As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as president of France because he was the indispensable man:
"Mon ami, the cemeteries are full of indispensable men."
—Justice St. Antonin Scalia, "God's Justice and Ours".
I was deeply saddened this weekend to hear of the death of Justice Scalia, the most engaging, provocative, and brilliant of all of the justices on the Supreme Court. As someone who reads Supreme Court decisions for fun, I will definitely miss his wit and humor and crankiness, and the way he made the job fun. However, I also feel quite strongly that his loss is a significant blow to the Court and to my country.
There are countries in which the fundamental principle is rule by some human being or set of human beings. The United States is not such a country; we are a constitutional republic. In our country the fundamental legal principle is a document, the Constitution, which outlines the divisions of power between different branches of government, limits the powers of government, and provides for certain fundamental rights which cannot be abridged.
Of course no document interprets itself, and therefore there is a need for human beings to read the Constitution and decide what it means. Sometimes the meaning is clear; other times there is an ambiguity which must be settled somehow or another.
It would be lovely if Congress and the Executive Branch could be trusted to police the boundaries of their own limited powers. In principle, there is no inherent logical reason why this could not work. In practice, politicians are too venal to be trusted with this; the general tendency is for people to interpret things in their own favor, expanding their role in the system until there are no restrictions at all. There were only 9 years between the time that Congress proposed the First Amendment (1789) and the time when Congress passed the manifestly unconstitutional Alien and Sedition Acts (1798). Hence the importance of judicial review from an outside body designed to be as neutral as possible. In our system, that role is played by the Supreme Court.
When settling a dispute between two parties requires resolving an ambiguity in a statute or the Constitution, the Court is supposed to resolve the ambiguity with the most reasonable interpretation that is consistent with previous judicial precedents. These decisions are binding on lower courts. (On rare occasions the Supreme Court may reverse their previous decisions, if they are clearly wrong or prove to be unworkable.) In cases where a statute is inconsistent with the Constitution, the Court has not only the power but also the obligation to strike down or modify the statute to make it conform to the higher law.
There is obviously a danger here, that the judges might substitute their own political will instead of trying to find the most reasonable interpretation. This is a form of corruption, because they are there as judges, not politicians. If we had wanted a tribunal with the power to strike down Congressional acts for political reasons (and sometimes to invent new pseudo-legislation), it is unclear why a democracy would want nine unelected Ivy League lawyers with lifetime tenure get to decide for the whole country, based on the arguments of two other lawyers hired by the two parties who lobby for their preferred position—our own American version of the "House of Lords"! The only possible legitimacy the Court has, comes from the idea that generally speaking (aside from the inevitable but regrettable exceptions), the Court is engaged in acts of interpretation, not naked partisan will.
I am prepared to be quite generous here. I do not require that all constitutional rules be explicitly spelled out, so long as there is some fair and reasonable argument that they are implied by structure or context. But there are limits to this. Many judicial decisions exist which can hardly be called textual interpretation by the most generous stretch of the imagination.
The danger of misinterpretation becomes greater when one remembers that our legal system is based on precedent. A single wrong precedent can become a launching pad for even greater departures, and when you stack them together the final result can be the complete and total erosion of some provision or right spelled out in the Constitution, or the generation of some completely new provision or right almost out of whole cloth. Like a rough stone becoming smooth after lying under a riverbed, it is easy for a system of laws to lose its distinctive features over a couple centuries.
For the past few decades the most dominant school of legal interpretation in the legal academy has been that this is not a bug but a feature. (I have even found this view endorsed by textbooks written for Middle School students.) The idea is that there is a "living constitution" which grows and adapts to the needs and ideals of each new generation.
To which I would reply: one may as well not have a Constitution at all, as to have one which is flexible enough to adapt itself to each new generation at the mere whim of judges. If the duly elected representatives of the people pass a piece of legislation, then clearly the mores of the current generation are consistent with that law existing. If, nonetheless, a bunch of unelected politicians decide to strike it down because it is incompatible with the current social mores of legal scholars, well that is merely a minority of the people exercising will-to-power over the majority. Unless, of course, the legal scholars were actually using their legal expertise to interpret the text of the Constitution, which is of course the reason why we select them for the role in the first place. I don't care whether you call it Originalism or Textualism or something else. There are multiple reasonable ideas about how to do interpretation but Living Constitutionalism is not one of them.
