No Arbitrary Power: An Originalist Theory of the Due Process of Law

A new paper explaining why the original meaning of the "due process of law" requires a substantive process.

|The Volokh Conspiracy |

Evan Bernick and I have just posted the second of our projected three-paper series on "Good Faith Constitutionalism," in which we identify the constraints on government officials who exercise discretionary powers. In our first article, The Letter and the Spirit: A Unified Theory of Originalism–now forthcoming in the Georgetown Law Journal–we consider the constraints imposed on the power of the judiciary to implement the original meaning of the text. In our new piece, No Arbitrary Power: An Originalist Theory of the Due Process of Law, we identify the original meaning of the Due Process of Law Clauses of the 5th and 14th Amendments, and the limits these clauses impose on the discretionary power of federal and state legislatures to deprive people of life, liberty or property. Like some other recent originalist scholars we discuss, we contend that, while the "due process of law," is indeed "procedural," the judicial procedure it guarantees includes a particular kind of "substantive" evaluation of a legislative act to ensure that it is truly a "law." (We differ somewhat from these scholars on the precise scope of this inquiry.) So the distinction between procedural and substantive due process is ultimately misleading and unhelpful to understand the exact nature of the "substantive procedure" that is guaranteed by the due process of law.

The core of our theory is succinctly summarized in this quote by John Locke with which we begin our piece and from which we took our title "No Abitrary Power":

A man . . . cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this.

To be a law, an act of the legislature must not be arbitrary, and a person being deprived of life, liberty or property is entitled to a judicial process in which the abitrariness of a legislative act can be evaluated. Here is the abstract:

"Due process of law" is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment's Due Process of Law Clauses are solely "process" guarantees and don't constrain the "substance" of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there's a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction.

We begin by investigating the "letter" of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses' original function — their "spirit" — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the "due process of law" in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states' reserved powers, acknowledging the flaws in the "police-power" jurisprudence associated with the so-called "Lochner era" and we delineate an approach that will better safeguard all "person(s)" against arbitrary power.

By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators' pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.

Download it here.

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  1. “substantive procedure”

    What unholy abomination have you created *this* time, Dr. Frankenstein?

  2. to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function ? their “spirit” ? of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons.

    Man, I’m liking this new originalism more and more!

    1. “their “spirit””

      Ugh.

      That is why textual-ism is the only proper method of interpretation.

      1. The only sure way to extract all personal preferences, judges should summon the founders and gather round the ouija board. The post does sound like a good alternative, though.

      2. Heydon’s Case addresses this satisfactorily. COTUS is a treaty, and pacta sunt servanda governs. The text is to be interpreted in a manner consistent with the parties’ intent and in that respect, you look to what the contract was intended to do. “Barring arbitrary exercises of power over individuals that rest upon mere will” was the benefit of the bargain.

  3. One of these days, someone will develop an originalist theory that leads to results the author either doesn’t like or would be embarrassed to endorse. I hope to live that long.

    1. It would be nice to see originalists list results they don’t like, but which they feel obliged to reach by their method.

      1. Hear hear, CJ and Eidde

        There is no perfect theory. What we need is a theory that an intelligent college sophomore can understand.
        Why do people insist on logical purity in such an obviously logically impure endeavor?

        1. To be clear, I think all advocates of particular theories of constitutional interpretation should try this one weird trick.

          (In my own view, the originalists would probably do better at this question)

      2. Here’s one: The federal suit against Pennsylvania Supreme Court gerrymandering decision. The Pennsylvania court made a nonsensical decision, but it was not appropriate from an original POV for there to be a federal review of it

        1. Where you stand here is quite obviously a function of where you sit, ARP. lf the gerrymander reduces voting to a meaningless exercise, it constitutes a fundamental breach [English terms] of COTUS, thereby voiding the agreement. Madison elaborates:

          “The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.”

          You can’t disenfranchise your opponents that severely and expect them to accede to your dominance.

          1. Did you read my post?

      3. Been there for years. Hively is at the top of the list; as happy as l am with the outcome, l am not sanguine about judges writing laws under the guise of interpreting them.

  4. ” [B]arring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons.”

    Like “gun control.”

