The Letter of the Law

Just a quick point that seems somewhat relevant to popular constitutional understanding. It is often stated that judges are too quick to ascribe activist readings of the constitution, finding rights and such that can't be found anywhere in the words of the document.

The trouble is that this is by no means a new thing, and there are massive bundles of rights that almost everyone believes exist, and the Supreme Court agrees, that aren't there in the text. An example came out in criminal law today.

In ancient Greek law, it was entirely acceptable to punish a family member for someone's crime, if the criminal wasn't available. There was a sense that crime was a stain on society that needed to be washed out, so someone must be punished, even if it wasn't technically the person who committed the crime.

Our modern, liberal (in the 19th Century utilitarian sense) of individual freedom and personal responsibility is that people shouldn't be held responsible for the acts of others. Therefore, the criminal law requires culpability. You have to have committed a crime and be blameworthy in order to be convicted and punished.

So suppose a cop decided that he has a really good case that Johnny Scumbag committed murder. It's open-and-shut. But he can't find him. So he arrests his half-brother, Jimmy Scumbag, who has a spotless record. The judge decides, after weighing the evidence, that it's important to teach a lesson to hoods and thugs everywhere: If you commit a crime, you put your family and friends at risk of punishment. So he instructs the jury to punish Jimmy if they find that the evidence shows that Johnny commited murder. The jury convicts him.

This conviction would be overturned before the judge got back from lunch. The reasoning would come from the Fifth Amendment, which states in relevant portions that "no person shall ... be deprived of life, liberty, or property, without due process of law." But that doesn't come close to saying that Jimmy can't be convicted for Johnny's crime; according to a very strict reading of the rules, the Due Process clause there seems to only say that the proper procedure be followed. Assuming Jimmy went through all the steps, it seems on a strict reading that there's nothing wrong.

But the courts have found the phrase "Due Process of Law" to be highly loaded. It incorporates a massive number of rights that are considered to be a major part of the American judicial system, that are there because they were part of the unarticulated rights all accused parties had at the founding. You need culpability to be convicted, among other things.

Alternatively, an appeal could be founded in the Eighth Amendment, forbidding cruel and unusual punishment. This would rest on the argument that any punishment is cruel and unusual if it's for a crime you didn't commit.

This is all to say that there's a lot of stuff implied in the Constitution that we nonetheless recognize as rights. It is, to use the unfortunate and anachronistic phrase employed by my Law and Philosophy professor, a Lesbian Law (A term favored by Aristotle, referring to a type of flexible ruler used in contruction that was developed on the island of Lesbos).

I do not mean, in saying this, to imply anything with respect to certain rights supposedly in the Constitution. I'm not saying, here at least, that the Constitution guarantees a right to abortion or contraception or any other controversial rights. Nor am I arguing for or against certain schemes of Constitutional interpretation that are inclined to treat it as a living document, to be re-interpreted as society changes. I'm merely saying that there's more there than just the words.

I should also point out that this is fairly uncontroversial among legal scholars and the judiciary; even a hard-core Constitutional originalist like Scalia agrees that there's more to the Constitution than its literal reading. The point of this is simply to argue against a certain form of lay argument that says, for instance, that the First Amendment doesn't really protect freedom of religion, because all it says is that congress shall not establish a state religion. Constitutional interpretation requires a broader toolset than simple reading comprehension.

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This page contains a single entry by Zach published on January 19, 2006 9:39 AM.

You Be the Judge: Unconscious Murder was the previous entry in this blog.

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