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The Supreme Court and Legal Realism:
Check out this fascinating passage from today's decision in Danforth v. Minnesota about what the Supreme Court does when it changes its interpretation of the Constitution. If I'm reading the passage correctly, it indicates that new Supreme Court decisions that overrule old cases simply discover and recognize the real Constitution that the Court hadn't been able to see in the past. Here's what Justice Stevens says about "new rules" of the Constitution established by new Supreme Court decisions:
[T]he source of a "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.
  So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

  Extra Credit Question: If the Justices truly believe in the passage above, should they be adhering under stare decisis to any criminal procedure decisions that they think are incorrect?
Benjamin P. Hayek (mail) (www):
Nice catch, Orin. "Saying what the law is" at its best. I'm just thankful that Justice Stevens can find these "new rules" for us.
2.20.2008 8:24pm
John (mail):
This is just a redo of the centuries-old legal fiction that common law judges "discover" the law, rather than "make" the law.
2.20.2008 8:28pm
John (mail):
This is just a redo of the centuries-old legal fiction that common law judges "discover" the law, rather than "make" the law.
2.20.2008 8:28pm
cboldt (mail):
Lyle Denniston has a good piece up on this too. Analysis: `Creating' or `declaring' rights
2.20.2008 8:28pm
Mike& (mail):
Orin, to be fair, this is the same tripe you'll hear at every Federalist Society meeting. "Judges must say what the law IS, not what it OUGHT to be!" This presupposed the law is something that is discoverable. That's what Stevens is saying. The "true" rule is discoverable - even if it takes judges until 1966 to make the discovery.

Yes, it's hilarious that Justice Stevens of all people is using that line. But, again, he has a lot of company on the Right.
2.20.2008 8:51pm
MarkField (mail):
John is right. What Stevens said is not new, it's the ancient common law "legal fiction".
2.20.2008 8:51pm
CheckEnclosed (mail):
The idea of discovering rights, e.g., a state's constitutional right to same sex marriage, is something that serves to alienate public opinion and the Courts -- it seems intellectually dishonset to those not learned in the law.

That said, I couldn't be happier about Crawford, whether retroactive or not. Especially from a libertarian perspective, when the State seeks to deprive a citizen of liberty, the protection afforded by the law for that citizen should be greatest when the crimes charged are the most heinous. Whether one is charged with being a witch, communist, child-molester, or terrorist, the rule of law should be most solicitous of those defendants who are most reviled. That includes the right to confront accusing witnesses. The fact that it might be hard on the witnesses is exactly the point -- it should be hard to give testimony that results in the deprivation of another's liberty.
2.20.2008 8:52pm
OrinKerr:
Mike,

No, that's wrong. What you hear at Federalist Society meetings is a normative claim: The Supreme Court should not make stuff up. That's pretty different from a descriptive claim, that it doesn't.
2.20.2008 8:54pm
The Court's True Friend:
The Constitution is not some brooding omnipresence in the sky
2.20.2008 9:00pm
Cornellian (mail):
That's how the common law describes things pretty much since there has been a common law and well before the founding of the Republic. I don't see anything new or surprising here.
2.20.2008 9:05pm
Dilan Esper (mail) (www):
I think this debate is interesting, though also kind of silly.

Basically, if the state courts want to enact broader protections for their citizens than that required by the US Constitution, they have every right to do it. Applying a new rule retroactively should be no more controversial than interpreting a state constitution to provide a broader right, which happens all the time. Roberts' invocation of Marbury's "say what the law is" passage seems particularly silly.

That said, if Stevens' claim (joined by 6 other justices, I might add) were correct, what's the justification for retroactivity restrictions at all? After all, SUBSTANTIVE rules are fully retroactive. So if a ruling on a procedural protection means it always was in the Constitution, shouldn't that mean that everyone gets a new trial who was deprived it (absent harmless error)?
2.20.2008 9:07pm
GV:
The opinion has nothing to do with legal realism. Legal realism and legal formalism are theories of adjudication -- i.e., theories on the methods of how we do, and how we ought to, use legal reasoning to justify legal judgments. That’s not what this case is about. It’s about the battle between legal positivism and natural law theory, which are both theories of law --- i.e., theories about what it means to say something is the law or how you know whether something is the law. A legal positivist believes that a Supreme Court opinion can change the law. A natural law theorist couldn’t.

