Did The British Really Put Child Criminals To Death?

May 21, 2010 8:05 AM

On Monday the SCOTUS said juveniles who commit crimes in which no one is killed may not be sentenced to life in prison without the possibility of parole. Thomas, ever the orginalist, apparently said they should only consider practices at the time the Bill of Rights was adopted. Stevens, however, noted people as young as 7 were put to death in the 18th century. "Knowledge accumulates," he wrote. "We learn, sometimes, from our mistakes." So, did they really put kids that young to death? Well, Probably Not. A look back at all the death sentences handed down for children under age fourteen by a well documented court in London found in every case (over 100 in all) the initial death sentence was eventually changed to transportation, imprisonment, and/or whipping. No child criminal was actually put to death.
posted by Blake (37 comments total)

But they were sentenced to death over 100 times (in what period?), huh? Yikes.
posted by grobstein at 8:11 AM on May 21, 2010

Somewhat linked to the convergence of US/UK jurisprudence, I saw this yesterday - the death penalty on trial.
posted by djgh at 8:13 AM on May 21, 2010

The Court holds today that it is “grossly disproportionate” and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide. Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition.

Is Thomas delusional? Seriously. It wouldn't have "offended the standards that prevailed at the founding" for a land owner to pull him off the bench and keep him on a chain in their backyard. His reasoning seriously blows my mind.
posted by The Straightener at 8:17 AM on May 21, 2010 [17 favorites]

So Clarence Thomas thinks he should be a field slave, then? Why am I unsurprised?
posted by Pope Guilty at 8:18 AM on May 21, 2010 [1 favorite]

If we used the "standards that prevailed at the founding," Clarence Thomas wouldn't even have been allowed in the building, much less sitting on the bench of the highest court in the United States.
posted by shen1138 at 8:19 AM on May 21, 2010 [1 favorite]

Does it strike anyone else as odd that a black man would advocate for a return to 18th century law and practice? Or, if not odd, batshitinsane? I mean...Can a person truly blind themselves so completely in order to hew to their dogma?
posted by Thorzdad at 8:19 AM on May 21, 2010

Oh, Justice Thomas. My favorite take on him is from Justice Scalia, explaining the difference between the two: “I'm a conservative, I'm a textualist, I'm an originalist, but I'm not a nut.” (source, more) Note: Scalia is in fact also a nut. Just maybe less so.
posted by Garak at 8:20 AM on May 21, 2010 [6 favorites]

This thread is useless without Dr. Pepper.
posted by Mister_A at 8:20 AM on May 21, 2010

You mean the UK justice system of the 18th century was actually more decent than Justice Thomas? What a surprise.
posted by vivelame at 8:22 AM on May 21, 2010 [1 favorite]

they should only consider practices at the time the Bill of Rights was adopted.

I hate that kind of thinking. It amounts to worship, the same thing seen in fundamentalist religion. Lacking guidance from the past, perhaps he should fall back on ethics and morality and say that killing children is uncivilized and barbaric.
posted by stbalbach at 8:24 AM on May 21, 2010 [4 favorites]

perhaps he should fall back on ethics and morality and say that killing children is uncivilized and barbaric.

Happy shall he be, that taketh and dasheth thy little ones against the stones.
posted by hangashore at 8:34 AM on May 21, 2010

Thomas would say that there is no contradiction re: slavery because of the 13th amendment. In his view, the proper political process was followed to rectify that particular injustice. It was not necessary or appropriate for the Court to ban slavery: the political process accomplished it. So in his view, the same political process should see to the prohibition of life imprisonment of juveniles for non-homicide offenses.

Thomas would argue not that it's necessarily right or just for 10 year olds to be sentenced to death but that it's simply not the Court's role to update the Constitution to modern norms. That role, in Thomas's view, is given exclusively to Congress and the amendment process.

It is possible that, were Thomas's approach followed, the gross injustices typically addressed by the Court would instead be fixed via the political process (e.g., legislation, Constitutional amendments). It is possible that social outrage would create the political will necessary for more frequent amendments to occur.

Now, this isn't to say I agree with Thomas, just to say that there is a kind of method to his madness. Personally I think that the amendment process is simply too high a barrier, so the Court has to step in to fill the gap.
posted by jedicus at 8:35 AM on May 21, 2010 [9 favorites]

There are good reasons to argue the way they do, even above and beyond the law.

