In an earlier post I took Arlen Specter to task for not understanding what originalism means. I thought it might be handy, especially since I hope the subject won't go away for some time, to offer up an example of what originalist thinking looks like. Now the beauty of originalist thinking is that you can do this at home--with just a little help in the way of grammatico-historical analysis. In fact, I happen to think that it's so relatively easy that only a well trained lawyer can screw it up.

Let's take, for our experiment, a case similar to Roper v Simmons, a recent case, decided just a few months ago. The question in the case was whether a state law permitting the execution of a 17-year-old, convicted of murder, constituted a "cruel and unusual punishment" under the Constitution.

When turning to the text of the Constitution, we find that capital punishment is acknowledged (at least as a possibility) in Amendment 5, which states, in relevant part:

No person shall be...deprived of life...without due process of law....

Amendment 8 states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

Taken together we can readily understand that capital punishment, in and of itself, is not considered, in the Cosntitution, a "cruel and unusual" punishment.

In Roper, Simmons argued that the execution of a minor was in fact "cruel and unusual". Of course, the problem is that the constitution doesn't define, in the text, what it means by cruel and unusual. As Justice Stevens pointed out, in his concurring opinion in Roper:

If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989).

What is a poor originalist to do? Well, the first thing to do is to acknowledge that Justice Kennedy is correct: the Constitution would not forbid the execution of a 7-year-old today. (Let's cknowledge that what the Constitution permits it does not exactly require.) Therefore, the Constitution does not forbid the execution of a minor.

Right about here is where the originalist must part company with "vitalists" (that is what I now call people who hold to something like the "living, breathing document" garbage). For vitalists want right here to invoke the notion of evolving standards of decency; so do originalists--just in a different way.

What vitalists want to say--and what they do say--is that societal standards have changed since 1789. We would no longer sentence a 7-year-old to death. The court has to apply a standard to Constitutional review such that this changed standard is taken into account.

But does the court really have to do this? As an originalist, I can easily agree with the Court that our standards have changed. This change is reflected in the fact that the State of California, while permitting the execution of a minor, does not permit the execution of a 7-year-old. There, in the legislative act, is the evolved societal standard at work (specifically, the society of the State of California).

The originalist notes the fact that punishments for crimes are specified by Congress, or the state legislatures, respectively. And it is in legislative acts that changing societal norms--what the Court wants to call "consensus"--are reflected. Judges apply the law, not their best guesses as to what the new, improved societal norm, or consensus, is. The fact that the State of California has a law permitting the execution of a minor, demonstrates that there is not a uniform consensus in the State of California against the execution of a 17 year old. And, in contrast with the Court here, an originalist does not count it relevant, in Constitutional review, that some other state, or some number of other states, have reached a uniform consensus against the execution of minors. And it certainly is irrelevant that some other nation, or group of nations, has reached such a consensus. Again: judges apply the law, not what they think is popular sentiment. As popular sentiment changes, let the people reflect those changes through their representatives in their legislatures. That is what a legislative body is for, under our system of government.

"But," says someone, "putting minors to death is barbaric!" Well, I do just happen to agree--up to a point. That is, I do think that putting 7-year-olds to death is barabaric; I would even stipulate that it is barbaric to put a 14-year-old to death. But I don't think that it is barbaric to put Simmons to death--not for his crime. But this is my personal opinion; it is not the law. And the place for my personal opinion is in the voting booth--or in a blog--not, if I am an appellate judge, in an appellate opinion. (And there's no danger of that happening, I can assure you!)

"What you're saying", says someone else, "is that if enough people in a state think that it is not cruel and unusual to execute a 7-year-old, then that state may do so." That is exactly what I'm saying.

"But there has to be a limit on state power, don't you think? The Constitution was written to limit the power of government." I do indeed believe that there has to be a limit on state power; but the Constitution wasn't written to limit the power of government. It's purpose was much narrower. It created--and limited--the power of the federal government. The state governments have their own constitutions, which constitutions--ratified by their citizens--serve to limit their power. The upshot of my position here, then, is that the 8th amendment prohibits the federal government from inflicting cruel and unusual punishments--not, technically the states. So nothing in this discussion defeats my position that, in fact, the execution of Simmons is not unconstitutional.

"But wait", you say, "the 14th Amendment applies the Bill of Rights to the states." Well, I reply, not for an originalist. On an originalist view, the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is really rife with problems. First: How, logically, would the 9th and 10th amendments be applied against the states?

