The Warren Court decisions have had an enormous impact...

...Herrin had readily admitted the crime when he turned himself in seven hours later—and even became extremely upset when he learned Bonnie wasn't yet dead...

...But they are happy enough to join the Attorney General in rhetorical salutes to Jeremy Rabkin is assistant professor of government at Cornell University...

...In holding racial segregation of public schools in violation of the Fourteenth Amendment, the Supreme Court was not, in fact, following the expressed intention of those who wrote that amendment...

...Almost no one will de-fend the proposition that judges should be free to make up their standards as they go along—if that is the alternative to "original intent...

...But this is not just a practical difficulty for judicial inquiries about in-tent...

...If Mr...

...But then the Garlands confronted the justice system...

...By all means, then, let our pugnacious Attorney General keep up the fight...

...Meanwhile, the defense almost prevented Joan Garland from telling the jury how she found her daughter's battered body because the testimony would be "too emotional...

...Meese's demand for a jurisprudence of "original intent" goes only so far...

...It is hardly obvious from the text of the Constitution, however, which principles or provisions can or should be translated into specific rules and en-forced by the courts...

...The justices of the Supreme Court, for the most part, are harassed and befuddled old men, not much given to serious or original thinking...

...But let him now get down to the substance of his dispute with contemporary jurisprudence...

...If the Constitution is to be treated as a law, it must, in principle, be susceptible of fairly precise and controlling construction and that correct construction must be binding on the Supreme Court itself as much as on anyone else...

...Chief Justice Marshall's decision in Marbury v. Madison, for example, is famous—and was at the outset rather controversial—for asserting the power of judges to pronounce acts of Congress invalid and nonbinding if they transgressed the terms of the Constitution...

...And in truth what is wrong with the Court's solicitude for marching Nazis and brazen pornographers, its procedural obstructions of criminal justice and its enthusiasm for racial engineering schemes, its indulgence of confiscatory or special interest regulation and its op-position to any government protection of unborn babies—what is wrong with this bizarre set of policies is hardly en-compassed in the claim that they depart from "original intent...

...Majorities in both houses of Congress are required to make a law, and the additional concurrence of three-quarters of the states is required to make a constitutional amendment...

...Similarly the Justice Department is now pressing the argument that in-dependent regulatory commissions are unconstitutional, because they improperly separate executive functions from presidential control...

...With Valentine sitting at the prosecutor's table assisting the district attorney, the man was convicted of first-degree murder and sentenced to life in prison...

...Nor did Marshall (or his critics, for that matter) pause over the awkward fact that the statute that was held to conflict with the Constitution in Marbury had actually been drafted and uniformly supported by members of the first Congress who previously participated, themselves, at the Constitutional Convention...

...Our basic conceptions of law, then, require us to acknowledge that the meaning of a law is not simply what the lawmaker wants it to mean, but what a detached judge can reasonably construe the words to mean...

...It is, after all, the Constitution that is the supreme law of the land and not the glosses placed on it at any one time by a court...

...When Bonnie Garland was hammered to death by her boyfriend Richard Herrin in the 1982 "Yale Murder," her parents, Paul and Joan Garland, thought they were facing an open-and-shut case...

...His essays on "Constitutional Opinions" appear periodically in these pages...

...Nineteenth-century courts acted as if they had a clear grasp on such open-ended concepts as legitimate public purposes in applying constitutional provisions like the prohibition on taking private property except for public uses...

...The inconclusiveness of the debate, it seems to me, reflects the inadequacy of the terms in which it has been framed by the Attorney General's speeches...

...there is no rule that can plausibly embrace recent decisions allowing government to loan public school textbooks to parochial schools but not maps or audio-visual equipment...

...For better or worse, changed conditions often mean changed understandings of basic concepts or their implications...

...Hardly...

...Secondly, we are entitled to demand consistency in judicial interpretations of the Constitution...

...The exclusionary rules to the Fourth and Fifth Amendments give defense attorneys a lethal weapon with which to blow apart the most airtight cases...

...And no Supreme Court justice professed himself helpless to determine the meaning of constitutional provisions in the interim...