In fact, it is only what these scholars might call a "dead constitution" which could actually exert a meaningful influence on the body politic. It is the Constitution with definite meaning that should be called "alive", while the one whose flavor conforms to its surroundings like tofu is "dead". As St. Chesterton said in another context:
A dead thing can go with the stream, but only a living thing can go against it. A dead dog can be lifted on the leaping water with all the swiftness of a leaping hound; but only a live dog can swim backwards.
The rule of law is, simply speaking, the idea that there are certain written ideals which the government is permanently responsible to. The idea of a "living constitution" is pernicious because it subverts our ability to have such permanent ideals. A living constitution is an erasable Constitution. If you value your rights to criticize the government or to have a fair trial, then this can continue to exist only if the government believes in the ideal of upholding the Constitution even when it is inconvenient .
You may ask, why should a few people who lived in 1787 or 1866 (when the 14th Amendment radically changed the balance of power between the federal government and the states) have more power than the rest of us to decide what should be the fundamental rules of society? Haven't we developed morally since then? The people in 1787 even allowed slavery! (Although admittedly this has since been fixed.) Well I should hope we have improved, but this objection is not to the point. The Constitution is not perfect, but it is the one we have. Therefore, until the next political revolution, it defines what is legal and illegal. Furthermore it contains a number of very important principles about due process and so on, which I would rather not have forgotten.
And if there is a powerfully strong consensus that the Constitution should be changed, it contains procedures allowing the people to do so. But it needs to be a stable bipartisan consensus, not the blowing of fickle political winds.
Nothing prevents Congress and the Presidency from acting based on the most up-to-date and progressive understanding of morality. These are progressive, forward-looking institutions. But the Supreme Court is backwards-looking: to make sure we are obeying the ground rules for American politics as traditionally defined by text and precedent. Brown v. Board revolutionized American society, not by inventing a new racial ideal, but by holding the people to the ideal of racial equality which had already been incorporated into the Constitution a hundred years before.
Lawlessness has a general tendency to breed more lawlessness. A given activist court may vote to increase your rights in some particular area, but if those rights are not based on sound legal construction, then at the same time it erodes the rule of law, which is a necessary to protect the existence of legal rights in the first place. It's a shortsighted trade. As St. Thomas More says in the brilliant play "A Man for All Seasons":
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
Let me give some specific examples of legal BS. There are many historical examples such as Dred Scot, Plessy, Cruikshank, Korematsu and Lochner, which have since been repudiated.
The most infamous currently valid precedent is of course Roe v. Wade, which reads more like a rambling college essay than anything resembling legal analysis. Leaving aside your moral views on abortion (mine is that it is deeply evil, but that has nothing whatsoever to do with my current point), no reasonable person reading the actual text of the Constitution would ever guess that this is a protected constitutional right, implicit in "nor shall any State deprive any person of life, liberty, or property, without due process of law". Even many liberal scholars agree that Roe is indefensible from a legal standpoint. Wikipedia's article on Roe has a nice collection of quotes:
In a highly cited 1973 article in the Yale Law Journal,[81] Professor John Hart Ely criticized Roe as a decision that "is not constitutional law and gives almost no sense of an obligation to try to be."[82] Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."[83] Liberal law professors Alan Dershowitz,[84]Cass Sunstein,[85] and Kermit Roosevelt[86] have also expressed disappointment with Roe.
Jeffrey Rosen[87] and Michael Kinsley[88] echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote, "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."[89] Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply."[90] And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather," wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.... Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."[91]
If you support legal abortion as a policy matter, imagine how you would feel if the Supreme Court had decided that the state allowing abortions was a violation of the 14th Amendment right to "life" and "equal protection of the laws". This is not about who is right as a policy matter, this is about not resorting to BS interpretations to short-circuit the political process.
Or consider the Congressional power to "regulate commerce....among the several states" has now become so broad that it includes the power to regulate literally almost anything. One time, Congress passed a law that forbade anyone to bring a gun within 1,000 feet of a school. The point has nothing to do with whether you like guns or hate them, the question is whether this was within the powers of Congress (as opposed to the relevant State Legislature). Their justification was that guns cause violence, violence causes students to feel scared and disrupts education, which leads to a worse-trained workforce, negatively impacting interstate commerce. Clearly, if that counts as interstate commerce, then everything counts as interstate commerce, and there are actually no limits on Congress' legislative powers, aside from the handful of explicit prohibitions in the Bill of Rights and other places. The other sections of the Constitution need not have been written.