The 9th amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Note the text. It says, in effect, that the rights identified in the Constitution are not the only rights the people have. When vitalists use this amendment against the states, they use it to find those new and unusual rights. When I have asked the vitalists I know, "Where is that right?" They invariably reply, "Well, it isn't specified in the text of the Constitution. But the 9th amendment clearly asserts that the rights in the Constitution are not the only rights the people have. And the courts have to define and protect those rights--whatever they may be--from state encroachment." But this assumes as true what has not yet been proved: that the Bill of Rights is applied to the states by the 14th amendment. What the text says is that "the enumeration in the Constitution" of rights is not to be interpreted as meaning that those rights--and only those--are all the rights that the people have.

Three things must be born in mind here. First: the Constitution, as I said above, creates and limits the federal government. It does not creat and limit any state government (except insofar as state power is limited by virtue of certain powers having been delegated to the federal government by the states). So the protection here is not a protection of rights of the people against the states wherein they reside; it is a protection against the federal government. Second: A right is a right against some entity. In this case, since we are talking about the federal constitution, these other rights, not specified are rights against the federal government. Three: the "people" in the Constitution live in states, not in limbo. The 9th amendment concerns states rights.

"Yes", someone says, "but clearly the incorporation doctrine would mean that the 9th amendment, when applied against the states, means that citizens in states do not have only those rights enumerated in their state constitutions." Perhaps. But this also assumes what has yet to be proved: that the 14th amendment does indeed apply the Bill of Rights against the states. Also: if the federal constitution is sufficient to protect the people against their federal government, a state constitution should be sufficient to protect them from their state government. And if not, then the people may take up arms to defend themselves from tyrants if need be. It's the American way.

The 10th amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Even if I could accept vitalists' arguments for the applicability of the 9th amendment against the states, I cannot see how this amendment can be so applied. Notice that this amendment addresses "powers...delegated to the United States by the Constitution." The "United States" here refers to the federal government. The powers that the federal government has were delegated to it by the states that created the union and the federal government in the first place. How would vitalists see this amendment applied against the states? To have any meaning, the 10th amendment, applied against the states should be understood as saying that "The powers not delegated to the State by this (State) Constitution, nor prohibited by it to the counties (or cities), are reserved to the counties (or cities) respectively, or to the people." This of course would be based on the understanding that the states were created by the counties, which they weren't.

Of course, all of this assumes "full" incorporation, and what the court typically applies is a doctrine of "selective" incorporation. But the need to make this distinction tells me that incorporation of all or even part of the bill of rights was not intended by the 14th amendment. It is clear that the 9th and 10th amendments cannot be applied, so if the amendment had in view the application of all or part of the remaining eight amendments then it surely should have specified which, if not all.

The most obvious application of the 14th amendment is simply that, just as the amendment has it, all persons--regardless of color, or prior status as slaves--born or naturalized in the United States are citizens of the United States and citizens of the state wherein they reside. In other words, especially as it regarded the newly freed slaves, they were not merely alien residents, with no rights of citizenship. All persons born or naturalized in the United States are citizens and are entitled to all of the rights and privileges accorded to citizens.

The second problem with the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is that nothing in the text of the amendment states this. Section 1, the relevant part of the 14th amendment, for our purposes here, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It would have been a simple thing for this amendment actually to contain language to the effect that the first ten amendments (or at least the first eight) now applied to the states. But it does not do this; and I pointed out in a previous post what the Supreme Court's, intial understanding of the 14th amendment was (as expressed in Slaughterhouse). This understanding began to change in 1925 when the court started gradually incorporating the provisions of the bill of rights into the 14th Amendment's "due process" clause by declaring each of the rights fundamental to the conception of due process. And there was no real explanation of this doctrine until Gideon v. Wainwright, 372 U.S. 335 (1963)--almost one hundred years after the amendment was ratified. Justice Hugo Black, for the majority, wrote:

"This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment." (Gideon, 372 U.S. at 341-42.)(Emphasis mine).

First, the court decided that certain parts of the 14th amendment applied to the states, never mind the actual amendment that the states thought they were ratifying! The court decides what sort of legal burden to place us all under, then later explains it to us. And if we disagree...?

Even so, the fact that the court decided to incorporate the bill of rights is to me proof that the amendment was not written and ratified with the idea of incorporating the bill of rights. Furthermore, the court later discussed incoporation as a philosophy. Writing in Pointer v. Texas, Justice Harlan said:

"The philosophy of 'incorporation,'...subordinates...state differences to the particular requirements of the Federal Bill of Rights...and increasingly subjects state legal processes to enveloping federal judicial authority." (Pointer, 380 U.S. at 409.)