I haven’t read this opinion, but from the looks of it, it makes little sense. And the commentary from SCOTUS blog seems to make even less sense. What does Originalism have to do with this? You can certainly be an Originalist of some stripe (i.e., a legal formalist) and be a legal positivist. As far as I know, Scalia is both. I actually didn’t think any judge in the entire country believed in natural law theory.
2.20.2008 9:09pm
DCP:
Maybe there is something to these "National Treasure" movies. I guess the Founding Fathers really did like to hide all of this stuff in a cryptologic web of intrigue.

It's a good thing we have Nicholas Cage and the Supreme Court to unearth all of these easter eggs of political and legal wisdom. Being the lazy oaf that I am, I would have simply stopped short at the available documents themselves.

Who knows what they will uncover next. More Miranda rights perhaps? Grab the popcorn.
2.20.2008 9:22pm
The Cabbage (mail):
The Constitution is not some brooding omnipresence in the sky

That's called the "Cthulhustition". Fortunately for us, its 14th tentacle only selectively incorporates other tentacles in consuming the souls of American Cthulhustition Society members.
2.20.2008 9:22pm
Benjamin R. George (mail):
‘So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.’

This might happen to be false, but I'm not sure I see why it's absurd. New facts about, say, the natural numbers are still being noticed millennia after they were first described. Is it so implausible that certain things that follow from the constitution might have gone unnoticed for a couple of centuries? In many (though certainly not all) respects, the text of the constitution presents greater interpretive and deductive challenges than a succinct description of the natural numbers does, so if we'd figured out everything it required by now it would in some sense be quite surprising.

I realize, of course, that this isn't how constitutional law works, as a matter of social practice. I understand that there are good arguments for not adopting this perspective. But are those arguments so compelling as to make an approach along these lines absurd enough to warrant this kind of glib dismissal?
2.20.2008 9:22pm
Mike& (mail):
What you hear at Federalist Society meetings is a normative claim: The Supreme Court should not make stuff up. That's pretty different from a descriptive claim, that it doesn't.


By saying the Court "should not make stuff up," the speaker presupposes the existence of some "true" law. This is what Justice Stevens said: There is a "true" law that is discoverable. He is Christopher Columbus.

The Federalist Society members just tend to think that originalism (or any other legal theory that will lead to more convictions, more school prayer, and fewer abortions) is the "true" law; and if judges would just apply originalism, they would be discovering rather than making up the law. Granted, all but Justices Scalia and Thomas, Alito and Roberts (STAR) are currently making up the law. But STAR is discovering the "true" law.

So, again, I don't think what Justice Stevens is saying is any different from what can be heard at any Federalist Society meeting. Justice Stevens is saying what the law is, not what it ought to be.
2.20.2008 9:28pm
Serendipity:
Put it a different way--was "separate but equal," always incompatible with the 14th amendment and it simply took the Supreme Court a while to realize Harlan was right in dissent or did the Court just invent a new definition of equal protection? It is bizarre, but really these type of "metaphysical" debates as Breyer called them during the oral argument, combine the idea that Constitution is a fixed document and also that it's a living one. It's fixed in that its principles have been there since founding, and living in that it takes a while to fully realize what those principles are.
2.20.2008 9:29pm
Loophole1998 (mail):
Let me provide some perspective from an ordinary "dumb" person (i.e., not a legal academic):

If the source of the right in question is the Constitution. And the Constitution is comprised of text. And the text has not changed. Then does it not follow that the right has existed, unchanged, as long as the text has existed, unchanged?

And now for some simple-minded rhetorical questions:

If new rights can form independent of changes to the text, where do these new rights come from? If new rights can form independent of changes to the text, can existing rights disappear independent of changes to the text?

What about that Miranda problem? Could it be that the Miranda Court was wrong, and that it "discovered" (i.e., created) a right that really never was established by the Constitution?
2.20.2008 9:36pm
Oren:
If the source of the right in question is the Constitution. And the Constitution is comprised of text. And the text has not changed. Then does it not follow that the right has existed, unchanged, as long as the text has existed, unchanged?
No. There are many phrases in the Constitution (e.g. 'unreasonable search and seizure', 'due process', 'rights and immunities', 'cruel and unusual punishments') that do not define a thing by value but rather by reference. Since that reference can change, the meaning of the text can change.