The idea of the Constitution was to be a social contract, a delineation of what entities in the government could have what power. The idea of the Constitution was that it was supposed to be very hard to tell anyone what they had to do, except in certain, well-defined cases. And there's a built-in process to change those rules, one that requires very broad agreement by the states.

The reason the originalists stick to that idea, and I must confess to mostly being in that camp, is because the Constitution means what it meant when it was written. The "Living Constitution" doctrine is extremely noxious to the system as designed, because it turns the Supreme Court into a direct arm of politics.

Roe v. Wade started, essentially, the cultural war. It was very much a political decision. Now, I believe intensely in the right to have an abortion if you choose; you couldn't possibly get more pro-choice than I am. But at the same time, I also recognize the incredible damage that decision, and the whole Living Constitution doctrine, has done to the country. We no longer choose justices based on competence, but rather ideiology. It mostly shouldn't matter who's sitting in those chairs, because the place for political change is in the states and Congress, not in the courts. We should be arguing over who's the better justice, not their opinion on abortion. The fact that we have "litmus tests" for justices is insane. They're supposed to interpret the Constitution as it's written, not change it to suit their own personal whims.

In essence, in exchange for winning the Roe v. Wade battle, the liberals are, very slowly, losing the war... a war that didn't have to happen, and shouldn't even be in that forum. It should be fought at the ballot box, or in the states, not in the Supreme Court.

When you can redefine words to mean whatever you want them to mean this year, it completely invalidates the idea of the rule of law. If we want to fix laws that have been superseded by social change, we should mostly be doing it by repealing or overriding them with new legislation. Only in the most extreme cases should the Supreme Court be getting involved.

We keep getting bad decision after bad decision after bad decision out of the Court these days, and the primary reason for it is because the liberal justices took more power than they should have. Now that power is being used to ends we don't like, just as Bush's assumed powers are being used by Obama in ways the conservatives don't care for.

There's a lot more intelligence to the idea of strict originalism than what's typically recognized on Metafilter, and I wish more of you understood what a corrosive influence the idea of redefining words in the law to suit new goals are. You see this over and over again.... they pass laws about 'terrorism', giving them horrible, draconian powers, "but only over the bad guys", so people accept it.... and then they just keep redefining terrorism until they can go after people they don't like.

We need to be changing these things through active agreement, not by hijacking the language, because it can always be hijacked in a direction you don't like by people who have only their own interests at heart. To make big social changes, you're supposed to convince the voters and the legislators, involving millions of people. As is, you need merely convince five.
posted by Malor at 8:55 AM on May 21, 2010 [10 favorites]

So, there's something I don't understand about originalism... I know that what I'm about to ask is sort of a stock complaint about it, but I've never personally heard any good response. Basically, I'm not posting this as an "ah HAH, thus I disprove originalism all y'alls in the SC majority are dumbheads!" thing, but more as an "okay, so what is the originalist response to this line of argumentation" one. Anyway:

So, say someone in 1789 passes an amendment reading

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This means that what's considered excessive or cruel and unusual according to the standards of 1789 is banned. Okay, then let's say someone in 2010, call him Senator Menard, drafts an amendment reading:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Since this new amendment bans practices that are considered excessive or cruel and unusual according to the standards of 2010, it is a completely new and in fact tremendously radical addition to the Constitution. Right? Like, that's how this game works, right?
posted by You Can't Tip a Buick at 9:09 AM on May 21, 2010 [5 favorites]

What I learned from this thread is that the constitution says it's OK to whip 7-year-olds.
posted by Mister_A at 9:16 AM on May 21, 2010 [2 favorites]

Since this new amendment bans practices that are considered excessive or cruel and unusual according to the standards of 2010, it is a completely new and in fact tremendously radical addition to the Constitution. Right? Like, that's how this game works, right?

Yes, I don't see why that should bother you. I don't think that Scalia's brand of "originalism" about the 8th Amendment is the only consistent view, but the consequence you are describing is pretty fricking reasonable.

I hope you don't think it's a reductio.
posted by grobstein at 9:17 AM on May 21, 2010

Roe v. Wade started, essentially, the cultural war.