  5. Isn’t it a bit odd to use that quote from Locke, which exists in the context of his argument supporting the supremacy of parliament, as supporting a theory that raises the unelected judiciary above the legislature? Locke is pretty adamant that promulgated established (standing) laws are an essential part of a commonwealth so as to prevent arbitrary treatment. But your argument for substantive due process is an argument for general principle of reason and liberty, quite the opposite of positive law. I would think Locke would have serious issues with how you’ve used his words.

    I would also be curious as to whether your substantive due process argument covers physician assisted suicide, or more simply, the right to die. I ask this because in the same section from (II.135) that you quote Locke he writes, “For no Body can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power over himself, or over any other, to destroy his own Life, or take away the Life or Property of another.” If Locke’s state of nature natural law theory is the core of your thesis supporting substantive due process, then it would seem that it complicates a claim that SDP protects a right to die.

    1. ln many respects, Locke didn’t appreciate the genius of his own work. About the same time, he wrote a screed denouncing Deism, never noticing that he managed to separate natural law from its Thomistic underpinnings. Unlike Hamlet, we can decide not to be in a state of nature, even though Locke regarded this as a crime against Nature and God.

  6. The difficulty with the approach is it merely rephrases the fundamental dilemma in different terminology without solving it. What exactly are the “proper” ends of government? The constitution left the question largely unanswered. And I suggest it did so deliberately. One of the biggest things people have disagreed about, then, now, and all times between, is what government is for. Socialists, libertarians, nationalists, empire-builders, promoters of various stripes of traditional morality (role of government is to promote “virtue”), radical egalitarians (purpose of government is to eliminate inequality), and various others all have radically different ideas of what government is there to do.

    The constitution resolved a few issues, but beyond this, it left the door open. Both nearly-socialist and nearly-libertarian governments, among other options, could exist within the parameters of the constitution. Same with both near-puritans and near-libertines on sexual mores. The constitution says nothing about any of this. The door is open to choose the direction the people, through their elected representatives, want society to go.

    For one of these ideological groups, having won an election and obtained control of the courts, to then impose their own idea of what is the “proper” role of government, and to hijack the courts to this end and usurp the role of democracy and representative government in deciding, is to undermine what the constitution is all about.

  7. (Cont.)

    The constitution determines who gets to decide what, and in establishing rights, sets limits on what government can do. But except in a few enumerated instances (e.g. establishing a religion, a nobility, or slavery), it does not set limits on what government can be for, or what its purpose can be.

    It is otherwise a Rocharch test, deliberately vague and open-ended. People who look into it and see their own picture of what government is supposed to be about are imposing their own will on it, seeing connections between dots created by their own minds, which another person looking at the same picture would not, and need not, see.

    To impose ones own purpose of government on others is to impose ones own permanent will about what society should be. And this is exactly what the Franers sought to prevent any single person or body, especially an unelected one, from doing.

    1. “And this is exactly what the Framers sought to prevent any single person or body, especially an unelected one, from doing.”

      I would like to press the “like” button on this comment and save some digital space. But since there isn’t one in the blog now I guess I’ll just have to say I like it.

    2. ReaderY, that is an excellent comment.

      In the same context, it’s worth noting that Barnett uses “proper” again and again, without as you say defining it, but never in its usual originalist sense. To the founders, “proper,” in context of government, was far more likely to mean “efficacious,” or “capable of delivering the intended result,” than it was to mean what Barnett clearly intends?”conforming to standards,” or some such. Thus, to the founders, “Necessary and Proper” was a way to say what we mean today with “Necessary and Sufficient.”

      And it was entirely unlike the founders to suggest a need to conform to standards without stating explicitly what the standards might be.

      That said, there was one body which the founders intended as the perpetual source of clarity on what government is for. Which, of course, is the sovereign People, invoked in the first 3 words of the Constitution. And because they recognized the People as sovereign, the founders intended the People’s intentions for government to be delivered at pleasure, and changeable at the People’s initiative, without any constraints whatever.

      Which is just a longer way of saying what you said already.

      1. “And because they recognized the People as sovereign, the founders intended the People’s intentions for government to be delivered at pleasure, and changeable at the People’s initiative, without any constraints whatever.”

        Wow! 51% can send the other 49% to the Gulag! Yea!

        1. WJack, to test whether your comment is as revelatory as you seem to suppose, see if you can answer these questions:

          1. When a sovereign constitutes a government, what power can impose limits on what the sovereign may do?

          2. If a power exists to limit a sovereign, why isn’t that power the actual sovereign?

          3. Where does the power to limit a limited government come from?

          4. Can a nation without a sovereign endure? Can you think of any such instance in history?

          5. Assuming an instance where 51% can send 49% to the Gulag, as a matter of fact, what does it add to understanding to pretend that they can’t?