...Conservatives should stand for saner interpretations of the Constitution and not merely for older ones...

...They hired Tim Valentine—now a congressman—to act as their private prosecutor, under an old North Carolina statute that allows the victims of crimes to hire private attorneys to argue their cases...

...He will be out of jail less than ten years after the killing...

...These majorities do not enact the speeches of individual representatives or the reports of individual committees but specific statutory or constitutional provisions...

...But one must at least abandon the simple-minded notion that the meaning of a constitutional provision can be determined by historical evidence about the specific intentions of its authors...

...Considered in this light, it is not at all bizarre to claim that the Fourteenth Amendment's guarantee of "equal protection of the laws" may forbid segregated schools even if the legislators who adopted that language in 1868 tried to deny it would mean this...

...Abstract appeals to "original intent" are not going to bring the Court back to its senses...

...Meese's Justice Department wants to persuade the Court to hold race-conscious affirmative action in violation of the Constitution, for example, government lawyers had better not rely on the records of the original debates on the Fourteenth Amendment—which offer a great deal of embarrassing evidence to the contrary about "original intent...

...In Nash County, North Carolina, two teenagers had been harassing an older man in the neighborhood, shooting up his truck...

...It would be hard to demonstrate that the country would suffer grievous harm if the Supreme Court now disavowed—or was forced to abandon—its power to invalidate statutes conflicting with its own view of the Constitution...

...When public pressures finally forced a trial, the defense introduced an elaborate insanity plea, arguing that Herrin's obsession for Bonnie constituted a "diminished capacity...

...In the era of grand scale welfare state subsidies and comprehensive urban renewal pro-grams, we are bound to find it very much harder to draw such lines...

...A very strong case can be made for the proposition that this is now our general condition—that there is no longer enough agreement on the core meaning or the compelling implications of most constitutional provisions for constitutional review by the courts to be an acceptable exercise of authority...

...That is a more honest stand in contemporary debates on the Constitution, as well as a more compelling one...

...Meese has contended...

...The Supreme Court was preoccupied for several decades before 1937 with the effort to distinguish the "interstate commerce" which Congress has the power to regulate under the Constitution from the purely local commerce which Congress may not constitutionally regulate...

...In responding to the protests of Brennan and Stevens, Mr...

...Herrin was convicted only of second-degree manslaughter...

...Nothing better illustrates the fraudulence of Justice Brennan's judicial outlook than his insistence—reiterated in his speech last summer, replying to the Attorney General—that the Supreme Court should regard any imposition of capital punishment as a violation of the Constitution...

...Should court decisions be faithful to the intent of the Constitution...

...If they do, someone may embarrass them with the passage in The Federalist No...

...William Tucker PRIVATE PROSECUTIONS Restoring the balance to criminal justice...

...the genius of the Founding Fathers and the enduring relevance of the Constitution they bequeathed us...

...It is still possible, I believe, to defend the result in Brown without abandoning judicial fidelity to the constitutional text...

...Almost every-one seemed to take it for granted that the constitutional text must speak for itself and not be separately spoken for by its individual authors...

...We would think it lawless and unjust if he then arrested someone for violating the order by remaining on the streets in late afternoon—and our indignation would hardly be altered by evidence that the commander had earlier told his lieutenants that by "nightfall" he really meant two hours before sunset...

...I doubt that such appeals will makemuch impression in themselves on anyone's perspective on "due process" or "equal protection" or other grand principles of the Constitution...

...Suppose, for ex-ample, the commander issued a curfew order requiring all civilians to be off the streets by nightfall...

...There may be no version of the distinction between "public uses" and purely private concerns which even the generation of the Founders could be persuaded to insist upon if they were miraculously resurrected and fully The liberals seem to be losing the debate over the Constitution, but the conservatives seem incapable of winning it...

...The Constitution explicitly gives Congress the power to declare war, for example, but the Supreme Court has consistently refused to allow suits requiring the courts to distinguish "war" from lesser military engagements that may not re-quire a direct authorizing declaration from Congress...