No it didn't. The cultural war (I think we're referring to the same war here) was initially over on the one hand segregation, and then on the other hand divorce. The cultural war, if we're referring to the same war, was and is led by American evangelical fundamentalist Protestants, and this particular group didn't spend much time talking about abortion because it was seen at the time as a "Catholic thing." And Catholics, as you know, aren't real Christians because they worship works, saints, Mary, and the Pope.

Roe v. Wade was, in fact, initially seen as a sound decision by most American evangelical protestants — here is a link to a post (on what as far as I can tell is a very right wing evangelical blog) about the initial response to the decision from the Southern Baptist Convention. Key quotes:

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The U.S. Supreme Court, in a 7-2 decision that overturned a Texas law which denied a woman the right of abortion except to save her life, has advanced the cause of religious liberty, human equality and justice. At the same time ‘the court struck down a Georgia law that imposed unconstitutional procedures, in getting medical approval for an abortion…
--------

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Question: What is the Southern Baptist position on abortion?

Answer: There is no official Southern Baptist position on abortion, or any other such question. Among 12 million Southern Baptists, there are probably 12 million different opinions.
--------

--------
In short, if the state laws are now made to conform to the Supreme Court ruling, the decision to obtain an abortion or to bring pregnancy to full term can now be a matter of conscience and deliberate choice rather than one compelled by law.

Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.
--------

Frank Schaeffer, one of the evangelical leaders who was responsible for the turn toward placing abortion (rather than divorce) at the center of the cultural war, has since left the American evangelical Protestant community and has written a book about growing up as the son of evangelical leader Francis Schaeffer and about growing into his role as an evangelical leader in his own right. In it, he talks extensively about his and his father's leadership in making abortion the centerpiece of the cultural war.
posted by You Can't Tip a Buick at 9:31 AM on May 21, 2010 [9 favorites]

In essence, in exchange for winning the Roe v. Wade battle, the liberals are, very slowly, losing the war...

Which war is this? The war on straw?

I'm sorry; if you wish to be at all persuasive, you should cut the hyperbole by about 75%, at least.

We no longer choose justices based on competence, but rather [sic] ideiology.

Justices have always been chosen based on a mixture of competence and "ideology," they continue to be so chosen, and they will be so chosen in the future, I imagine. Would you prefer robots?
posted by octobersurprise at 9:36 AM on May 21, 2010

Yes, I don't see why that should bother you. I don't think that Scalia's brand of "originalism" about the 8th Amendment is the only consistent view, but the consequence you are describing is pretty fricking reasonable.

I hope you don't think it's a reductio.

I wouldn't dream of claiming that a position held by so many people who are in fact a great deal more clever than me can be demolished like that, I just wanted to know what the response is/was. The reason why what you've said seems so awkward is that it seems like half of a process¹ to ensure that the country is always governed by laws that describe and regulate a nation that doesn't resemble the actual nation that those laws are supposed to regulate.

I suppose (if there's no other originalist response... I don't buy what you're selling and I suspect that the actual originalist position is significantly smarter than what you've posted), ahem, I suppose that if one were to in fact take your position seriously and if one were actually interested in having a system of laws that govern a nation, the way to do it would be something like the British way, where the constitution is kept diligently and meticulously unwritten in order to keep people from playing silly games with it.

[1]: The backhand to the originalist forehand takes place in congress, where no one will ever pass, or even draft, a new amendment reading "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," because it's already in there.
posted by You Can't Tip a Buick at 9:48 AM on May 21, 2010 [1 favorite]

The problem with "originalism" is that the original meaning doesn't exist. It's like saying that someone interprets the Bible "literally" -- it's an impossible proposition. Saying "the words mean what they meant then" is all well and good, but it completely flattens out the culture of the 18th century. The framers of the constitution were not all members of some massive uni-brained organism that shared the exact same opinions on all issues. And as I said in a previous post: "People who claim to want to follow the constitution and the intentions of the Framers are all too happy to ignore things like the generally deist/enlightenment attitude among most of them, James Madison's reputed atheism, and Thomas Jefferson's belief in the separation of church & state and his rejection of mysticism and the supernatural, among other things. "Strict constructionalism" in any time is really just reactionary-conservative interpretation of the Constitution disguised by the rhetorical strategy of appealing to some impossible to determine "true intention.""
posted by Saxon Kane at 9:55 AM on May 21, 2010 [10 favorites]

Malor: “The reason the originalists stick to that idea, and I must confess to mostly being in that camp, is because the Constitution means what it meant when it was written. The "Living Constitution" doctrine is extremely noxious to the system as designed, because it turns the Supreme Court into a direct arm of politics.”

