Adam Freedman has this book review in the City Journal with the above subtitle. The title is Against Judicial Activism, and he reviews The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen.
It is interesting to compare the views of the the reviewer, the reviewed, and myself on the basic principle and specific applications. Freedman says, "The Paulsens are at their best when critiquing the modern era of judicial activism. In their telling, the Warren Court (1953-69) produced 'careless' decisions, because the justices were focused on achieving policy goals rather than upholding the law." Not sure I would have used the word "careless," but otherwise we are all agreed on that. I shake my head whenever I hear activist justices such as Warren, Douglas, Brennan, and Marshall referred to as defenders of the Constitution. In fact, they were gross violators of Constitutional Right Number One -- the right of the people to govern themselves through the democratic process. Any time a judge usurps to the judiciary a question of policy that the Constitution actually leaves to the people, he violates the Constitution every bit as much as the notorious Sheriff Screws did. The subheading of the review, which I chose to be the title of this post, is exactly right.
It is interesting to compare the views of the the reviewer, the reviewed, and myself on the basic principle and specific applications. Freedman says, "The Paulsens are at their best when critiquing the modern era of judicial activism. In their telling, the Warren Court (1953-69) produced 'careless' decisions, because the justices were focused on achieving policy goals rather than upholding the law." Not sure I would have used the word "careless," but otherwise we are all agreed on that. I shake my head whenever I hear activist justices such as Warren, Douglas, Brennan, and Marshall referred to as defenders of the Constitution. In fact, they were gross violators of Constitutional Right Number One -- the right of the people to govern themselves through the democratic process. Any time a judge usurps to the judiciary a question of policy that the Constitution actually leaves to the people, he violates the Constitution every bit as much as the notorious Sheriff Screws did. The subheading of the review, which I chose to be the title of this post, is exactly right.
That is not to say that all of us agree on every application. The Paulsens attack Hammer v. Dagenhart (1918) as a case of judicial activism. That decision struck down an act of Congress prohibiting interstate commerce in the products of child labor. Freedman asserts that the decision was correct. I'm with the Paulsens. Selling stuff across state lines is the very heart of "interstate commerce," and the act was well within the power of Congress to regulate that commerce.
Freedman is on firmer ground when he criticizes the Paulsens' endorsement of the New Deal decisions as a restoration, when those decisions actually went too far in the other direction. Wickard v. Filburn (1942) (my least favorite opinion by my favorite justice) held that the interstate commerce power included regulation of how much wheat a farmer could grow for his own use. That was a bridge too far, and much legislation that threatens to completely obscure the federal-state separation has been built on it.
Some people defend "judicial activism" by redefining it as any judicial decision declaring a statute unconstitutional. George Will is particularly notorious for this. That is a straw-man argument. Judicial activism is declaring that a provision of the Constitution means something clearly different from the meaning it was understood to have at the time of its adoption in order to advance the policy preferences of the judges. It is a usurpation of power by the judiciary, a violation of the Constitution, and a violation of the people's fundamental right of self-government. As Chief Justice Marshall clearly laid out in Marbury v. Madison, the superiority of the Constitution over statutes in the hierarchy of laws comes from the people's role as the sovereign and the source of all legitimate authority, with the legislature having subordinate, delegated authority. It necessarily follows that the superior law is the one the people understood they were enacting, not one made up later by judges.
What is the opposite of judicial activism? For lack of a better term, I will call it "judicial passivism." That is where a judge enforces a statute that is clearly beyond the legislative power as originally understood. Wickard v. Filburn is the prime example.
A lot of folks in the libertarian camp are today denouncing what I call judicial passivism, but they need to avoid going to the opposite extreme. Each provision of the Constitution needs to be enforced as the people understood it at the time they ratified it. If you want additional constitutional restrictions on government, you need to propose an amendment.
Freedman is on firmer ground when he criticizes the Paulsens' endorsement of the New Deal decisions as a restoration, when those decisions actually went too far in the other direction. Wickard v. Filburn (1942) (my least favorite opinion by my favorite justice) held that the interstate commerce power included regulation of how much wheat a farmer could grow for his own use. That was a bridge too far, and much legislation that threatens to completely obscure the federal-state separation has been built on it.