In United States v. Lopez, the majority (including Justice Scalia) ruled that this was a bridge too far. This was the first time since FDR stacked the Court that they had ever struck down a law for this reason. Yet it was only a 5-4 decision. 4 Justices were willing to buy the absurd argument, in order to obtain their preferred policy result. The decision was considered a legal revolution for drawing any lines at all, even though in practice it led to very few consequences or future decisions placing limits on what Congress can do. Congress simply re-passed the law to apply to any firearm "that has moved in or that otherwise affects interstate or foreign commerce", and the courts looked the other way.
It is very strange that the Framers would have enumerated 18 different powers of Congress in Article I section 8, if one of them turns out to give them the power to do anything at all. The original idea proposed by the Federalists, was that these 18 powers would be so limited that there would be no need for a Bill of Rights. The rights would simply be everything not covered by one of the limited powers. (Of course, this would still leave you in the soup if a State tried to violate one of your rights, but I guess the idea was that the States would have constitutions of their own.) We can see how that idea worked out. So I'm glad the Anti-Federalists gave us the Bill of Rights. (Nowadays the 14th Amendment has been interpreted—correctly in my opinion, although to be honest I wouldn't want it overrule this now even if it had been bullshit—to mean that the States to also obey most of the provisions the Bill of Rights.)
For some more recent examples, consider Kelo v. City of New London, which ruled by a 5-4 decision that the government to use its power of eminent domain, which is supposed to be for "public use" only, to repossess "economically blighted" property in order to turn it over to private developers. In other words, the government is allowed to give property from one private owner to another, but only when it steals from the poor and gives to the rich. Amazingly the five more "liberal" justices were in favor of this approach, while the conservatives (including of course Justice Scalia) were against it.
Or United States v. Comstock, which ruled that the "necessary and proper" clause allows the federal government to keep people in prison indefinitely, after they have completed their prison sentence. Under a federal law which incidentally applies retroactively to people who were jailed beforehand. There are few laws which are more obviously unconstitutional than this—it is a more interesting game to try to count the number of different constitutional norms which it violates—and yet it was a 7-2 decision, with only Sts. Scalia and Thomas dissenting! Oh, I forgot to mention that the law in question only applies to child molesters. So far. Remember that line about knocking down all the laws in order to get the Devil?
(To be fair, the justices were considering only whether this law was within the Article I powers of Congress, completely separating out the question of whether it violated the Bill of Rights, trial by jury, or the ex post facto clause. But in this case, separating the two analyses is completely absurd. How can an extension of Congressional power possibly be considered "proper" if every imaginable application of that power would violate other provisions of the Constitution?)
I admit I have aesthetic objections to this kind of bullshit as well as moral objections. I remember being in the 5th grade, reading through the Constitution after finishing the in-class assignments. I would like to believe that the words I read then have some relevance to what actually happens. There is a limit to my populism: if some word had a different meaning in 1787 than it does today, or if I was unaware of its traditional legal context, then I don't insist that the courts defer to any accidental misconceptions I may have had. But I would like to think that a citizen who reads the Constitution even today, would have a pretty decent idea of what it means, and would only need to consult a lawyer for the hard cases.
I really don't want to paint too bleak of a picture here. I am deliberately focussing on the bad examples here. There are many examples of Supreme Court decisions which were correctly decided, and there are many constitutional rights (including the all-important First Amendment) which are alive and well. Taken as a whole, the country is far better off with judicial review, than it would have been without it. That is exactly my point—the rule of law is a good thing, more important than the outcome of the individual cases, and we need to protect it.
Believe it or not, it is actually possible to be too cynical about politics. In fact, excessive cynicism is actually the cause of our current political dysfunction; if everyone assumes the worst about a class of individuals, then they have no incentive to be better than that. (Even Members of Congress have to have mostly started out with some real ideals buried under all their dissembling and compromises, or they wouldn't have entered politics in the first place. I can't believe they did it for the pay or the job security!)
Lots of people would say that all judicial decisions are just politics, and any pretense of jurists to be principled and neutral are just hypocrisy. But this is patently untrue. Even if all of life were just "shades of grey", you can still usually tell which greys are whiter and which are blacker, when you hold them up right next to each other in the same light. And right now—historically it has sometimes been the other way around—it is the "conservatives" on the Court who are clearly much more principled in their reading of the texts, and the "liberals" who are just trying to get their preferred policy outcomes.