But the Supreme Court is a direct arm of politics. It always has been, and it always will be. Interpretation of the law is a political act with significant repercussions. This is as it should be.

Furthermore, I have to say that I've always found originalism to be incoherent – and not for all of the standard, typical reasons cited by liberals. I don't think it makes sense to claim that the founders were foolish or immoral merely because they were in the past, and because we have some differences with their views; certainly views have changed, but to come to grips with the Constitutional tradition means to question our own views, as well, and to look for light in that document. It's easy to note that some very barbaric legal actions were allowed in the 18th century, and to conclude therefrom that the Constitution has to be constantly updated. This is even enshrined in the words of the Court itself, concerning shifting mores and the tenor of the times. I've been concerned about that conception of the problem cropping up more and more in the Court's opinions, primarily because I think it's not true; some things are right, and some things are wrong, and it was just as wrong to execute 7 year old children or violate the privacy of homosexuals 300 years ago as it is now.

But I still feel as though originalism is incoherent – primarily because it presumes that the Constitution meant something coherent and apparent when it was written. But in fact it apparently didn't, not yet; the Constitution is made of words that are to be interpreted, and those words were agreed upon, but immediately upon its adoption the broad and varied debate about what it meant and how it should be applied began. If thoroughgoing originalism – the notion that we have to look chiefly and perhaps even solely to what the founders intended when interpreting their document – made sense, then we would expect to look at history and see a broad spectrum of agreement about what the constitution means, even among those who disagreed with it. But in fact that's not the historical fact; even as the Constitution was being written, there was much argument and debate about what the words being written down actually indicated. Moreover it's also clear that the practical application of Constitutional principles has never been something that even two or three people in government really agreed upon; in the years after the Constitution took force, there were some pretty angry and contentious public debates about what was and was not strictly Constitutional.

I understand the worry that the Supreme Court might continually expand its powers further and further by being more and more loose in its distinction between "interpretation" and "legislation." Moreover, I know that the Supreme Court, as a non-democratic function within government, is viewed with some wariness by those who prefer strictly democratic processes. I don't worry about these problems as much as many people do; but even if I did, the fact remains that originalism is no refuge from the difficulties the Court may pose. Originalism can't help us keep the Court in check or preserve democratic order, for the simple reason that there is no pure and simple original to hem to.

In the end, "originalism" is just another way to assert that you don't like the Court's current interpretation of the Constitution. But whether you like it or not, I don't think you can say that it's not an interpretation at all.
posted by koeselitz at 10:06 AM on May 21, 2010 [12 favorites]

Or, what koeselitz said.
posted by Saxon Kane at 10:09 AM on May 21, 2010

Can a person truly blind themselves so completely in order to hew to their dogma?

Yep.
posted by davejay at 10:55 AM on May 21, 2010

I do think Malor had a good point there about Roe perhaps being an overextension of judicial power. I sometimes think that if the Court had never touched the issue, the political process could have got us to a fairly rational place today. Now, I fear that if the Court does overturn Roe, states like Nebraska will pass much more restrictive abortion laws than they ever would have thought to otherwise.

I ultimately disagree though. The fact is, it's pretty non-controversial that there ARE rights protected by the Constitution that aren't explicitly in the Constitution. Thomas, bless his crazy heart, is the only one on the Court who might disagree.

The classic example is marital privacy as in Griswold -- a state can't ban the use of condoms by a married couple. And once you concede that there are SOME rights not in the Constitution, it becomes a line-drawing problem. You may not agree with where the Court drew the line in Roe, but in terms of judicial methodology you can't just say "it's not in the Constitution!!!" to refute it.

