(no subject)
Justice Scalia is getting a lot of flak for comments he made on 60 minutes to the effect that torture (for interrogation) is not a violation of the 8th amendment's ban on cruel and unusual punishment, because interrogation is not punishment. While I completely disagree with Scalia's attempt to legitimize torture as interrogation, he is actually correct about the Constitutional principle, speaking from his strict-constructionalist viewpoint of the Constitution. To me this highlights a problem with the way the US works, that a lot of things that are considered fundamental rights are protected not by the text of the Constitution as written, but by judicial decisions which interpret the text as statements of general principles of rights. I think this is consistent with the views of at least some of the founders (although a lot of them believed in states' rights more strongly than most people nowadays do).
Overall I think this works well, but there are problems with this approach, though. The first problem is that it makes it hard to know what your rights actually are. The actual text of the 1st Amendment is nearly worthless in determining whether a violation of church-state separation has occurred, or whether someone's religious freedom has been violated. For instance, a strict reading would suggest that a public school teacher leading children in religious exercises is not a 1st amendment issue because the 1st amendment is a prohibition on Congress making certain laws, it does not impose a requirement that Congress take positive action to protect people's religious freedom. Despite that, the 1st Amendment is generally taken to uphold the principle of church-state separation and a positive guarantee of religious freedom (which is certainly in line with the thinking of at least some of the founders.) In the same way, the 8th amendment is not narrowly interpreted as a ban on certain punishments applied to citizens, but as a general statement against cruel and unusual acts by the government towards anyone, for any purpose.
The second problem is that it leaves a lot of power in the judicial branch of the federal government. Every time a justice of the Supreme Court is ready to retire, it sends waves of fear out through the entire country as everyone wonders whether (for instance) a conservative justice will be nominated and the right to abortion be taken away, or the state-church wall lowered. This fear shows the understanding that certain rights, such as the right to abortion, are not protected by the text of the Constitution, but rather by judicial decisions interpreting that text -- and thus are subject to being taken away by a change in the court. In theory, with the consent of as few as 5 people, the court could decide at any time that there is no church-state separation guaranteed by the 1st Amendment, and that decision would not be subject to any sort of review; nothing short of a constitutional amendment (or a future court decision) would reverse it.
This is especially problematic because there is no restriction on the scope of decisions handed down by the judges. They can use a very specific case to make a huge, sweeping decision -- or not, depending on how they feel. For instance, the court used the Dred Scott case to make the sweeping decision that blacks could never be considered citizens and that the federal government had no right to prohibit slavery. On the more positive side, Lemon v. Kurtzman used a very specific and local incident to make a broad, sweeping statement about how to know if a particular religious issue was a violation of the 1st Amendment.
Sometimes people claim that the US Constitution is amazing because it is concise and nevertheless has endured for centuries. I think this viewpoint obscures the morass of judicial decisions that combine with the Constitution to protect fundamental rights.
Overall I think this works well, but there are problems with this approach, though. The first problem is that it makes it hard to know what your rights actually are. The actual text of the 1st Amendment is nearly worthless in determining whether a violation of church-state separation has occurred, or whether someone's religious freedom has been violated. For instance, a strict reading would suggest that a public school teacher leading children in religious exercises is not a 1st amendment issue because the 1st amendment is a prohibition on Congress making certain laws, it does not impose a requirement that Congress take positive action to protect people's religious freedom. Despite that, the 1st Amendment is generally taken to uphold the principle of church-state separation and a positive guarantee of religious freedom (which is certainly in line with the thinking of at least some of the founders.) In the same way, the 8th amendment is not narrowly interpreted as a ban on certain punishments applied to citizens, but as a general statement against cruel and unusual acts by the government towards anyone, for any purpose.
The second problem is that it leaves a lot of power in the judicial branch of the federal government. Every time a justice of the Supreme Court is ready to retire, it sends waves of fear out through the entire country as everyone wonders whether (for instance) a conservative justice will be nominated and the right to abortion be taken away, or the state-church wall lowered. This fear shows the understanding that certain rights, such as the right to abortion, are not protected by the text of the Constitution, but rather by judicial decisions interpreting that text -- and thus are subject to being taken away by a change in the court. In theory, with the consent of as few as 5 people, the court could decide at any time that there is no church-state separation guaranteed by the 1st Amendment, and that decision would not be subject to any sort of review; nothing short of a constitutional amendment (or a future court decision) would reverse it.
This is especially problematic because there is no restriction on the scope of decisions handed down by the judges. They can use a very specific case to make a huge, sweeping decision -- or not, depending on how they feel. For instance, the court used the Dred Scott case to make the sweeping decision that blacks could never be considered citizens and that the federal government had no right to prohibit slavery. On the more positive side, Lemon v. Kurtzman used a very specific and local incident to make a broad, sweeping statement about how to know if a particular religious issue was a violation of the 1st Amendment.
Sometimes people claim that the US Constitution is amazing because it is concise and nevertheless has endured for centuries. I think this viewpoint obscures the morass of judicial decisions that combine with the Constitution to protect fundamental rights.