(Here I am speaking only about the judicial philosophies labeled "conservative" and "liberal", and not about the merits of the Republican and Democratic political platforms in general. It would be perfectly possible for someone with Democratic policy beliefs to be a judicial "conservative", it just tends not to happen in the current political environment.)
There are many examples where conservative judges say things like "I would prefer a different result if I were a legislator, but I think this is the law". Liberal justices are much less likely to say things like that, and much more likely to appeal to vague or nebulous standards in order to get outcomes they obviously prefer personally. In other words they are cheating.
I say this as somebody who has read most of the Supreme Court decisions written in the last decade, and several of the more notable ones before that. Nor am I a knee-jerk conservative; when the court splits 5-4 I agree with the liberals about a quarter of the time. For example, I strongly support habeas corpus rights even for suspected terrorists. There are some constitutional principles I like, which might get less protection if the Court got more Republican appointees.
I do not doubt that there have been several times when conservative judges have, hypocritically, ruled in accordance with their conservative political principles (which they have no right to do) instead of in accordance with their claimed principle of interpreting the text fairly. But it is better to sometimes fall short of a claimed standard of goodness, than not to have any standard at all. "Living constitutionalism" is just a name for anything goes, it is not actually a coherent standard that one can fall short of.
I am not one of those partisan hacks who believes that somehow one of the two parties has an monopoly on dirty tricks and shoddy reasoning. But I do believe that it makes a difference what our stated ideals are, and that a nebulous gas of constititual flexibility cannot act as a solid foundation for freedom, but principled reasoning from a black-and-white text can.
Now in the last 30 years, nobody has done a better job of promoting the rule of law than Justice Scalia, who has continually fought against all manner of sophistry, and given it the mocking it so richly deserves. More than anything else his opinions, often his dissents, have made Originalism a viable interpretation in the academy. He was not a "rebel without cause"; his cynicism was that of a wounded idealist, who stood for something quite definite. His goal was not to revert decades of precedent back to some imaginary time when the Constitution was followed perfectly (although there are a few specific howlers he would have liked to kill). Instead his goal was to contain the unprincipled exceptions, and to leave the law clearer than he found it.
Scalia was also a tremendously insightful person. Hard as it is to imagine, given the current political environment, he was confirmed 98-0 by the Senate back in 1986. Even jurists with radically different takes on the law recognized that he had some valid and interesting points to make about the law. For example, his warnings on the dangers of relying too much on legislative history to decide what laws mean (if you do that, Congress will notice, and people will try to influence future legal decisions by means of their speeches before the house, subverting majority rule.)
True, his acid tongue made him some enemies. In light of his professed Roman Catholic faith, some might wonder whether his bitter (and sometimes unfair) sarcasm was really compatible with a meek Christian spirit. On the other hand, if we define Christianity by the behavior of Jesus in the Gospels, one could argue that it is actually very Christlike to react with hyperbolic outrage when you see people trying to legalistically distort the rules, in a way that subverts their actual meaning!
Yet Justice Scalia would be the first to admit that there is a distinction between the Kingdom of God and the kingdoms of this world. In comparison with his faith, his life's work to to help improve the American system of law was of minor importance. It would be wrong to reduce him as a person to his role as a judge. His famous friendship with Justice Ginsburg (see elephant below) shows him to have been broad enough to like those who disagreed with his judicial philosophy.
Goodbye, St. Antonin Scalia, and God rest your soul. I will miss you.
Helluva post, Aron.
By the way: I too am one of those sick-in-the-head people who enjoys reading SCOTUS decisions and oral argument transcripts. Have you read http://www.amazon.com/Reading-Law-Interpretation-Legal-Texts/dp/031427555X? I thoroughly enjoyed it.
Just for old times' sake, here is one of my favorite quotes from the great Nino:
What are some of yours?
One might say that the history of USA tells us that it is not possible to avoid rule of men. It is always some particular men that rule. We may reformulate it as "rule of men through laws". or "law-bound rule of men".
All societies are constitutional in a sense, whether or not their constitution is formally written or not. But a society, to be a society, must have its customs and rules by which it runs.