Some people defend "judicial activism" by redefining it as any judicial decision declaring a statute unconstitutional. George Will is particularly notorious for this. That is a straw-man argument. Judicial activism is declaring that a provision of the Constitution means something clearly different from the meaning it was understood to have at the time of its adoption in order to advance the policy preferences of the judges. It is a usurpation of power by the judiciary, a violation of the Constitution, and a violation of the people's fundamental right of self-government. As Chief Justice Marshall clearly laid out in Marbury v. Madison, the superiority of the Constitution over statutes in the hierarchy of laws comes from the people's role as the sovereign and the source of all legitimate authority, with the legislature having subordinate, delegated authority. It necessarily follows that the superior law is the one the people understood they were enacting, not one made up later by judges.
What is the opposite of judicial activism? For lack of a better term, I will call it "judicial passivism." That is where a judge enforces a statute that is clearly beyond the legislative power as originally understood. Wickard v. Filburn is the prime example.
A lot of folks in the libertarian camp are today denouncing what I call judicial passivism, but they need to avoid going to the opposite extreme. Each provision of the Constitution needs to be enforced as the people understood it at the time they ratified it. If you want additional constitutional restrictions on government, you need to propose an amendment.
I am eager to hear, Kent, if this means the Eighth Amendment cannot now be interpreted to limit some extreme physical punishments that the Framers endorses. Thomas Jefferson, for example, had these punishment proposals for Virginia in 1778:
"Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....
"Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer."
I think it plain that the Eighth Amendment "as the people understood it at the time they ratified it," would not preclude physical castration of one found guilty of sodomy or breaking the nose of someone who broke another's nose in a bar fight. Are you asserting that a new constitutional amendment needs to be proposed to guard against the possibility of a legislature now adopting such a punishment scheme?
Notably, Justice Scalia has generally avoided answering this kind of question by saying it will never come up. But I am wondering, especially given your Eighth Amendment expertise, whether you have concerns about originalism in this context.
Relatedly, and much more timely/practical, the Framers and adopters of the Eighth Amendment clearly imagined (and sometimes seem keen to embrace) very painful execution methods. Do you think the constitutional standard adopted in Baze is an example of improper Eighth Amendment activism?)
Judicial review of the constitutionality of laws is just an extension of the supremacy clause and the associated concept of pre-emeption.
The supreme court holding law X is unconstitutional is really no different than a Central District of California judge holding that California law X had been pre-empted by federal law Y.
The better criticism of judicial review is simple --- judges and justices incorrectly interpreting the constitution. Personally I believe incompetence has a lot more to do with this than people think. Bad decisions aren't always ideological.
Kent,
After you affirm that you are not in favor of an unadopted colonial punishment proposal from 237 years ago, please also certify that you have stopped beating your wife.
Thanks,
Bill
Sorry, Bill, I'm not taking homework assignments at this time.
Oh, phooey.
It is interesting that Douglas wants to use, in Bill's words, an "unadopted colonial punishment proposal from 237 years ago" as a cudgel against Kent.
In relation to "incarceration nation", Douglas constantly (and incorrectly) claims that the first generation of American leaders were against prison and for public shaming and wants us to use those "punishment proposals from 237 years ago" today instead of prison.
Perhaps Doug can clarify this glaring inconsistency.
The other thing that struck me about Doug's comment is that it calls on Kent to square an Originalist approach to constitutional interpretation with a provision put forward years before the Constitution was even envisioned, much less ratified.
I had previously thought that, in order for something to be looked upon as an "original" part of the Constitution, it at least had to BE IN the Constitution.
Oh well.
Snide comments aside, I am eager to understand how Kent or others interpret and apply the Eighth Amendment from an originalist perspective. I brought out the Jefferson proposal to help highlight, perhaps too dramatically, that public views about both crime and punishment have evolved considerably since the Constitution was adopted. Since originalists tend to assert that the Constitution does not evolve, I would like to hear more from Kent or other originalists how they would interpret and apply the Eighth Amendment in modern times.
Significantly, the nation's most prominent and vocal orginalist, Justice Scalia, has generally avoided discussing this issue fully AND his opinion in Plata seemed to suggest that some evolution in how laws get interpreted can be justified by the modern realities of crime and punishment. Without Justice Scalia providing a helpful account of his originalist views, I was hoping to hear more from Kent or others (especially since Glossip might, arguably, be a very easy case for a "true" originalist).