If new rights can form independent of changes to the text, where do these new rights come from? If new rights can form independent of changes to the text, can existing rights disappear independent of changes to the text?
Deny the antecedent.

What about that Miranda problem? Could it be that the Miranda Court was wrong, and that it "discovered" (i.e., created) a right that really never was established by the Constitution?
Yes, that is possible. I don't believe that you are correct but the Court has erred in the pas (Plessy and Dred Scott come to mind).
2.20.2008 9:51pm
Loophole1998 (mail):
I think I'll take a stab at the extra credit question. The answer is "it depends on the Court's view of stare decisis, which is an entirely separate question from the Court's view of the source of Constitutional rights."

Presumably, the first and second courts are equally capable of determing the nature of the rules set forth in the Constitutional text. As between two differing interpretations of the same text (and the same rights arising from that text), it makes sense to defer to the first interpretation, because deference to the first interpretation promotes stability in the law. That is the root of the general notion of stare decises.

There may be certain circumstances, however, where other considerations trump deference to the first interpretation. The question whether those cirumstances exist, such that the first interpretation should be declared "wrong," is entirely independent from the question whether the newly announced rule has its source in the Constitutional text or in the imaginations of the Justices sitting on the second court.

It is understood, from the outset, that the source of any rule is the Constitution itself. Stare decisis is merely a tool that helps us decide between two contrary interpretations of the Constitution itself.

Once the second Court has explained why its interpretation should take precedence over an earlier interpretation of the same text, then it necessarily follows that the first interpretation was "wrong" all along. This truism (recognized by Judge Stevens) does not have any logical relation to the extent of deference that should be paid to earlier interpretations. In other words, it says nothing about stare decises.
2.20.2008 10:01pm
Brett Bellmore:

This presupposed the law is something that is discoverable.


Your commenting here presupposes that the meaning of your comments is something that is discoverable. The notion that the law is not something that is discoverable is self-refuting; Anybody who believed language was that indeterminate wouldn't bother expressing the that conviction, due to the belief that nobody would understand them anyway.
2.20.2008 10:04pm
Loophole1998 (mail):
Oren, that's why I'm not a legal academic. But I took at stab at it...
2.20.2008 10:05pm
Benjamin R. George (mail):

No. There are many phrases in the Constitution (e.g. 'unreasonable search and seizure', 'due process', 'rights and immunities', 'cruel and unusual punishments') that do not define a thing by value but rather by reference. Since that reference can change, the meaning of the text can change.


It seems to me that the disagreement here derives from the vagueness of the everyday term ‘meaning’. There's a sense in which &lsuqo;it raided yesterday’ means different things when uttered on Thursday and on Friday, but there's another sense in which on both occasions it means the same thing - that is, that it rained the day before the time with respect to which the expression is being evaluated (in spoken conversation, this is generally just the time at which the sentence is uttered, but with a written text the evaluation time of a particular phrase may be the time of writing or the time at which the text is being read or evaluated). In the first sense, the meaning of a text can change over time. In the second sense - the sense where the meaning is the whole semantic content of the text, it prettymuch doesn't.
2.20.2008 10:05pm
Gilbert (mail):
@Oren


There are many phrases in the Constitution (e.g. 'unreasonable search and seizure', 'due process', 'rights and immunities', 'cruel and unusual punishments') that do not define a thing by value but rather by reference. Since that reference can change, the meaning of the text can change.


Justice Scalia (!) makes the very same argument in Georgia v. Randolph with regard to the Fourth Amendment.
2.20.2008 10:20pm
DangerMouse:
Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.