There is an idea of judicial usurpation that has resulted in present sorry state of American laws. Of the states' rights being usurped and nine unelected men ruling over 320 millions.
But I ask did any state complain of its rights being usurped? Did Congress complain that its legislative function was being usurped? Did they attempt to impeach the usurpers?
At least half of the country is pleased with the judicial usurpation and indeed does not regard it as usurpation at all but a proper exercise of the counter-majortian function of the Court. It is arguable that the Supreme Court justices of the progressive bend are merely following the social trends and are no wise creators of it.
Mactoul,
You stated the following:
In my experience, I've yet to encounter anyone who would defend the position that it is the liberal justices themselves who have created these social trends; I think most everyone would agree that they are just following them. And that is precisely the problem!
The role of the judiciary is by no means "to follow social trends." The only way one could arrive at such a conclusion is by embracing the indefensible notion of a "living constitution." Instead, the sole role of the judiciary is to interpret; while it is the legislators who enact. Moreover, "interpret" is a transitive verb: judges interpret texts. Thus, law must be derived from governing texts.
Therefore, if a social trend cannot be properly derived from a governing text, then the judiciary has no constitutional authority to make it law. Consequently, the court has no business even merely following social trends.
Thanks for this post, and for making it so accessible for those of us who haven't read m(any) Supreme Court decisions.
Tim,
Thanks for the compliments.
Mactoul,
Of course I agree that there can be no government of any kind which is not--in some way--filtered through human beings. In that sense all government is "government by men". But that government takes on a qualitatively different character when the men are sincerely trying to interpret the written texts which give them authority in the first place. Otherwise it is all just "will to power".
I agree that one of the dangers of judicial review (even when done properly by the courts) is that the Legislative and Executive branches of government start to think they have no independent duty to obey the constitution, apart from obedience the Judicial enforcement. I would say all the branches of government have an independent duty to obey the Constitution whenever they act within the scope of their own powers. The Judiciary's interpretation is supreme within its own domain (resolving legal disputes between parties who have standing to sue) but not all decisions are readily amenable to such an analysis.
Jack,
Yes, I agree. One minor exception arises with the 8th Amendment, where one could reasonably interpret the of "unusual" as making reference to that which is commonly practiced (in a particular social context). This does not depart from Originalism because that IS the original dictionary meaning of the word "unusual". (This does not mean I agree with all of the progressive "evolving standards of decency" jurisprudence, far from it, but there is at least some wiggle room to consult "social trends" in that specific clause.)
Similarly, in 1789 the word "cruel" did not refer to "that which was commonly regarded as cruel in 1789" (as if they were moral relativists back then); instead it meant "that which actually is, objectively speaking, excessive vengeance". Thus, there is room for a judge in 2016 to strike a punishment down that no 1789 judge would think was cruel, not because the meaning of the Constitution has changed, but because the punishment in question actually is cruel. The 2016 judge, as a human interpreter, has the responsibility to be faithful to the actual true meaning of the constitutional ideal, even if it requires him (horrors) to actually make an interpretation based on his own sense of justice. But this does not mean that a judge is doomed to drift helplessly along with current social mores, since the institutional role of the Judiciary does, after all, involve standing fast to a particular text and tradition.
I know it's a little odd my tribute to Scalia didn't actually include any juicy dissents (and the cases I quoted, he often joined the dissents rather than authoring them), but my goal was more to indicate what is at stake than to deliver a eulogy. It's hard to pick just one Scalia dissent to quote, but a lot of people like PGA Tour Inc. v. Martin, about whether the professional golf rule requring players to walk between holes discriminates against disabled athletes:
Agreed. As a well-known Originalist once noted in Harmelin v. Michigan, "it [unusual] continued to mean (as it continues to mean today) 'such as [does not] occu[r] in ordinary practice,' Webster's American Dictionary (1828), '[s]uch as is [not] in common use,' Webster's Second International Dictionary 2807 (1954)." 501 U.S. 957, 976 (1991)
I respectfully disagree with several aspects of this quote. I think it will be helpful to start with another quote from the aforementioned Originalist before I attempt to explain why:
In determining if a particular practice is in violation of a vague constitutional provision such as cruel and unusual punishment, it seems to me that the most reasonable approach is the one advocated above: look to the understanding of the People—not to that of any judge—who ratified the amendment. If the practice in question is one that remained “universal and uncontroversial in the years after ratification”, then regardless of current social trends, the practice cannot legitimately be held as violative of the provision.