      2. “without any constraints whatever”

        Completely false. Among other things, the amendment process is a massive constraint.

        Limits on things like ex post facto laws and the rights in the Bill of Rights are significant constraints as well.

        1. Bob, the Constitution is not the nation’s sovereign, it is the sovereign’s decree, constraining government, but not the People themselves. The amendment process is a constraint on the government only, not a constraint on the people.

          Only the sovereign People may decide the purposes of their government?something they remain as free to do today as at any time in the past?when in some instances they acted through government using the amendment process, and in other instances they did not, just as it pleased them to do.

          1. Stephen,

            Looking at your comments and questions it is clear that the last best hope for this country is the corner stone of the Bill of Rights, i.e., the Second Amendment . . . the last guarantee against tyranny.

            1. Don’t worry, Jack. It’s not as bad as you think. The reason you don’t like sovereignty as an issue, and can’t answer my questions, is because the founders in effect mooted those questions when they invented American-style popular sovereignty. That worked so well, and was so widely and successfully copied, that it’s now not only possible, but likely, for people to grow up and participate in politics without ever wondering about what power protects their rights, where the root of government power really resides, or how governments get constituted.

              So most probably, the Gulag questions, and other similar outlier worries won’t come into play. If they do, then everyone can go back to reading the founders, whose views on sovereignty I have been offering you. Long experience suggests that pretty soon, that would put the nation back on track.

            2. Oh, and by the way, that guarantee you suppose you get from the 2A? That’s only as good as the sovereign power which backs it up.

              If what you suppose you don’t like is sovereign power itself, and you point to the 2A as your remedy, you’re in a logical pickle you can’t get out of. You’ll still have your human right of revolution, of course. But calling it a right over-dignifies it. It mainly means if you are willing to lay your life on the line, nobody can stop you. So go into that with your eyes open.

              First, you’ve got to get enough folks on your side to win?a doubtful prospect. If you do win, you’ve long-since thrown the Constitution and the Bill of Rights overboard. Why would you suppose your newly-sovereign co-revolutionists will see fit to re-constitute those? How do you know you are going to like whatever government the revolutionary sovereign does constitute?

              As a matter of history, many victorious revolutions fail shortly thereafter?with an extended period of chaos one of the commoner follow-ons. Good luck.

    3. I think we may be quite confident that Barnett has clear ideas of what the proper ends of government are, and that he thinks they are few.

    4. The difficulty with the approach is it merely rephrases the fundamental dilemma in different terminology without solving it. What exactly are the “proper” ends of government?

      The more basic issue is whether the Due Process Clause was truly intended to give the courts the authority to strike down legislation on policy grounds, because the legislation was not “fundamentally fair,” or because the ends of the legislation were not “proper” ends of government, or whether the Due Process Clause only guaranteed procedural rights, without which there could be no deprivation of life, liberty, or property.

  8. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends.

    But doesn’t the Constitution address constitutionally proper ends specifically?

    No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.

    It would seem that by Randy’s analysis the “bill of attainder” prohibition was superfluous since this was handled by the due process clause. Or am I misreading him?

    His thesis also does not seem consistent with the views of Alexander Hamilton, who said:

    The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.

    1. If the Due Process Clause “imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends,” does this mean that without the Due Process Clause courts would have no authority to declare a statute unconstitutional?

      Section 9 of the Constitution lists powers that were denied to Congress, such as passing bills of attainder. Under Randy’s view, were courts nevertheless required to enforce statutes exercising such powers prior to the ratification of the Fifth Amendment Due Process Clause?

  9. It would seem that by Randy’s analysis the “bill of attainder” prohibition was superfluous since this was handled by the due process clause. Or am I misreading him?

    Well, it might be true, but the prohibition on bills of attainder is in the body of the constitution, which of course predates the BOR, so the former wouldn’t have been superfluous at the time it was passed.

    1. Well, it might be true, but the prohibition on bills of attainder is in the body of the constitution, which of course predates the BOR, so the former wouldn’t have been superfluous at the time it was passed.

