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Shredding the Constitution

(Roper v. Simmons – eliminating the death penalty for minors)

By Theresa Fritz Camoriano

“The evolving personal opinion of Anthony Kennedy when it coincides with the personal opinions of at least four other justices is now our Constitution.” – Terence P. Jeffrey (see also Scalia’s dissent )

If I had written anything in law school that applied the kind of legal analysis that was used in the recent Supreme Court decision in Roper v. Simmons, I would have flunked out.  But I guess, once you become a member of the Supreme Court, you don’t have to worry about grades any longer; apparently, you can do anything you darned well please, and the country can just learn to live with it!

Back to law school and grades – when I was in law school, we were taught that legal documents had a fixed meaning.  If they didn’t have a fixed meaning and their meaning could change depending upon who the judge was, then the documents would be useless.  Imagine a law or contract meaning one thing the day it was created and something entirely different two years later!  Or imagine a contract meaning one thing when interpreted by one judge and something entirely different when interpreted by a different judge.  Ridiculous!  If that were the case, how would anyone know what to write in a contract or how to draft a law?  Such a system would create uncertainty and instability -- just the opposite of what a good legal system should provide.

In law school, we were taught how to go about figuring out what the fixed meaning of a legal document was.  We were told to look first at the plain meaning of the words in the document to determine the meaning and the intent of the drafters. If that was not sufficient, we could study the circumstances surrounding the creation of the document.  If the document were a law, we could study the legislative history.  If the document were a contract, we could consider the behavior and statements of the parties at the time they entered into the contract.  But it was never suggested that the way to interpret a document was to take an opinion poll of Europeans, or even an opinion poll of Americans.  Silly us – we thought popular opinion was supposed to be expressed in elections and through legislatures, not in the courts.    

But the current U.S. Supreme Court has other ideas.  Not having to worry about grades, and having no other constraints, the majority has decided that the way to interpret the U.S. Constitution is to poll Europeans and Americans to see what they would like the Constitution to mean.  In this decision, the court decided that Europeans and Americans overwhelmingly think the death penalty for someone who committed a crime when under the age of 18 is “cruel and unusual punishment” and therefore unconstitutional.  Never mind that several states provide for such a death penalty in their laws and are certainly free to eliminate that provision through their legislatures when they so choose; never mind that such punishment was not “cruel and unusual” when the Constitution was enacted, nor has it been “cruel and unusual” for the past two hundred years, nor was it “cruel and unusual” even just a few years ago, when the court last considered the issue.  But suddenly, right now, it has become “cruel and unusual”.

We can only wonder what other interpretations the Court will come up with now that the Justices no longer feel the least bit constrained by the plain meaning of the document or the legislative history.  Will we lose the right to self defense?  Will government be able to house its troops in our homes against our will?  Will we be compelled to provide evidence against ourselves?  We already have lost much of our free speech, freedom of religion, and freedom of association, so we are picking up speed as we head down that slippery slope.  The bottom line is that there are no limits on the way the Supreme Court can interpret the Constitution.  If we don’t demand that the President appoint and the Senate approve strict constructionists, the slope will become even steeper and more slippery, as the uncertainty and instability only become worse.

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