Interestingly, on your proposed definition of cruel there is no possible way to objectively determine if a practice is excessive in its vengeance. There exists no such litmus test and opinions will widely differ; thus some degree of subjectivity will always remain. Consequently, it would seem to necessitate the following question: Is the moral judgement of a 2016 judge more valid than that of a 1789 legislature with respect to the alleged cruelty of the practice? If we say it is, aren't we inviting and supporting "Living Constitutionalism?"
Nevertheless, taking an Originalist approach, we don't encounter that problem because that is not how the word "cruel" was defined by those who ratified the amendment:
You couldn't be more correct when you said,
Jack,
The complete text of the 8th Amendment reads as follows:
The first half of the text is explicitly concerned with making sure that financial penalties are not excessive. Clearly, there is no such thing as an amount of bail or fines which is intrinsically unjust (it would not necessarily be unjust to take a billion dollars away from a billionare, for an offense which caused a billion dollars worth of damage). Furthermore, in light of the change in the value of money over time (and perhaps gaps in the evidence) it would seem very difficult to set amounts of money for different offenses in an objective fashion.
Since, in the case of financial penalties, there is necessarily both a proportionality test and a potentially subjective determination by a judge (constrained of course by precedent from higher courts), by parallelism (a.k.a. Noscitur a sociis) I see no reason why the same should not be true of the word "cruelty". One of them restricts excessive or unjust fines, the other excessive or unjust nonfinancial punishments.
Now Justice St. Thomas contends that the word "cruel" cannot refer to disproportionate punishment, but only rules out certain categories of punishment. But it seems to me that the English word "cruel" is flexible enough to accomodate both meanings. Wouldn't any normal person call a government that executes people for minor offenses "cruel"? I certainly would! Why would the Framers have been concerned with excessive punishment only when the punishment is monetary?
By the first part of the 8th Amendment, it is clear that there is a maximum amount of money which is constitutionally permissible as a fine for some trivial offense such as jaywalking. Suppose a judge decides what this amount is (say $5,000), wouldn't it be outrageously paradoxical to say that the government can't fine this person $10,000, but they can just kill them? A government that did that would be cruel, plain and simple. Just because a lot of applications would be ambiguous doesn't mean there aren't some things which are clearly over the line! (Also, the fact that people in 1789 endorsed capital punishment for offenses which we might regard as not deserving of death, of course does not imply that they thought that all offenses were worthy of death.)
So I would say that the 8th Amendment should be interpreted to include a proportionality test.
(Although, I don't at all agree with the particular theory of proprortionality endorsed in Kennedy vs. Louisiana. The majority opinion made the argument that if we punish murderers with capital punishment, we have to punish crimes which don't rise to the level of murder with a lesser punishment, by "proportionality". But that seems like a bogus argument. (By the same argument, if we execute somebody who kills 217 people, we need to find a punishment 1/217 times as mild for the person who only kills 1 person!) Proportionality should mean that the severity of the punishment isn't grossly disproportionate to the severity of the crime; not there can't be a worse crime which receives the same punishment. Since it is uncontroversial that the 8th Amendment also places a maximum limit on the allowed punishment for any crime (e.g. no death-by-torture), necessarily there will be a certain point where increasing guilt does not lead to an increasing punishment. That this same flat penalty applies to both lesser and greater crimes is not a violation of the 8th Amendment, rather it's the natural result of following it!)
I don't see this as a serious problem. If there is ambiguity, that is why there is a judicial branch. A human being has to decide what is reasonable in each case. When the constitutional provision is vague and there is no controlling precedent, they may consult their own conscience. If the Founders hadn't wanted judges to do that, they shouldn't have put vague provisions into the Constitution. The Founders presumably knew that such ambiguities would probably be resolved by the creation of a consitutional common law tradition.
(Of course, the first line of defense is for Congress and Legislatures to set maximum penalties that are in accordance with human decency, but we are assuming these penalties are now being challenged as unconstitutional, at least as applied to a particular case.)
I know that Justice Scalia was an avid proponent of eliminating ambiguity in legal interpretation wherever possible. While there is something to be said for this as a practical matter, I don't think it should be taken as an overriding jurisprudence. It is certainly not more important than faithfulness to the text. There is nothing inherently bad about a judge having to make the call. What is bad is when judges find ambiguities where there are none, in a way that subverts the structure of the constitutional framework.