This is all just a set up for him to declare that gay marriage has always been a fundamental right. He's making these kinds of statements to say that he's not legislating from the bench. And there are plenty of morons who will accept his statement as fact in order to defend all the lunatic policies they can get from the liberals on that court.
2.20.2008 10:22pm
Q the Enchanter (mail) (www):
Mike:
[T]his is the same tripe you'll hear at every Federalist Society meeting. "Judges must say what the law IS, not what it OUGHT to be!"
Orin:
No, that's wrong. What you hear at Federalist Society meetings is a normative claim: The Supreme Court should not make stuff up.
Sounds like what Mike purported to paraphrase was a normative claim. What am I missing?
2.20.2008 10:27pm
Loophole1998 (mail):
The meaning of the equal protection clause has change over time. What in that language defines a thing "by reference"? Is the word "equal" really as malleable as "reasonable" and "cruel"? Or is it "protection" that gives us the wiggle room?
2.20.2008 10:34pm
Oren:
In the first sense, the meaning of a text can change over time. In the second sense - the sense where the meaning is the whole semantic content of the text, it pretty much doesn't.
I don't buy it. The semantics of the fourth amendment hasn't changed - it always prohibited unreasonable searches and will continue to prohibit unreasonable searches. The only hitch is that it defines the thing to be prohibited by reference - things that are unreasonable. There is no reason to assume that what is reasonable today could not be unreasonable tomorrow (many posters on this blog, for instance, vary wildly in their reasonableness over the course of mere hours). The framers of the Constitution could not (even from a purely logical point of view) set out to determine the meaning of the word 'reasonable' for eternity if only because we have situation (e.g. Kyllo) that they could not possibly envision.

Gilbert, he was right.

Loophole, the Court in Plessey was just plain wrong. Separate but equal never satisfied the 14A and states in the South were essentially allowed to violate it with impunity for 100 years.
2.20.2008 10:49pm
Oren:
Loophole, I should add that the 14A broadly refers to 'privileges and immunities' of US citizen - a phrase that is obviously referential and not substantive. When the privileges of a US citizen expand, so too does the restriction on the states.
2.20.2008 10:53pm
Benjamin R. George (mail):
Oren: you were the one who said the meaning could change. I was trying to point out that, although this is likely to be true true for one sense of the word ‘meaning’, the semantics (as you put it) does not change. We seem to be in agreement. I apologize for any unclear or confusing meaning on my part. There is one not-too-uncommon sense of the word ‘meaning’ in which the meaning of a phrase and the semantics of that phrase are one and the same, and in this sense the meaning is generally unchanging. My suspicion is that Loophole is using ‘meaning’ in the sense where it's basically equivalent to how you're using ‘semantics’, and you're using it in the other sense.
2.20.2008 11:09pm
Oren:
Ben, on closer reading of your earlier comment I now realize I had the tone all wrong . . . my mistake.
2.20.2008 11:21pm
BruceM (mail) (www):
It makes perfect sense. For example, Courts have been erring and violating the Sixth Amendment every time they sentenced someone under mandatory sentencing guidelines. It's been going on for many years until the Supreme Court recognized the mistake and offically noticed it and corrected it.

This is why I was saying the other day that stare decisis is great for, say, evidentiary rulings, but improper for constitutional ones. The "it's better to be consistent than to be right" is improper when talking about the constitution. It is better to be consistent about what constitutes an excited utterance, or how the rule against perpetuities applies, or who can bring suit under ERISA... but not when it comes to what the Constitution means.
2.20.2008 11:21pm
sef:
Ummmm, if the right existed since the constitution was written, how then is this opinion consistent with Teague v. Lane. If a right always existed it can't be Teague barred.
2.20.2008 11:26pm
one of many:
I'm not certain about your analsis of the Miranda ruling being required. Miranda did not create new constitutional rights but instead created a procedural rule for ensuring the exercise of the already existing constitutional rights. You don't have a constitutional right to informed of your constitutional rights (what Miranda was about) but failure to be informed of those rights can be presumptively be considered a violation of those rights.
2.21.2008 12:01am
OrinKerr:
Bruce M writes:
It makes perfect sense. For example, Courts have been erring and violating the Sixth Amendment every time they sentenced someone under mandatory sentencing guidelines. It's been going on for many years until the Supreme Court recognized the mistake and offically noticed it and corrected it.
That's a very perplexing example, BruceM. The Blakely line of cases was made up out of thin air: it has no textual basis in a written constitution and the history support is quite weak for it. But it struck five Justices as a good idea in 2004, whether for rules/stadards reasons for for policy reasons, so in 2004 they decided to say the Constitution requires it. As far as I know, nothing remotely like this ever occurred to anyone for the first 200 years of the Republic (and no one expected Blakely to win, either -- no one saw the case coming, because no one thought there was much to the theory Blakely was arguing).
2.21.2008 12:14am
Sasha Volokh (mail) (www):
Orin: With respect to your extra credit question -- various originalists, like Michael Stokes Paulsen, have been making exactly that argument. In Paulsen's view, stare decisis for constitutional decisions is unconstitutional to the extent it makes you follow constitutional decisions you now think were incorrectly decided. One's judicial oath is to the Constitution, not to what some justices once thought the Constitution required. (Or you can replace "judicial oath" with whatever other normative force you think the Constitution carries.)