Meanwhile, I am eager to hear from Tarls about having "constantly claim[ed] that the first generation of American leaders were against prison and for public shaming." I am not aware of ever making such a claim. I have stated the historical (and I still think accurate) fact that modern mass prisons were largely unknown to the Framers (although the Jefferson bill shows it was known and embraced in some arenas) AND that the Framers were comfortable with a lot of physical and social punishments that we now seems squeemish about. And I have claimed that, due to the Framers' apparent commitment to freedom and human dignity, they might not like a lot of what they see in the modern American criminal justice system.
Not sure if that explains whatever inconsistency you think you see, Tarls, and I would be especially eager to hear your views (and others) about just what kind of modern criminal justice system the Framers would embrace and advocate for. I feel pretty comfortable saying the Framers would not have wanted us to have decades of litigation over how we carry out lawful death sentence for murderers, so I do not think I am being inconsistent when I say I think the Framers would have been fine (perhaps quite eager) to see a lot more executions and a lot fewer LWOPs.
But, again, the point of my question for Kent was not to explore or ask about the Framers' punishment policy preferences, but to better understand how an originalist would unpack the Eighth Amendment in modern times given the significant evolution in societal views as to crimes and punishments.
At some point, I may choose to invest the time to post on those questions, but not today, and not in this thread.
Douglas stated: "Meanwhile, I am eager to hear from Tarls about having "constantly claim[ed] that the first generation of American leaders were against prison and for public shaming." I am not aware of ever making such a claim."
It has been a constant theme of yours (incorrectly) that long-term incarceration in prisons="bad."
Examples in only one post by you: "...so I suspect the framers did not have reason to think much about the prospect of caging offenders like animals but keeping them alive and caged as long as possible."
"But Patrick Henry motivated a lot of Founding era folks with his stirring assertion ""Give me liberty, or give me death!" That leads me to believe the framers likely would have viewed LWOP to be a punishment worse than death."
"...so I suspect extreme long terms of incarceration might well have been a kind of "Cruel and Unusual" punishment the framers would have frowned upon."
http://www.crimeandconsequences.com/crimblog/2015/05/abolitionism-runs-out-of-steam.html#comments
I could surely go back and find where you have stated that you also prefer that SHORTER prison sentences be replaced with "public shaming" and other more "creative" measures (which keep bad people on the street), but I think this proves my point well enough.
You stated: " I have stated the historical (and I still think accurate) fact that modern mass prisons were largely unknown to the Framers (although the Jefferson bill shows it was known and embraced in some arenas) AND that the Framers were comfortable with a lot of physical and social punishments that we now seems squeemish about."
Some of this may be technically correct but it has to be completely unmoored from history to make sense.
Of course they were not familiar with "modern mass prisons", the late 18th and early 19th centuries were not modern times.
However, they were clearly moving away from social punishments and TOWARDS prisons. This is clear in both England, colonial America, and post-revolutionary America.
From a previous post from me to you (same link as above) that you ignored at the time:
"America was moving in that direction (towards prisons and away from shaming and the DP for offenses less than the most serious) for most of the previous 100 years. Groups like the Quakers had been pushing incarceration instead of the DP since the late SEVENTEENTH century, a full 100 years before the constitution. In the late 18th century, there were pushes for workhouses (called "bridewells") such as they had in England for centuries. There were numerous examples of jury nullification because people could be executed for minor crimes that jurors saw as overly harsh. Shaming, your other favorite, had fallen out of favor by 1700, as the rise of large cities made it mostly ineffective.
In the years following the Revolution, states were reducing the number of DP eligible crimes and substituting with prison and hard labor. For example, Pennsylvania did so in 1786 and in a few years only murder was left as a DP offense. In 1776, Jefferson tried to revise Virginia law to do the same but failed by one vote.
In short, your premise that the founders were anti-prison is an absurdity and a molestation of history. They were moving from virtually no prisons TOWARDS the prison system, not away from it.