Further, see Koeselitz's comment above about how difficult it is to even know the "Founders intent" at all. Since I can't add anything to that great and thoughtful comment, I'm going to cheat and steal a favorite quote of mine from Justice Jackson on the same subject:

''Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.''
posted by ScotchRox at 10:59 AM on May 21, 2010

Thomas, ever the orginalist, apparently said they should only consider practices at the time the Bill of Rights was adopted.

He may think that, but if you read his dissenting opionion, which is available here he spends a lot of time talking about how the Court is wrong on the facts of a national consensus against life without parole for juvenile offenders.

Stevens, however, noted people as young as 7 were put to death in the 18th century.

He didn't note that. He wrote this:

"While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."

That says nothing about the historical practice of the 18th century, it's just a showboating swipe at Thomas.

But it doesn't even really make sense in that context. What Thomas actually wrote was this:

The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts ofpunishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986). As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the ageof 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards.

Thomas is not "failing to rule out a death sentence" or even "not[ing] people as young as 7 were put to death in the 18th century", he's citing a 1989 Supreme Court ruling (authored by Scalia) that affirmed the death penalty for juveniles Kevin Stanford and Heath Wilkins as not being cruel and unusual punishment. That ruling noted that the law at the time of the Founding theoretically allowed capital punishment for those as young as 7, not that it allowed it in practice.

Thomas's point here is not that juveniles should be executed, but that when the court wrote that "proper Eighth Amendment analysis 'begins with objective indicia of national consensus'" it ignored that it had previously inquired into penal practice of the time of the Founding in order to determine what was "cruel and unusual" and that therefore, that inquiry should be the starting point for Eighth amendment analysis.

Stanford's sentence was commuted in 2003. Wilkins conviction was later overturned on other grounds and he pled guilty to a lesser charge and was sentenced to three consecutive life terms.

No child criminal was actually put to death.

Well you might want to have waited for tomorrow. As your link puts it: "TOMORROW: Connecticut executes a twelve-year-old in 1786."

Here's a description of that execution along with others of children even younger in the United States and the execution of George Stinney at age 14 in 1944. (This to make a historical point, not to argue that juveniles should now, or even in 1944, be executed, both of which seem pretty clearly wrong to me barring some extraordinary circumstances.)

More interesting to me than much of the preceding: Thomas does make an error in quoting Scalia. Thomas writes: “the common law set a rebuttable presumption of incapacity to commit any felony at the ageof 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.”

But, as Bell points out, Scalia actually wrote: "theoretically permitted capital punishment to be imposed on anyone over the age of 7." Which is the difference between between 7 and 8.

Any lawyers want to weigh in on whether this is the kind of thing than can be corrected between the slip opinion and the United States Reports? See the disclaimer at the beginning of the opinion:

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

posted by Jahaza at 11:08 AM on May 21, 2010 [1 favorite]

The idea of the Constitution was to be a social contract, a delineation of what entities in the government could have what power. The idea of the Constitution was that it was supposed to be very hard to tell anyone what they had to do, except in certain, well-defined cases.

So let's look at the case of abortion. Scalia says the constitution doesn't give anyone the right to an abortion. And I agree with him on that. I have a right to vote (arguably) and the government is required to make the vote available to me. The government is not required to make abortion available to anyone. However, a woman may have the right to chooose an abortion within her means. The constitution does give her the right to be secure in her person and effects. Specifically,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It doesn't say this only applies in the case of police investigations but is broadly construed, mentioning both searches and seizures and gives the only exceptions to that rule. Note also that in law, any constraint on how to use something is a taking or seizure. Now a group of individuals who felt this way about search and seizure plausibly believed that the question of the state commanding a woman to do such and such with her body, either proscriptively or prescriptively, without due process is already covered in the declaration or preamble. Note as well that the constitution doesn't say anything about my right to life (except if I am charged with a crime), does it? So would an originalist or textualist or strict constructionalist say the government can order me dead as long as I am not charged with a crime? I think this textualist approach runs into many, many problems analogous to this if we ignore the implications of the context (e.g., the preamble and the declaration). Clearly the framers didn't intend their literal words to mean the government could deprive a citizen of life outside the context of a criminal prosecution, but rather this was an assumption and they elaborated only on an exception to this assumption, i.e., that in the case of capital crimes one cannot be held in jeopardy twice for ones life. It is impossible to ignore the context and this requires nuance and inference, not merely reading the words and looking up definitions and trying to discover whether the information is explicitly there or not. And it is my impression that NO practitioner of these textualist approaches every really uses them all the time, but rather only when making arguments against things they philosophically oppose. When arguing for a position not explicitly addressed by the constitution, these ideologues are quick to infer specific meaning from broader, vaguer statements within and outside the constitution.
posted by Mental Wimp at 11:13 AM on May 21, 2010

The reason the originalists stick to that idea, and I must confess to mostly being in that camp, is because the Constitution means what it meant when it was written.