This may or may not be correct, but it strikes me as far from a loopy claim. Incidentally, it's probably fairly similar to Justice Thomas's views on stare decisis.
2.21.2008 12:23am
BruceM (mail) (www):
Orin: I agree with your history of Apprendi/Blakely/Booker. But take the people who were sentenced under mandatory guidelines before Booker and then appealed their sentences under plain error (granted there were some who caught wind after Blakely and were wise enough to object to the Sixth Amendment violation in anticipation of Booker). It was a given under plain error analysis that the sentencing judge erred merely by using the mandatory guidelines. The sentencing judge had absolutely no reason to think not to, and was actually legally bound to do so. It was a given on appeal that there was error (though the circuits were split as to what you had to show to prove prejudice for purposes of the full plain error test). In other words, it was a violation of the constitution before the supreme court said it was. It was always there, it just took the Court about 18 years to realize it.

Sasha: That's exactly what I've been saying. I've never read Paulsen's work on the subject but I'll have to check it out.
2.21.2008 12:59am
OrinKerr:
Sasha:

As much as I enjoy Paulsen's scholarship -- and I do really enjoy it -- the fact that he has a view does not mean it is not loopy. But more to the point, I think it is a position that none of the Justices share, although Thomas comes closer than the rest.
2.21.2008 1:35am
OrinKerr:
BruceM,

I don't understand your comment. Blakely error became plain error because five Justices decided in 2004 that it would be a good idea to change the law. The Court's precedents required the lower courts to then apply Blakely to pending matters still in the system.
2.21.2008 1:40am
eyesay:
Oren wrote: "the Court in Plessey was just plain wrong. Separate but equal never satisfied the 14A and states in the South were essentially allowed to violate it with impunity for 100 years."

Suppose in the wake of the 1896 Plessey decision, every segregated bathroom, water fountain, public transit vehicle, and other public amenity really had been equal. In principle, society could have been set up this way. If that had happened, and in particular, if the public schools in Topeka, Kansas, had been measurably equal — including, for example, similar college admission rates by the two sets of high school graduates — I think it is likely that Brown v. Board of Education of Topeka would never have been filed, and if it had been filed, on the same grounds, I think it is likely that the Supreme Court would not have ruled that "separate educational facilities are inherently unequal," because in this hypothetical, the separate educational facilities would have been substantially equal.

This, in turn, spotlights the silly conceit held by many on this blog that in every case, there is a discoverable original intent of the framers (and the amendments) and it is the job of the Supreme Court to render decisions based on that intent.

We had already had fifty-eight years of separate facilities being manifestly unequal. In 1954, A Supreme Court decision ordering Topeka to make its separate facilities equal, "and this time we really really mean it" would not have been worth the paper it was written on, so, given this long experience, the Supreme Court ruled that "separate educational facilities are inherently unequal." But this was only after 58 years of failure to comply with Plessey.

Original intent, bah, humbug.
2.21.2008 1:54am
BruceM (mail) (www):
Orin: Maybe it's all just a matter of semantics. Someone who was sentenced in federal court in, say, 2002, had his Sixth Amendment rights violated. Nobody knew it at the time. Judges are told they made a mistake even though they applied existing law, as they were bound to do. Much like the laws of physics, the Constitution itself does not change with time (unless it's formally amended), though our understanding and knowledge of it does. Sorta like how the sun has always been the center of the solar system, even when we all thought the earth was the center of the universe. There are many things about the Constitution that we have yet to discover.
2.21.2008 1:59am
OrinKerr:
Much like the laws of physics, the Constitution itself does not change with time (unless it's formally amended), though our understanding and knowledge of it does. Sorta like how the sun has always been the center of the solar system, even when we all thought the earth was the center of the universe. There are many things about the Constitution that we have yet to discover.

