The normality of a "self-contradictory" constitution

Is the idea of a self-contradictory constitution - that is, a constitution which under one provision permits some state of affairs, but under another prohibits it - odd at all? The answer is, actually, no. Consider these examples:

Congress imposes a tax on the purchase of television ad time, but only for political ads. That's presumably perfectly okay under the tax power, but certainly a breach of free speech under the First Amendment.

A local police officer stops a black motorist who makes a turn without using her turn signal. The stop has an objectively valid basis and so under current interpretation would not violate the Fourth Amendment, which regulates "seizures," including stops. But if the reason for the stop was actually a deliberate program of racial profiling, it would be unconstitutional race discrimination under the Fourteenth Amendment's Equal Protection clause.

What about a state statute that provided for the death penalty for homicides, if they are committed by African-Americans? Clearly, even if the Constitution affirmatively declared that the death penalty is not unconstitutional under the due process clause (which permits the deprivation of life "with due process of law"), this statute would be unconstitutional under the Equal Protection clause. And that's true even though the Due Process and Equal Protection clauses are both in the same Amendment, the Fourteenth. (The Fourteenth Amendment's due process clause applies to the states; the Fifth Amendment'a due process clause applies to the federal government.)

But, one might say, even though the Constitution contains multiple provisions and those provisions naturally can have differing consequences for the constitutionality of particular government actions, at least those provisions' intersection must be determined in light of their original meaning. A provision can't somehow expand in meaning to swallow some situation it formerly didn't apply to.

This contention is of course just an instance of the general idea that the constitution's meaning was fixed at the time of its adoption. That's not my view, as I've made clear elsewhere, but I want to offer one more example of our law taking a different approach.

This is Bolling v. Sharpe, the case that held school segregation in the District of Columbia unconstitutional. Why didn't Brown v. Board of Education, issued the same day, decide this? Because Brown was a decision under the Fourteenth Amendment's Equal Protection clause, which applies only to states. There is no textual Equal Protection clause applying to the federal government. So how does Brown's command come to apply to the schools in D.C., which are not governed by the Fourteenth Amendment because the District of Columbia is not a state? The answer is: through the equal protection component of the Fifth Amendment's due process clause. 

But how do we know that that implicit equal protection component applies to school segregation? After all, the Fifth Amendment – which itself has never been amended -- was adopted at a time when the Constitution explicitly, if euphemistically, “contemplated” (to use Scalia's language) slavery. The Thirteenth Amendment made slavery unconstitutional, so we can say that the Fifth Amendment no longer contemplates that, but what about school segregation? The Fourteenth Amendment – which the Brown Court interpreted as banning school segregation (though that may well not have been what the Fourteenth Amendment’s adopters thought it meant) – doesn’t apply to the federal government. What the unchanged language of the Fifth Amendment should be understood to “contemplate” now is the result of the Supreme Court's interpretation of the Fourteenth Amendment and the Court's conviction that “[i]n view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” In short, the Fifth Amendment’s meaning grew over time to outlaw school segregation.

Justice Scalia's opinion in Glossip v. Gross takes for granted that because the constitution explicitly contemplates the existence of capital punishment, that penalty could not legitimately be held unconstitutional. But it turns out that’s simply not so.

Can the Constitution's text both protect and prohibit the death penalty? (A thought experiment)

To consider the possibility of a self-contradictory constitution, I want to assume that what the Constitution actually says about the death penalty is much blunter than it actually is – that in fact the Constitution declares that "the death penalty is constitutional under the Fifth and Fourteenth Amendments," the provisions that (as I discussed in my previous post) Scalia in reality invokes in Glossip v. Gross as “explicitly contemplating” capital punishment. Could it be that the death penalty is nevertheless unconstitutional?

One way to make progress with this question would be to ask: “under what provisions of the Constitution could the death penalty be held unconstitutional?” I think that the language I’ve imagined, declaring that “the death penalty is constitutional under the Fifth and Fourteenth Amendments,” does bar any court from saying that, after all, the death penalty is not constitutional under these amendments. For a court to simply contradict the text strikes me as unequivocally denying the power of the people to rule themselves.