How about Article 5, which outlines the process for amending the Constitution? Doesn't that clearly indicate the founders' intent that the Constitution change over time? It seems to me that the Constitution itself repudiates the "originalist" argument.
posted by kirkaracha at 11:40 AM on May 21, 2010

Note as well that the constitution doesn't say anything about my right to life (except if I am charged with a crime), does it? So would an originalist or textualist or strict constructionalist say the government can order me dead as long as I am not charged with a crime?

The Fifth Amendment's Due Process Clause says you can't "be deprived of life, liberty, or property, without due process of law."
posted by kirkaracha at 11:43 AM on May 21, 2010

We didn't need to execute children back then, we had the workhouse and the Australian prison colony. Also, rights for anyone other then the aristocracy were pretty much non-existant.

Interestingly, how would The Bulger Case work in the US under current law and under the proposed changes? Is is the case that before it would have been life without parole and now the would have the chance at parole?
posted by marienbad at 12:04 PM on May 21, 2010

And once you concede that there are SOME rights not in the Constitution, it becomes a line-drawing problem.

This is true, but it seems to me that the correct -- if unpleasant -- solution to the problem then is to simply back up and simply reject the idea of anything in the Constitution that a very plain reading doesn't confer.

That said, I think it's a mistake to look at the Constitution in terms of protecting enumerated rights; where we should be applying the most strict standards are in its enumeration of the Federal government's powers. Were it not for the broad powers granted to the Federal government, we wouldn't be constantly having so many disputes that necessitate referring to the Bill of Rights.

So it's possible on one hand to read the Constitution very narrowly and believe that it doesn't directly confer or enumerate a great many individual rights that people currently enjoy, but to simultaneously believe that the government ought not be able to infringe on those rights -- not because they are explicitly protected by the Constitution, but because the Constitution, by such a strict reading of the document, does not give the government the power to enter those areas. With this sort of reading, the only individual rights that you need to enumerate are the 'edge cases' where you can easily foresee a conflict between a power granted to government and something you want to preserve for individuals. I.e., the Bill of Rights becomes an exception-handling mechanism, not an exhaustive definition of individual rights into which you need to shoehorn anything that you don't want the government running roughshod over. The vast majority of de facto individual rights can remain safely unenumerated, since the government is constrained to only what is explicitly defined in the Constitution, and any expansion of power would require an amendment -- the same level that would be required to remove an explicitly-enumerated right anyway.

It doesn't necessarily follow that just because someone thinks that the Constitution doesn't contain a "right to privacy" that they think the government ought to be able to interfere in all the areas that unenumerated "right" currently shields; if you take an extremely limited government on premise then such an enumeration of individual rights is largely unnecessary, and perhaps even harmful.

This view is currently unpopular, probably for political reasons, but at various times it has been moreso, and it has a lineage dating back to the founding if such intellectual pedigrees are important.
posted by Kadin2048 at 12:36 PM on May 21, 2010 [3 favorites]

Were it not for the broad powers granted to the Federal government, we wouldn't be constantly having so many disputes that necessitate referring to the Bill of Rights.

Maybe I'm misunderstanding your point, but throughout your comment you seem to equate "government" with "federal government." When in actuality, it's state governments that are most likely to be infringing on individual rights.

A narrow conception of the powers granted to the federal government does absolutely nothing to prevent, e.g., the state of Texas criminalizing homosexual sodomy. A broad conception of unenumerated rights does.

I was surprised when I learned that the incorporation of (parts of) the Bill of Rights against state governments is pretty much a 20th century development. Before that, state of Texas could freely ban your book if it felt like it. So even those most basic, enumerated Constitutional rights required some interpretation that arguably differed from the hallowed Framers Intent to get to where we are today.