BruceM,

I have a confession to make: you're right. Indeed, when I was clerking, I was given access to the true Constitution for one year. I learned things about our Constitution that you will never imagine and that you probably would not understand even if I could tell you about them. Alas, I am sworn not to reveal these hidden truths about the Constitution before their time: you will have to wait for the Justices to reveal these truths over the years when the People are ready to hear them. It's better that way. (Although I should say, just for the record, that I for one welcome our new insect overlords.)
2.21.2008 2:11am
Cornellian (mail):
Much like the laws of physics, the Constitution itself does not change with time (unless it's formally amended)

Being able to amend the laws of physics would be extremely cool.
2.21.2008 2:22am
Cornellian (mail):
So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

So if I understand this logic correctly, any Supreme Court decision today on a constitutional issue of first impression is automatically absurd because we managed to go some 220 years without the Court seeing the true Constitutional issue? How many years would you allow for the Court to render a decision on every possible Constitutional issue?
2.21.2008 2:35am
OrinKerr:
Cornellian,

No, you are not understanding correctly. I do not at all suggest that the Court cannot get things wrong and then later get them right, or that it cannot reach issues today that it has not reached before. (Not quite sure why you would think to the contrary, but that certainly wasn't my suggestion or my intent.)
2.21.2008 2:44am
PersonFromPorlock:
Because the Constitution is the sole source of the government's authority, a precedent later found to be unconstitutional never legally existed at all - there was no authority for it to exist. So of course any revised interpretation of the Constitution was really the right one all along, for want of any other; and the one that overturns that one will be, too.

This is really just transparently obvious and only gets overlooked because people fall into the trap of thinking that government has some intrinsic authority. It's a hangover from the days of the divine right of kings, I think.
2.21.2008 2:45am
one of many:
I still think you're reading too much meaning into a constitutional rule. A rule is merely a guidline for ensuring that an already existing right is not being violated. In Miranda, once the court became aware of violations of self-incrimination rights it produced a rule to ensure those rights weren't violated, and recent caselaw seems to be indicating that the need for the rule is diminishing, not that the right not to self-incriminate is disappearing but merely that the rule requiring notification is no longer necessary. A rule is not constitutionally required ever, it is merely a method of ensuring that constitutional rights are not violated, and there are a variety of methods which can ensure rights are not ciolated; instead of adopting notification requirements in Miranda the court could have adopted a rule excluding all incriminating statements from being introduced at trial or forbidden police to even ask suspects any questions about crimes. A rule may have been able to be articulated at the time of founding, but the fact that it wasn't in no way invalidates a rule developed later to protect rights existing at the time of founding.

Since a rule is only a method for protecting rights, Stevens' point about retroactivity adresses the question of whether rights were violated prior to the adoption of this method of ensuring rights were protected. If there were no violations of rights prior to the adoption of the rule then it should not be applied retroactively, if rights were violated prior to the adoption of the rule then it should be applied retroactively if such application can remedy the violation of rights, and if rights were violated and retroactive application of the rule cannot remedy the violations then it should not be applied retroactively.
2.21.2008 4:01am
BruceM (mail) (www):
Orin, snarkiness aside, I think that things may actually work that way. America may not have been ready to learn the true meaning of the Constitution at the time of Dredd Scott, but we were ready by the time of Brown v. Board. Of course "the people are not ready for it" is a piss-poor theory of Constitutional interpretation. But then again, it may very well be the one that's been used for over two centuries.

Constitutional questions only have one right answer. There is only one answer to whether or not the 4th Amendment protects so and so. There is only one right answer to whether the first amendment protects so and so. The problem, of course, is that there's no way to verify the correct answer. But that doesn't mean it doesn't exist.... It's existed ever since the Constitution (or relative amendment) was ratified.

I know there is a school of thought that the Constitution is a "living document" and its meaning changes over time. But that's a different argument, and I figure most people here are not proponents of that theory of Constitutional law. I was under the impression that you were not, at the very least.
2.21.2008 4:13am
CommentHer (mail):
Can someone explain how the majority answered Justice Roberts' hypo: Let's say that a criminal defendant on habeas argues that he was convicted in violation of the Sixth Amendment ("6A") both as interpreted in Case A, which was on the books during his trial, and as interpreted in Case B, which overruled the Case A test and which was not decided until after his conviction became final.

Under the majority's logic, the test set forth in Case B was "always what the Sixth Amendment meant," so a state or federal court on habeas simply has to decide whether it will give a remedy for that right. But that can't be correct, the dissent says. Everybody accepts that a federal court, although it couldn't issue the writ for violation of the 6A test set forth Case B, would issue the writ for violation of the 6A test set forth Case A -- remember, Case A's test applied at the defendant's trial and the 6A was violated under that test.