      That’s true. But can we agree that the protections of the Sixth Amendment cannot have been intended to be protected by the due process clause of the Fifth Amendment? Because if they were, then the Sixth Amendment was redundant:

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

  10. Originalism is not unlike Chesterton’s Christianity: “Christianity has not been tried and found wanting; it has been found difficult and not tried.” Barnett is as guilty of outcome-based jurisprudence as Bork and Scalia; follow him on Twitter, and you learn to your dismay that he is a full-time conductor on the Trump Train.

    Two questions need to be asked. First, just what is originalism? Distilled to essentials, it is a rational, principled, transparent, and repeatable way of interpreting anything from the Bible to your grocery list. Technically, COTUS is a treaty. A binding contract between co-sovereigns. Every word has meaning–even the more abstruse terms of art like “good behaviour” and “due process of law.” The meanings are all found in English law, and one rarely needs to go further than Blackstone. The boys have traced DP to Magna Carta, and you could probably trace it to King Alfred.

    lf the Case of the Speluncean Explorers taught us anything, it is that if you are doing it right, you are going to get answers you won’t like. Number One on my list is Scott v. Sandford; the flaw wasn’t in the analysis, but COTUS itself. Based on his Twiter, Randy Barnett is an extreme Ayn Rand acolyte who despises the administrative state, but the Framers understood agency and allowed for it. Randy’s solution is to go Full Frontal Scalia, ignoring the originalist path in exchange for his outcome-based jurisprudence. [cont.]

    1. [cont] To answer CJ Colucci: As for cases where originalism doesn’t yield the result l prefer, Hively might be the most prominent. As much as the outcome comports with my personal sense of justice, l recognize that there is no way any originalist theory can reach that result.

      Originalism often yields surprising results. For instance, whereas the scope of congressional authority to enact laws is expressly limited, there are no limitations on the scope of a treaty. Ergo, if you want to provide universal health care, all you have to do is enter into a treaty requiring it (we have signed one), and it becomes the law of the land. Art. Vl, cl. 2. As Barnett has conceded, there is a straightforward originalist path to the modern view of both SSM and abortion, as well.

      The second Q: What’s the alternative? As Harvard’s legendary Raoul Berger–the original originalist–pointed out several decades ago, it is judocracy. Our lawless judiciary has raped, beaten, and sodomized Lady Liberty to the point where COTUS is scarcely more than a polite suggestion. The Seventh and Eleventh Amendments are mere husks, and the Good Behaviour Clause (restraining judicial lawlessness) has been reduced to an inkblot. The Bill of Rights is void for want of meaningful enforcement, and the Framers’ safeguards against abuse of the judicial office are rent and tattered. As bad as you think originalism is, the status quo ante is demonstrably worse.

      1. The status quo ante leaves many questions of fact and policy to the discretion of the political branches. Near as I can tell, Barnett’s originalism insists that political branches get dispositive say on nothing at all, (except maybe their own rules). I’m having trouble imagining any demonstration which proves the former worse than the latter. Help me out if you think you can.

        1. To best respond, l’ll import Richard Strauss.

          Strauss: “For an originalist, the command was issued when a provision became part of the Constitution, and our unequivocal obligation is to follow that command. But why?”

          Because the alternative is that “my Ruler [would be] a majority of the nine lawyers on the Supreme Court.” Obergefell v. Hodges, 576 U.S. ___, ____ (2015) (Scalia, J., dissenting; slip op. at 2).

          Abraham Lincoln summarizes the problem ably: “[N]o man is good enough to govern another man, without the other’s consent.” Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. We have a document in hand [the Declaration of Independence] declaring our lack of consent. If you would not willingly suffer my absolute rule, by what right do you claim absolute rule over me? See, John Dickenson and Thomas Jefferson, Declaration of Causes and Necessity for Taking Up Arms, Continental Congress (U.S.), Jul. 6, 1775.

          By stark contrast, it is logically impossible for me to tender effective consent to the Living Constitution, as l have no idea what is in it. And neither do you. We can read the laws until we go blind, but we cannot rely on them. We literally endure a regime of “unknowable law,” wherein even the hidebound pronouncements of the United States Supreme Court barely even qualify as polite suggestions.

          Under a living Constitution, words mean nothing and doctrine, even less.

          1. What is the proper reach of the judiciary under originalism? lf l have a right, l must have an effective remedy in case of breach. Barnett’s argument–which l find unassailable–is that rights are retained unless ceded. The equation, first expressed by Hobbes, was that we gave up certain of our natural rights and assumed certain responsibilities in exchange for a portfolio of “civil rights” (more properly, remedies within a society, with the purpose of protecting the rights we retained. As the only practical remedy for the individual is in a courtroom, the courthouse must be open to aggrieved parties.