"The design of punishment is said to be,—1st, to reform the person who suffers it,—2dly, to prevent the perpetration of crimes, by exciting terror in the minds of spectators; and,—3dly, to remove those persons from society, who have manifested, by their tempers and crimes, that they are unfit to live in it." -Benjamin Rush, signer of DoI"
Tarls, I have said --- and still believe --- the Framers likely would have opposed LWOP and would have preferred the death penalty to LWOP. That is nowhere close to a claim that the Framers were anti-prison. Moreover, the historical realities you point to arguably support the claim made by some abolitionists that a world with LWOP justifies, from a Framers' perspective, eliminating the death penalty altogether.
Again, I do not think I have anywhere asserted the Framers were anti-prison or pro-shaming as a policy matter. (For the record, I am personally pro-shaming and anti-prison for low-level, non-violent crimes as a policy matter because I think such an approach to punishment could be more effective and more efficient.). What I have said is that a true originalist likely would find no constitutional problems with shaming, or painful death sentences, or severe corporal punishment or manning punishments or determinate prison terms because these were all viewed as standard (not cruel or unusual) punishments throughout the Framing Era. But LWOP, which did not become a usual punishment until the 1970s, arguably would strike the Framers as cruel and unusual.
And all this gets to the heart of why I want to hear more from Justice Scalia and Kent and other originalist about how to apply the Eighth Amendment in modern times. Perhaps I will in the coming Glossip opinions, but Kent's discussion of originalist and judicial activism in this main post led me to ask about his views. I continue to eagerly await hearing more from him or others on this issue. I am not an originalist when it comes to constitutional interpretation --- I am more of what I consider a "pure textualist" --- and so I am just looking for more understanding of the originalist perspective(s) on the Amendment I spend the most time thinking about
The one constant is that at no time in our history has anything close to a majority of the Supreme Court viewed the death penalty as a per se violation of the Eighth Amendment, and there is no compelling evidence that a single sitting Justice takes that view.
The death penalty had more opponents on the Court 20, 30 and 40 years ago than it does today.
To the extent I think about methods of execution, the Court's opinion in Baze does not seem incorrect from either an Originalist or textualist perspective. I agree with Justice Thomas that the Eighth Amendment was concerned with methods of execution (like burning at the stake or drawing-and-quartering). If that view is correct, it is not activism for the Court to speak to methods of carrying out the death penalty; indeed, that is the heart of what Eighth Amendment cases ought to be about.
I share your view, Bill, that the Eighth Amendment was envisioned by the Framers and ratifiers to put some limits on carrying out a death sentence through extreme painful and torturous means. But I also think that the Framers and ratifiers would have been quick to say that, as long as a government is reasonably trying to avoid torturing the condemned, then any pain that might occur in the process is just a permissible component of carrying out a plainly constitutional punishment.
It will be interesting to see if Glossip leads to any criticism of the Baze standard or just different interpretations of its application. But if you, Bill (and Kent?) Baze as consistent with an Originalist approach to the Eighth Amendment, then it is should be hard for you to unduly criticize abolitionist activists for their "guerrila war" against the death penalty from a Framers' perspective. After all, the Framers made great use of "guerrilla warfare" in Boston and elsewhere to highlight their concerns about misuse of government powers. Arguably, abolitionist activists looking to exploit what Baze says to bring down capital punishment may reasonably claim to be carrying forward the Framers' tactics in a modern setting.
P.S. I believe, Bill, you have criticized me in the past for not correcting what you saw as false statements made by commentors about your positions. I am hopeful you will say something here about Tarls making what I see as false statements about my positions.
Hmmm.... still no correction(s) from Tarls (or any call for one from Bill) about the obvious misrepresentation of my positions and my statements about the Framers. No big deal, though it does reinforce my fear that Bill's prior stated oft-concern about comments that "misrepresent [another's] position ... [or] put words in [another's] mouth by whatever rhetorical device" only applies to certain commenters.
Since you have already clarified what your position is, I don't see much to add. I don't think TarlsQtr was intentionally misrepresenting your position or making a "straw man fallacy" argument. It seems to me that he was merely mistaken about what your position was.
Fair enough, Kent, and I appreciate the straightest shooter at C&C putting me straight in this setting. And I continue to sincerely appreciate all that you all do in this space (and I also sincerely look forward to any future discussions of Eighth Amendment originalism, especially post-Glossip).