For
decades, Supreme Court justices have been rewriting key parts of our governing
document.
by Richard
A. Epstein
The United
States Constitution is at its core a classical liberal document. But over the
last hundred years, much of it has turned into a progressive text thanks in
large part to Supreme Court justices who interpret it creatively, thereby
skirting the laborious amendment process of Article V. Here, I
address one major, if underappreciated, cause of the problem—the fine art of
making its critical words and letters just disappear through the Court’s
imaginative application of its power of judicial review. This constitutional
disappearing act does not take sides in the longstanding debate over judicial
restraint and activism. In some cases, it unduly expands judicial power; in
other cases, it wrongly contracts it. The two best illustrations of how this
process works are found in the Eighth Amendment and in Article 1, which sets
out the federal government’s taxing power.
Cruel and
Unusual Punishments
The Eighth
Amendment reads in full: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” Its use of the
passive voice creates an interpretive ambiguity. Does the amendment bind only
the federal government or does it bind the states as well? Using the word
“excessive” twice in one 16-word sentence is not a model of clarity.
But for
these purposes, the most critical word is “punishments.” The letter “s”
has disappeared during the arduous process of constitutional interpretation.
Just Google the phrase “cruel and unusual punishment,” and 1,740,000 entries
come up. Add the “s” and that number drops by 80 percent to 330,000 entries,
most of which refer to punishments without the “s.”
The
importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime
sentence for a fourteen year-old guilty of murder. In writing her opinion,
Justice Elena Kagan included the “s” in quoting the clause. But during the
analysis, that “s” disappears, thereby transforming the constitutional text:
The Eighth
Amendment’s prohibition of cruel and unusual punishment “guarantees individuals
the right not to be subjected to excessive sanctions.” That right, we have
explained, “flows from the basic ‘precept of justice that punishment for crime
should be graduated and proportioned’ ” to both the offender and the
offense.
Justice
Kagan faithfully references earlier cases that take her position. But the
wealth of precedent does not conceal the major shift in constitutional focus.
The prohibition against “cruel and unusual punishments” conjures up a list of
punishments that should be rejected because they are cruel, no matter what the
offense. The issue of proportionality never arises.
That
interpretation makes sense because this clause is lifted word for word from the English Bill of Rights of 1689,
after it accuses the deposed King James II of inflicting “illegal and cruel punishments.” The clause outlaws the
rack, the thumb-screw, drawing and quartering, and other fiendish activities.
In no sense did it outlaw the death penalty. Nor could that reading be sensibly
made of our own Constitution, whose Fifth Amendment contains
references to the death penalty in connection with due process, grand jury
presentments, and double jeopardy.
Yet once
the “s” is dropped, it is far easier to read the clause as Justice Kagan did,
demanding proportionality between the offense and the punishment. At this
point, the Court can question the death penalty in many cases, including child
rape. In 2008, the Court in Kennedy v. Louisiana found that
the Eighth Amendment should be read in light of “the evolving standards of
decency that mark the progress of a maturing society.” But this line of
reasoning is simply pop sociology. Historically, there has been much principled
and popular opposition to the repeal of the death penalty that should not be so
easily cast aside.
Even the
most austere account of limited government offers no coherent theory to explain
whether the death penalty should be retained or junked, and if so, for what
offenses. If there were ever a legislative function, this is it. The
disappearance of that “s” was not just a random event. It paved the way for the
justices to create a code of criminal sentencing, whose effects are so
widespread and profound that it must be regarded as a constitutional amendment,
and an unwise one at that.
The Taxing
Power
My second
example of a disappearing constitutional provision concerns the taxing power
found in Article I:
Section 8.
Clause 1. The Congress shall have Power to lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States; but all Duties, Imposts and Excises shall
be uniform throughout the United States.
This
clause is a big deal because it remedies one of the major defects of the
Articles of Confederation, under which the federal government had to beg the
individual states for the revenues needed to discharge its own collective
function. But in overturning earlier practice, the Founders were nervous about
lurching too far in the opposite direction, so they limited the general power
of taxation to three specified objects: “payment of debts, provision of common
Defence, and the general Welfare of the United States.”
So it is
important to understand that the clause is not a catchall that sweeps in every
objective under the sun. Federal taxes are meant to fund only a short list of
public—i.e. nonexcludable—goods that only
the central government can provide. The Congressional power to levy taxes is
needed to prevent free-riding by individual states. The limited purposes help
prevent politically corrosive cross-subsidies between states that could sink
the Union.
The proper
interpretation of the clause raises thorny questions about whether, for
example, the United States could provide disaster relief that benefits some but
not all states. President Grover Cleveland thought that the answer was an
emphatic “no” in 1887 when he vetoed the Texas Seed
Bill, which allocated $10,000 for Texas drought relief. Under the Constitution,
he did “not believe that the power and duty of the General Government ought to
be extended to the relief of individual suffering which is in no manner
properly related to the public service or benefit.”
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