It’s worth mentioning that not all legal systems would agree. There are courts which have reasoned that their constitution contains a core meaning that simply cannot be contradicted; if the people of the country adopt new language departing from that core meaning, what they have adopted will itself be unconstitutional and void. One could extend this reasoning to say that even language that was part of the constitution all along was so out of synch with the constitution’s true core meaning that it had to be treated as unconstitutional. (Ronald Dworkin, I believe, made such an argument about the Fugitive Slave Clause of the United States Constitution in the years before the Civil War.) But the United States Supreme Court has not reasoned this way. 

There is, however, another possible answer to the question I asked: “under what provisions of the Constitution could the death penalty be held unconstitutional?” This answer would be: not under the Fifth and Fourteenth Amendments, as to which the text commands an answer, but under the Eighth Amendment. That Amendment prohibits “cruel and unusual punishments,” and the constitutional text I’ve imagined, declaring that the death penalty is constitutional under the Fifth and Fourteenth Amendments, says nothing about whether the death penalty is also constitutional under the Eighth Amendment. 

(Or at least my hypothetical language says nothing explicit about this. Long-established constitutional law reads the Eighth Amendment as applying of its own force only to the federal government, and as reaching the states only through “incorporation” via the Fourteenth Amendment, so one might say that my language about the death penalty's constitutionality under the Fourteenth Amendment barred any decision that the states could not impose the death penalty. One could even argue that this understanding of the Fourteenth Amendment echoed back to the Eighth Amendment and so indicated that the death penalty couldn't be invalidated even as to the federal government. But these complexities needn’t detain us; the hypothetical language I’ve imagined could have been written differently to get around these issues, and I’m using it only to frame the problem of a self-contradictory constitution.)

Could it be, then, that the Eighth Amendment prohibits what the constitutional text explicitly protects with respect to the Fifth and Fourteenth Amendment? Actually, the answer is yes. One might argue for this conclusion simply as a matter of logic: the Eighth Amendment is not the Fifth or Fourteenth, and each amendment can and should have its own meaning (an application of the interpretative idea that no part of the text should be seen as superfluous). But this conclusion also turns out to have a basis in already established constitutional law.

Consider this provision, a part of Article IV, Section 2 of the Constitution:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The meaning of this provision may seem obscure, but only because what it refers to is long gone. This is the Fugitive Slave Clause that I mentioned a little earlier in this post. Slavery long ago became unconstitutional in the United States, the result of the Union’s victory in the Civil War and the adoption of the Thirteenth Amendment. But – and this is the important point for my argument – the Fugitive Slave Clause was not removed from the Constitution. It is still there. Yet no one today can lawfully hold another person in slavery, nor insist on the return of a slave who escaped from bondage. So, actually, this provision of the Constitution is unconstitutional.

None of the provisions of our Constitution that subsequent amendments have overridden has been removed from the text. (This is quite unlike our practice with statutes; when a statute enacted in one year is amended in a later year, all subsequent texts of the statute include only the language as amended.) It follows that quite a number of provisions of our constitutional text are in fact unconstitutional.

But it might be said that this version of constitutional self-contradiction isn’t real. We find it convenient to keep in the text of our constitution the various parts of it that amendments have altered, but they aren’t really part of the constitution itself, we might say, and so the constitution isn’t really contradicting itself. The clearest support for this argument may be the Twenty-First Amendment, which ended Prohibition. The first section of the Twenty-First Amendment declares: “The eighteenth article of amendment to the Constitution of the United States [the one that created Prohibition] is hereby repealed.” But the Eighteenth Amendment still appears in our Constitution; it’s been repealed but not erased. That might be seen as what’s happened with the other provisions we’ve altered by amendment as well, though I don't believe any other amendment in fact declares that the earlier provisions it is altering are also "repealed."

So can we find any instances of more substantial self-contradiction? The answer, I’ll argue in a future post, is yes.

Anguish in the Supreme Court about the death penalty -- Part III

The opinion in Glossip v. Gross by Justice Breyer, joined by Justice Ginsburg, lays out their reasons for believing that the Supreme Court should address head-on the issue of whether the death penalty is constitutional in any circumstances. To my mind, the case the opinion makes is cogent. I think Breyer and Ginsburg are right to say, in particular, that a penalty applied so inconsistently, both failing to systematically punish "the worst of the worst" and on occasion likely falling on people who are actually innocent, can't be justified, especially outside the context of war. (War may be different, essentially because life is so often taken in war anyway. But the Guantanamo war crimes investigations and prosecutions have been so emphatically problematic that I am inclined to say that here too the arguments against the death penalty are persuasive.)

