Constitution #3: Original Intent

The Objectivist
THE CONSTITUTION AND ORIGINAL INTENT
Dunkirk-Fredonia Observer
May 6, 2008

In a recent case, Baze v. Rees, 553 U.S. _____ (2008), the Supreme Court faced the issue of the methods by which states may execute criminals. The case raises the broader issue of how the Constitution should be interpreted.

In Baze, the Court faced the issue of whether Kentucky’s use of lethal injection violated the Eighth Amendment. The Eighth Amendment prohibits cruel and unusual punishment. Thirty-six states impose capital punishment and at least thirty and the federal government use lethal injection. Lethal injection takes the form of three drugs. The first induces unconsciousness and is intended to prevent pain, the second induces paralysis, and the third induces cardiac arrest. Lethal injection replaced electrocution as the favored method of execution in the 1970s. Other historical methods have included hanging and the gas chamber.

Two death-row inmates (Ralph Baze and Thomas C. Bowling) sued, claiming that their sentences violated the Eighth Amendment. They argued that Kentucky’s procedure created an unnecessary risk of pain. They further argued that whether pain was necessary was a function of the amount and likelihood of pain and the availability of other procedures.

The Court opinion was written by Chief Justice Roberts and joined by Justices Kennedy and Alito. Roberts argued that what the Amendment prohibited was exposing those sentenced to die to an objectively intolerable risk of pain. He noted that three-drug injection is believed to be the most humane available and that it is painless if done right. Because the risk that it will be done incorrectly and thereby produce a painful death is small, it is not objectively intolerable. In addition, the prisoners’ suggested alternative method is untested and has problems of its own. Hence, Roberts concluded, the three-drug method of execution satisfies the Eighth Amendment. In effect, then, Roberts held that a method of execution violated the Eighth Amendment if it imposed a substantial risk of severe pain that could be reduced by adopting a readily available alternative.

In concurrence, Justice Thomas, joined by Justice Scalia, ripped Roberts’s holding. Thomas argued that such a rule did not align with the original understanding of the Amendment, conflicted with previous cases, cast doubt on long-accepted methods of execution, and required the Court to face issues of pain testing and management that were outside its expertise. Thomas argued that the Court should adopt a rule guided by the original intent of those who wrote and ratified the Constitution. He argued that their intent was to prevent methods of execution that are designed to inflict pain. In particular, the Amendment aimed to prevent punishments such as burning at the stake, crucifixion, breaking on the wheel, emboweling alive, and so on. To show this he looked at the practices in the late 18th Century, a dictionary at the time, the debates on the Constitution, and statements on it by early commentators. He concluded that the Amendment prohibits execution-methods that were designed to inflict torture, that is, ones that intentionally inflict gratuitous pain.

As University of Illinois School of Law Professor Michael Moore has noted, the notion that the Constitution should interpreted in accord with original intent has a number of problems. First, some of those who wrote and ratified the Constitution sometimes had different intentions. Some intended that certain things be prohibited (for example, burning alive, the rack, etc.), others intended certain kinds of acts be outlawed (for example, torture), and still others had certain goals in mind (for example, avoiding gratuitous pain). It is hard to see how these different types of goals can be combined into a single rule.

Second, it is not even clear if a group of persons can have intentions. Intentions are mental states and a mental state is a feature of a single mind. Because groups don’t have a single mind, they don’t have an intention. Different individuals might have separate intentions, but then it is not clear how they should be combined. For example, it is not clear if we should look at the intentions of every legislator regardless of whether he voted for the bill in question, the intentions of those who voted for it, or the intentions of those who voted for it and read the bill (rather than just the title of it), or some other group.

Third, there is at least some evidence that those who framed and ratified the Constitution intended that their specific intent about a bill not be given much attention. That is, respecting their intentions might in a strange way require that we ignore their intentions. Instead, they probably preferred that judges and others attend to the plain meaning of the statute and other factors beside intent.

Fourth, focusing on intention prevents the public from having fair notice about the law. Few besides crusty-old historians know what the Constitution’s framers and ratifiers intended. This problem is a serious one when we consider that law is supposed to be something that is public and not something private like what was going on in James Madison’s head.

However, it is not clear what other means of interpretation can be used to decide cases when applying clauses that apply general notions like equal treatment, due process, and reasonable search and seizure. A paradigm case of this can be seen in Justice Stevens’s concurrence in Baze. In his concurrence, Stevens argued that “[T]he imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” How this is relevant is anyone’s guess.

On a side note, economist John Lott, Jr. in Freedomnomics, points out that the majority of recent scholarly research indicates execution has a powerful deterrent effect (on Lott’s estimate, fifteen to eighteen murders per execution) and accounts for significant amount of the overall drop in murder in the 1990s (Lott estimate 12-14%). If these studies are even approximately true, Stevens's statement is woefully uninformed.

However, the broader notion is what standard Roberts, Stevens, etc. are relying on in deciding what punishments are cruel and unusual. Clearly the phrase cannot be taken literally because no justice would argue that torture applied regularly is Constitutional because it has become usual. If Stevens substitutes his own word (for example, “torture”) or goal (for example, avoiding gratuitous pain) to interpret the Amendment, he is making law, not interpreting it.

While focusing on original intent has serious conceptual difficulties, it is not clear what the alternative is. When judges seek to interpret the law rather than make it up, they have to discover some pre-existing rules and principles and given the vagaries of language it is hard to see how this can be done without appealing, at least in part, to original intent.