It is clear to me that this "philosophy of incorporation" is nothing more than a power grab by a prehensile court. And that fact raises a good question, I think: if the court can willy-nilly decide to incorporate the bill of rights, can it not just as well--and more properly--decide to unincorporate the bill of rights? Another way of asking the question is: if the court engages in a power grab, can it not relinquish that illegitimate usurpation? I think not only can it do so, but that it ought to do so.

Now some want to say that originalists should accept the notion of incorporation because Senator John Bingham said it was their intent to apply "the sacred Bill of Rights" against the states, and originalists are supposedly all about "original intent". Frankly, I don't find the history of the debates conclusive here. But more than that, given the effect of such a move as Bingham and his ilk intended, this language certainly should have been in the amendment--at least on the assumption (which I think reasonable) that when you are signing away some of your rights, those surrendered rights ought to be explicit! The expression of Bingham's desire took place during the senate debates (1866) on the subject (i.e., the 14th Amendment). This hardly means that this was the purpose that other senators had in mind. And it certainly does not mean that the states understood the amendment as having this effect upon them. (Besides, by "intent" most of us mean "meaning," as arrived at by application of the grammatico-historical method, or interpretation by use of regular rules of grammar and the facts of history. Utilizing this method of interpretation, one takes into account the historical settings and situations in which a text is written, in an effort to draw out the intended meaning which grammar cannot do alone. To know something of the life and times during which a text was written greatly enhances understanding of the text by placing what we read within its historical context. The grammatico-historical method seeks to interpret the words of a text in light of what the words meant when the document was written.)

The application of the Bill of Rights against the states has been nothing short of a "cold" revolution, a revolution in the relation of the states to the federal government, a revolution in the powers of both federal and state governments. This is exactly what the court said in Slaughterhouse (see my aforementioned post).

Given the fact that the incorporation doctrine radically alters the form of government created by the Constitution, it is not too much to require that the language in the amendment should make this radical alteration more explicit.

The third problem with the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is that it is not at all clear that the states understood themselves to be ratifying an amendment which would do this. It surely is not right that states ratified an amendment, only to find out later that, by ratifying said amendment, they had surrendered as much power as the incorporation doctrine asserts they surrendered.

Now, I understand that some very bad 14th amendment jurisprudence took place, like, for example Justice Waite's opinion in U.S. v. Reese, 92 US 214 (1876), which effectively deprived blacks of what the 14th amendment provided. But I believe this bad jurisprudence could have been corrected without applying the notion that the 14th amendment applies the bill of rights against the states. As it is said: abusus non tollit usum ("prior abuse is no argument against proper use"). In other words, it is no argument against the position I take on the 14th amendment that this position was formerly and regularly abused by the Supreme Court. (This is especially the case if you think, as I do, that the position of the court in cases like Reese was not reached on the basis of originalism!)

Now, getting back to the death penalty and minors: The Constitution, on a proper view (meaning, a view which applies the grammitco-historical method), does not prevent the execution of minors, specifically, in this case, a 17-old. As for the issue of evolving societal standards, these standards are held in the minds of people, who live in states whose laws are created by popularly elected representatives. The acts of these legislatures, under our Constitution, are the proper places for these evolving standards to work their will, and to make themselves known. (Interview with Robert Bork (2d hour), Laura Ingraham Show, KNUS 710-AM, Denver, Co., 15 July 2005.)

Of course, what the court said in Roper, was something akin to this. Legislative acts do reveal evolving standards; and a majority of states have outlawed such executions. Therefore, there is now a societal standard which rejects such executions, and since evoling standards must determine the meaning of terms such as "cruel" and "unusual" in the Constitution, these types of executions are now unconstitutional.

But note two things about all this. First, the states which freely created this putative new consensus, cannot now freely reach a contrary consensus later. Second, I would also like to point out, that the Court, in Reese, among other cases in which the court failed to protect the rights which the 13th and 14th amendments were intended to extend to blacks, was only doing just what the court now asserts that it may do. It simply applied its view of what the national consensus was, regarding the status of blacks in US society, as evidenced, I am sure, by the legislative acts of states. If one can accept that approach when it comes to, among others, death penalty cases, then I find it difficult to see why one cannot accept it when it comes to civil rights cases--cases like Reese and, of course, Plessy v Ferguson, 163 US 537 (1896).