      2. Originalism often yields surprising results. For instance, whereas the scope of congressional authority to enact laws is expressly limited, there are no limitations on the scope of a treaty. Ergo, if you want to provide universal health care, all you have to do is enter into a treaty requiring it (we have signed one), and it becomes the law of the land

        That… might be something, but it isn’t originalism.

    2. First, just what is originalism? Distilled to essentials, it is a rational, principled, transparent, and repeatable way of interpreting anything from the Bible to your grocery list.

      You failed to answer your own question.

      Originalism as you understand it may or may not have all those virtues, but your answer neither defines it, nor specifies how it is to be done, nor explains why it is the appropriate method of interpretation, as opposed to others which have the virtues you list.

      Further, I find it dubious – well, wrong – to argue that the correct methods of interpreting the Bible and a grocery list are the same as each other, or those appropriate for interpreting the Constitution.

      1. Words have meaning … and when your wife texts you and tells you to pick up oranges, she probably doesn’t mean apples. lt is the difference between exegesis and eisegesis. When we read “X,” we presume that the author really did mean “X,” and in a contract, we can’t have the requisite meeting of the minds unless both of us understood that “X meant X.” And if a statute in 1791 used the word “gay,” it is a safe bet that it was not meant to convey “homosexual.”

        The singular virtue of originalism is that it avoids the fatal flaws of other methodologies. To say that the law is what the judges say it is is to embrace a judocracy. As for the Bible, l will address this in the next installment.

        1. Riddle me this: What DlD the Endeka do in the immediate aftermath of the Crucifixion (and the purported Resurrection)? Did they go back to their day job in Galilee (Matt/Jn. 21:1-14), or stay in the environs of Jerusalem and start a commune?

          There is no exactly evidence in Luke/Acts that they ever left the environs of Jerusalem, and compelling evidence that they did not:

          “Then they worshiped him and returned to Jerusalem with great joy. And they stayed continually [Gk. dia pantos] at the temple, praising God.” Lk. 24:52-53

          “He appeared to them over a period of forty days and spoke about the kingdom of God. On one occasion, while he was eating with them, he gave them this command: “Do not leave Jerusalem, but wait for the gift my Father promised, which you have heard me speak about.” Ac. 1:3-4.

          And they could not do both. Law of Non-Contradiction. 100 miles by foot, either way (remember, Judas had the common purse).

          The purported “witnesses” couldn’t keep their stories straight. For the very same reason that the prophet Daniel was able to preserve Susanna’s honor [Catholic canon], we must conclude that the Gospel authors are liars. Oooooops!

  11. LawDog,

    In the context of Constitutional Law:

    Supreme Court Justice Antonin Scalia defined “originalism” this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

    https://www.npr.org/2016/02/14/466744465

    1. Scalia had neither the self-awareness, nor the modesty, nor the expertise in historical technique, nor the reading among historical sources, to suspect that he himself was numbered among the millions who have no choice. Asking himself what the Constitution meant when it was adopted, Scalia answered instead with his opinion of what current society thinks the Constitution ought to mean. As the Heller decision proves, that’s all Scalia knew?and he was unaware that it was all.

      Historians, who pickle their brains by reading original historical sources for years, acquire in the pickling process the wisdom to make that choice, or to know in which cases to avoid making it. Scalia, and Barnett too, and lawyers generally, are loathe to take historians’ counsel. Probably it doesn’t matter much. Consult historians, and originalism would in most cases founder anyway, among the shoals of their uncertainties. But would-be originalists who actively spurn historical expertise will drive the theory directly onto the rocks, by the shortest course possible, every time.

      1. On the bench, Scalia was about as faithful to his originalism as Tiger Woods was to ex-wife Elin. Barnett and Eric Segall agree here–one of the few things they agree on.

        Richard Posner is the Donald Trump of judges: There seems to be no filter on that tailpipe. In Slate, he asserted that he sees “absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation.” He avers that there is “a pronounced political element in the decisions of American judges,” and that the evidence of this is “overwhelming.” Posner, How Judges Think at 369. Scalia?who was just as blunt?added that his own Court was often tempted toward “systematically eliminating checks upon its own power; and it succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).