The impossibility of running a death penalty system fairly, reliably and consistently means that the death penalty should be unconstitutional. But it doesn't quite mean that it is unconstitutional.

Justice Scalia responds to Breyer's argument with this observation (among others): "It is impossible to hold unconstitutional that which the Constitution explicitly contemplates." (Scalia, J., concurring, at 2.) (Emphasis in original.) There's no disputing that both the Fifth and Fourteenth Amendment do "contemplate" capital punishment. The Fifth Amendment addresses the requirements for trial of a "capital ... crime," and both Amendments forbid the government from depriving anyone of "life" without due process of law.

But while the Constitution certainly “contemplates” the existence of capital punishment, no one claims that it mandates that capital punishment be one of the penalties American jurisdictions employ. Clearly, also, some things the Constitution did not contemplate have come to be part of our world. The Framers in 1787 did not contemplate an Air Force. Nor, I’ve read, did they contemplate (that is, expect the rise of) political parties.

Here’s one more example: The Framers did not anticipate the development of an economy that was so massively interconnected that the power to regulate interstate commerce, which they explicitly granted to Congress in the Constitution, could come to encompass the regulation of almost anything. Whatever the exact limits on a proper modern interpretation of the reach of the interstate commerce clause (a question still, and perhaps forever, under debate), the changes of the past two centuries – only dimly foreseen, if at all, by the framers, have added to congressional power and reduced state authority.

That last point is of particular importance here, because what has happened is not only that federal power has grown but that state power has contracted. That’s striking, because the Tenth Amendment of the Constitution can be said to “explicitly require,” not just “contemplate,” the preservation of state power.  The Tenth Amendment provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This language, although its exact meaning becomes elusive as soon as it is carefully parsed, nevertheless plainly is asserting not only what the Framers “contemplated” but what they meant to mandate. Yet the authority of the states has in fact been reduced by the uncontemplated impact of social change, as transmuted into constitutional understanding. Clearly we can only see this evolution as constitutionally acceptable if we believe that the meaning of the constitution’s words can evolve over time – but I do believe that, and in fact believe that a constitution as hard to amend as ours can only remain meaningful over centuries of time if its words’ meaning can evolve with the circumstances they govern.

So I don’t think that what the Framers “explicitly contemplated” is necessarily constitutional today. Justice Breyer writes, and I agree, that “‘the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” (Breyer, J., dissenting, at 40.) (Emphasis added.)

But what Breyer says doesn’t directly address the question of how to read the Constitution if it “contemplates” two opposing things – in this case, the potential unconstitutionality and the assumed constitutionality of capital punishment. I want to turn to this question of what to make of a possible self-contradictory constitution in a coming post.

Anguish in the Supreme Court about the death penalty -- Part II

The main debate in Glossip v. Gross is about the constitutionality of using a protocol of three particular drugs to carry out executions by lethal injection. This debate - contained in the opinion of the Court for five justices by Justice Alito and the dissent for the other four by Justice Sotomayor, is also marked by signs of the justices' distress.

Justice Sotomayor sharply attacks the majority's position that an attack on one method of execution as unconstitutionally cruel cannot succeed unless the attackers show that "any risk of harm was substantial when compared to a known and available method of execution." (Majority opinion at 13.) (Oklahoma, the executing state here, contended that no better drugs were available - because the suppliers of such drugs were not prepared to permit their use in executions.) Justice Sotomayor argued that "under the Court's new rule, it would not matter whether the State intended to use midazolam [the particular drug that posed problems], or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake." (Sotomayor, J., dissenting, at 28.)

To this Justice Alito responds that "That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments." (Majority opinion at 29.) He is basically right that Sotomayor's point is wrong. Any of the self-evidently torturous methods of execution she refers to could easily be replaced with other methods that are substantially more humane than these. Doing so might require legislation, but with that step taken these other methods would be "available." Once that's established, it follows that under the majority's test demonstrably torturous methods could not avoid being held unconstitutional.