Also, note what alleged originalist Scalia is doing with the Second Amendment in the DC case recently. He's interpreting it pretty darn broadly. A "plain reading" of the Second Amendment seems, to me, to allow people to keep arms in relation to Militia service, not necessarily own whatever guns they feel like.

I believe there's a case pending from Chicago, to determine if the Second Amendment should be incorporated against the states (Heller was only for the federal government, as it was Washington DC).
posted by ScotchRox at 1:19 PM on May 21, 2010

Were it not for the broad powers granted to the Federal government, we wouldn't be constantly having so many disputes that necessitate referring to the Bill of Rights.

That's not really true, though. Much of the stuff we have disputes over consists of forcing states, who have a general police power, to abide by the restrictions placed upon the federal government by the BoR (and to the states by the 14th).
posted by ROU_Xenophobe at 1:28 PM on May 21, 2010

With this sort of reading, the only individual rights that you need to enumerate are the 'edge cases' where you can easily foresee a conflict between a power granted to government and something you want to preserve for individuals. I.e., the Bill of Rights becomes an exception-handling mechanism, not an exhaustive definition of individual rights into which you need to shoehorn anything that you don't want the government running roughshod over.

But all of this seems to assume that the only two interested parties here when it comes to questions of rights are the government and some homogeneous entity called the people whose rights and interests are always compatible.

People who don't work in the government have proven themselves to be more than sufficiently adept at depriving others of the unenumerated rights you allude to. That's part of why various levels of government adopt codes of law and law enforcement mechanisms: to protect our basic rights.

So the government is constitutionally charged with a responsibility to protect our basic rights and liberties. I don't think that's a controversial claim, is it?

Now, does that grant of authority include only the powers required to protect those specifically enumerated rights detailed in the Bill of Rights? Or is the government also responsible for/within its authority to protect those natural rights that aren't specifically enumerated as well? I think the answer is the latter. Originalists, it seems to me, selectively choose to believe it's the former.

The narrow formulation of originalism you laid out above doesn't really seem to address that question.
posted by saulgoodman at 1:34 PM on May 21, 2010

In other SCOTUS news: Clinton Library May Not Turn Over Documents For Kagan Confirmation Hearings
posted by homunculus at 1:51 PM on May 21, 2010

Maybe I'm misunderstanding your point, but throughout your comment you seem to equate "government" with "federal government." When in actuality, it's state governments that are most likely to be infringing on individual rights.

The issue of "incorporation" is, at least in my mind, a separate issue, and there seem to be fairly good arguments both ways. It seems on its face that much of the Constitution doesn't have much to say about state governments and concerns itself with defining the relationship between the people and the Federal government, or enumerating the powers of Congress and the other branches, and that state governments are restrained by their own (state-level) Constitutions or other similar documents (charters, etc.).

However some parts of the Constitution pretty clearly would apply to the states, because they are not written in a way that constrains Federal power, but instead clearly state an individual right. E.g., the First Amendment is phrased as a restriction on Congress ("Congress shall make no law...") but the Fourth Amendment is written much more broadly ("The right of the people to be secure...shall not be violated"). I think the most obvious way to read this is that there is nothing in the Federal Constitution prohibiting a state from mucking into First Amendment territory, but cannot enter Fourth.

The fact that this might lead to outcomes that we do not like -- e.g. Texas criminalizing sodomy -- does not necessarily mean that the interpretation is incorrect. (Similarly, the converse, that a particular interpretation produces effects that we like -- e.g. that the pneumbra argument produces a right to abortions, which I think is clearly a Good Thing, socially -- doesn't mean that it is correct either.) The only conclusion we can draw between a discrepancy between what most people would like, and what they'd get under a literalist interpretation, is that the Constitution is in need of revision.
posted by Kadin2048 at 2:18 PM on May 21, 2010 [1 favorite]

I'm just surprised Thomas actually spoke.
posted by Pax at 9:13 PM on May 21, 2010

The prison system seriously needs to change their point of view from punishment of criminals to rehabilitation.
posted by zcode7 at 11:08 PM on May 21, 2010