        Most of the apparent problems with originalism were answered in Heydon’s Case, which the Bs addressed capably. When you look at the document and ask, “What were they trying to do?” you don’t often need to get lost in historical debate.

        Here’s the question you have to answer: Would you rather be ruled by an objective document, or the whims of (wo)men in black robes?

    2. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

      This is meaningless. “What it meant when it was adopted” can mean different things. Does “cruel and unusual” mean what was considered then to be cruel and unusual, or does it actually mean “cruel and unusual,” today? “The word “unusual,” after all implies a context. Things are not unusual in the abstract.

      And of course the Constitution no doubt meant different things to different people even at adoption.

      1. Lack of precision is the bane of the draftsman. That having been said, the meaning of “unusual” hasn’t changed since 1791.

        Your objection consumes itself. Forcing me to listen to country music would constitute extreme cruelty. 🙂

        1. But would it be unusual? There are, after all, those (not including me) who listen to it voluntarily.

      2. This is meaningless. “What it meant when it was adopted” can mean different things. Does “cruel and unusual” mean what was considered then to be cruel and unusual, or does it actually mean “cruel and unusual,” today?

        Historically, the Eighth Amendment was understood to bar only those punishments that added ” ‘terror, pain, or disgrace’ ” to an otherwise permissible capital sentence. Baze v. Rees, 553 U. S. 35, 96.

      3. And of course the Constitution no doubt meant different things to different people even at adoption.

        What were they trying to accomplish by prohibiting cruel and unusual punishment? Wasn’t it to prohibit punishments that they then regarded as cruel and unusual? Suppose X punishment seemed to them at the time to be in the category of cruel and unusual. Were they saying that, nevertheless, X punishment could be inflicted in the future as long as the future society no longer considered it cruel? Would it really act as any kind of a practical limit on the kinds of punishments that could be inflicted? Isn’t it more likely that they were trying to establish some absolute ceiling?

        1. What were they trying to accomplish by prohibiting cruel and unusual punishment? Wasn’t it to prohibit punishments that they then regarded as cruel and unusual?

          I’d say it was to prohibit cruel and unusual punishments. They surely had in mind banning some that were then used, but that hardly means that banning those was the limit of their purpose.

    3. l actually quoted that to Antonin Scalia. And he was right. Thomas Jefferson adds: “Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. If [public officials’ powers are boundless] then we have no constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.” Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2. To put it simply, either the Constitution is dead, or our Republic is.

  12. Some here seem to think the Constitution means whatever 5 Justices think it should mean which, of course, makes it meaningless. Two moreTrump appointments to the Supreme Court will be a huge step toward the goal of making this country great again.

    1. lf you don’t mind this old Goldwater Republican asking….

      How is running trillion-dollar deficits for as far as the eye can see “making America great again”?

      How is Agent Orange showing overt servility toward Daddy Vladdy “making America great again”?

      And how is making the world safe for polluters of the air and water “making America great again”?

      And how do you actually define “making America great again”? When America was great, we had a top tax rate of 90%, aggressively funded the public commons, had a more-or-less balanced budget, and had a GlNl score of about 0.30. We had smart and competent leaders with moral compasses, as opposed to the rogues’ gallery which slithered in with Dolt.45.

      Pack the Court, and it will be re-packed in 2021. lmagine a Court with 19 Justices, with almost half appointed by Dems. And we can justify trebling the size of the lower courts with ease. This is a war you don’t want to fight.

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  14. It is that “goodwill” and ‘legislation that does things that it is supposed to’ thing that is indeed always the problem. If everybody would just act right; And not like talking animals…Words are only words. Which are only models & metaphors. Subjective understanding is going to have to slip in somewhere. There are power driven, predatory, players & forces fighting to control the weaponized language of laws & institutions that define & moderate our society. More layers of legal jargon, or using subjective judgement on the philosophical or rhetorical purpose of the legislation, is not going to fix what is wrong in our government. Or how laws & that much cited “Rule of Law” actually play out in real life. What exactly is the difference between rule by the strongest group of armed fighters, and rule by the group that has amassed enough power to control the system, and capture legitimate power. Like whether the congress exercises oversight of the executive branch or not. Or the marijuana laws, that have always been based on lies & persecution. Or who the police & courts can abuse with impunity and who has the power to prevent that. I don’t see this intellectual exercise actually having much relation to the real legislative process. Or finding the word/text vs. intangibles balance.

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