But Justice Alito's opinion has a striking feature of its own. The inmates' case was that midazolam, which was meant to cause unconsciousness, did not work well enough to maintain unconsciousness when the next two drugs, one for paralyzing the body and thus stopping respiration and the other for stopping the heart, were administered. The second and third drugs, the inmates argued, would cause such excruciating pain that they would jolt people back to consciousness. The result would be, as Justice Sotomayor describes the claim, that the inmates would be "exposed to what may well be the chemical equivalent of being burned at the stake." (Sotomayor, J., dissenting, at 2.) Agonizing things would be done to their bodies, and they would be awake to feel it.

For the Court, Justice Alito responds that the burden of proving this contention lay with the inmates. The lower courts found against the inmates on the facts, and the Supreme Court's role is confined to reviewing those factual rulings for "clear error." Sotomayor makes a good case that in fact there was clear error - perhaps most tellingly, doctors do not use midazolam by itself as an anesthetic for serious surgery, evidently because it cannot be relied upon to so the job of freeing the patient from pain -- but reasonable judges do disagree on this sort of question. (Sotomayor, J., dissenting at 18.)

What's most striking about Alito's opinion, instead, is what he does not say. He never spells out the inmates' claim of chemical torture, or even acknowledges the dissent's identification of this prospect as the crux of the case. Instead he refers repeatedly to the question of whether midazolam will render the inmate "insensate to pain" (the word "insensate" appears in the majority opinion 16 times) or insure unconsciousness despite the "'noxious stimuli'" from the other drugs (the latter language quoted from the trial court). Though he refers many times to the legal standard that requires showing a substantial risk of "severe" pain, he doesn't spell out the inmates' case. Once he refers to arguments concerning "serious" pain (majority opinion at 28), and once he quotes a dissent from another case referring to "a risk of dreadful pain" (id. at 22), but that's as far as he goes.

Why is Alito's language so discrete? Perhaps he felt that the inmates hadn't provided enough evidence to justify even alluding to the idea of chemical torture. Perhaps he regarded the claim as not only unproven but also too preposterous to bear mention. Perhaps he felt that using this language in and of itself gave a rhetorical advantage to the inmates. We do not know, but I think it is fair to take Alito's omission as itself reflecting how troubling he found the case. Where Sotomayor turned to overstatement, Alito chose understatement. Both seem disturbed by what they must address.

Anguish in the Supreme Court about the death penalty - Part I

Glossip v. Gross, the Supreme Court's latest encounter with the death penalty, confirms -- if any confirmation was needed -- how difficult an issue capital punishment is for the justices of the Court. The actual issue in the case was the constitutionality of a particular three-drug "protocol" used for execution by lethal injection. But the case also provoked several of the justices to a debate about the constitutionality of the death penalty itself, and I want to start with that.

Perhaps the most distressed of the justices is Scalia (whose separate opinion Justice Thomas joined). Scalia is so upset by the long dissent from Justice Breyer (with whom Justice Ginsburg concurred), in which Breyer suggested that the death penalty might in fact be unconstitutional in all applications, that he descends to insult. He declares that Breyer's opinion "is full of internal contradictions and (it must be said) gobbledy-gook." (Scalia, J., concurring, at 2.) While Scalia is known for epithets like this, this one is hard to defend: Breyer's opinion can certainly be criticized but it's a notably sober and thorough discussion.

Then, responding to Breyer's argument that the death penalty probably does not actually operate as a significant deterrent, Scalia argues that "[t]he suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others" (id. at 5), those who are more exposed to danger than the members of the federal judiciary are. That's an assertion not only of elitism - a familiar criticism from Scalia - but of a malign indifference to the needs of others.

Then, in the next paragraph, Scalia addresses Breyer's argument that the death penalty may be unconstitutional because of the long delays between sentencing and actual execution. Scalia, not unreasonably, blames this delay on the Court's own complex death penalty jurisprudence, developed over past decades. Then he writes: "Indeed, for the past two decades, JUSTICE BREYER [the capitals aren't for special emphasis - they're a Supreme Court convention] has been the Drum Major in this parade." (Id. at 6.)

Scalia, in short, finds Breyer's dissent just unbearable - and his short dissent makes that clear in ways that aren't just sharp but quite personal.

The other justices don't write that way, but as I'll try to show in coming posts, many of them are distressed too.