I can understand why a conservative justice would acquire a certain degree of paranoia about flexible tests, and I agree with Scalia that consitutional law should be more hard and fast rules, and fewer vague "3 part tests" which can be pragmatically adjusted to fit any situation. (This dispute is called "formalism" vs. "pragmatism", which sometimes leads to interesting 5-4 decisions pitting the far left and far right members of the court against the "moderates".) But squeezing out all ambigutity is neither a necessary nor a sufficient condition for correct decisions.
I think there is a potential failure mode of some kinds of conservative rhetoric, in which opinions are decided based on opposition to whatever the liberals are saying, rather than fidelity to actual conservative principles. When I interpret the Consitution, I want to find the best possible interpretation, regardless of whether it happens to agree with what a "Living Consitutionalist" might say. (As they say, even a broken clock is right twice a day!)
My claim is that a judge ought to (within the framework set by text and tradition) determine whether the punishment really is cruel and unusual. There is nothing in the actual text of the 8th Amendment that establishes 18th century ethics as the definitive norm for resolving such disputes (something which would have been completely useless in the years immediately following the ratification of the Bill of Rights, since at that time all views were 18th century views), except insofar as these 18th century norms are actually embedded in judicially relvant forms such as common law precedents.
As Justice Scalia has argued, the version of Originalism which makes sense is not that we are bound to the original intent of the legislators (something which is invisible and probably different for different people involved) but rather the original meaning of those words.
But in some ways I'm more comfortable calling myself a "Textualist" than an "Originalist", because what matters to me is faithfulness to the constitutional words and structures, not conformity to the social norms of any given year (to my mind, this is just as wrong whether the year is 1789 or 2016; neither is legally relevant.)
I am myself a bit concerned where the debate over the second amendment will now go. I'm British so I have a limited grasp of this. But I believe in Justice Scalia's absence there are now four progressives, three conservatives and one whose some what independent on the Supreme Court. Only four of whom agree with Second amendment right to bare arms for the purposes of self defence (e.g., Heller v Columbia) Obama nominated two candidates for the Supreme court both of whom do not support this right. I support this right absolutely.
Also, I was fairly disheartened by the response people (who were not of Scalia's political persuasion) reacted to his death, such as The Young Turks. As a matter of fact this Friday will be the 3rd year anniversary of the death of a great British conservative Margaret Thatcher. She saved this country from the economic degradation of the 70s and the reaction to her death by her political opponents was pure cruel.
Andrew,
If you are British, they've already taken away all of your guns. It seems very altruistic of you to care so much about what happens on the other side of the pond! Or are you currently living in America? (BTW, no American ever calls our capital "Columbia". If you want to abbreviate it, it's DC.)
Personally I am not a huge fan of gun culture, but that is quite irrelevant since the Second Amendment clearly states that the people have a right to "keep and bear" guns. The liberal readings (that the preface about the militia overrides the plain meaning of the main clause, or that the right is held collectively by the "people" in some way that has no actual legal implications for any individuals) are absurd.
Yes, that seems like a correct assessment of the current composition of the court. Before Scalia died, there were most likely 4 justices who would vote to overturn Roe and disallow racial preferences in public institutions. Kennedy often leans conservative, but swings left on several important social issues. He also voted with the liberals to give suspected terrorists habeas corpus and other due process rights, which in my opinion is a good thing. "Innocent until proven guilty" shouldn't be able to disappear on the President's say-so, just because someone isn't an American citizen.
In my opinion it is unlikely that a court with just one more liberal justice would overturn Heller wholesale. The court is supposed to follows prior precedents except it feels there is a very good reason not to; merely disagreeing with a previous precedent is not enough. While St. Obama's two current appointees are unlilkely to support the right personally, they probably don't take it as personally as those who dissented in Heller. So they might not overturn it just as soon as they got a majority. I might be wrong, but I think it is more likely that they would chip around the edges and try to erode it in the grey areas, rather than overturn it entirely.
Regarding the reactions to the death of St. Thatcher, you may find reading the following more mollifying:
http://slatestarcodex.com/2013/04/12/if-a-clod-be-washed-away-by-the-sea-europe-is-the-less/
http://slatestarcodex.com/2014/09/30/i-can-tolerate-anything-except-the-outgroup/