It seems that there is a lot of force to the dissent's position that the question on habeas, federal or state, not "what remedy" to issue for violation of the 6A under Case B's test. It is what test to use to determine whether there is a 6A violation. For the sake of finality, sometimes we use the old, "wrong" test. That is a choice-of-law question.

Or what if there was a 6A violation under Case A test but not under the Case B test? Does anybody know whether a defendant would get habeas relief for a 6A violation under Case A, even though his rights were "never violated" because "Case B sets forth what the 6A always meant"?
2.21.2008 8:18am
OrinKerr:
I know there is a school of thought that the Constitution is a "living document" and its meaning changes over time. But that's a different argument, and I figure most people here are not proponents of that theory of Constitutional law. I was under the impression that you were not, at the very least.

BruceM, you are confusing normative and descriptive claims.
2.21.2008 9:56am
BruceM (mail) (www):
How so? I don't see that at all. Or maybe it's just that the last paragraph in my last post (the one you quoted) was meant more as an aside than as my actual point.
2.21.2008 11:19am
Lior:
@sef:
Ummmm, if the right existed since the constitution was written, how then is this opinion consistent with Teague v. Lane. If a right always existed it can't be Teague barred.

I'm not a lawyer, but the Court seems to say that while the right always existed, it may be too late for you to get a remedy for the violation. This is not dissimilar to statutes of limitations: if I wait too long to sue someone for defrauding me, then I lose my ability to get my money back -- even though fraud is still wrong.
2.21.2008 11:58am
Benjamin R. George (mail):
Is it possible that Stevens' intended meaning was:

‘[T]he source of any legitimate and proper "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.’

Of course, this still can't be quite right, since some details of a new rule will generally be arbitrary implementation decisions, but perhaps we can forgive that sloppiness as well.

That is, I think it's supposed to be a normative claim that can be used to analyze descriptive situation to the extent that one is already confident that a particular action of the court was normatively correct.
2.21.2008 12:08pm
Duffy Pratt (mail):
Bruce M:

You say that constitutional questions only have one correct answer. Why? For many questions, it seems perfectly obvious that there is no correct answer. At best, there are arguments of relative strength on either side. I'm sure there are other potential issues that have never arisen, but that might at some time. For these, there aren't even arguments yet. I don't see what is gained by insisting that there already a "correct" answer to these hypothetical issues.
2.21.2008 1:00pm
FWB (mail):
stare decisis - Sorry Columbus the world is flat. Now go away.

Errors can be made. Integrity demands correction.
2.21.2008 1:01pm
Chris B. (mail):
I understand the concern with a passage like this, and the reference to Holmes' admonitions against treating the law like a brooding omnipresence in the sky, but wouldn't a Federalist like Scalia agree with this as a normative statement of what the court should do?

I mean he might argue that Roe/Miranda are examples of times the Court has just made stuff up, but Scalia would *obviously* say that Crawford was an example of finally interpreting the Confrontation Clause correctly. Thus the "new rule," so defined by O'Connor in Teague, can be about "discovering" what the Constitution really says rather than crafting something out of thin air.

So I think you can agree with what Stevens said, and even agree that that is what is going on here with the retroactivity of Crawford and getting a "true" interpretation of the Confrontation Clause (as Scalia appears to feel), but then disagree that the Court acted properly in its role on other fronts (Miranda maybe, Roe, etc).

The significant thing to me is that seven justices signed on to that statement. I expect Scalia/Thomas/Roberts to invoke it in many a future dissenting case when they feel that Justices in the Danforth majority go beyond this limited judicial role.

I have always seen what Scalia the Federalist society have said as being a normative judgment about what judges should do. Everyone knows we're all realists and that judges are not always discovering law, but when it comes to the Constitution, that is what they *should* do, by examining the original intent, the text, tradition, etc, because the alternatives are less democratic by giving unelected judges too much power. I think that's wholly consistent with Danforth and Stevens' statement.

Now one might disagree with all of that as an approach to the Constitution, but I don't see anything internally inconsistent within the four corners of Danforth/Crawford. Unless you look at Stevens' statement as saying every currently standing Supreme Court decision is correct, which I don't think is what he's saying, I don't think Miranda is a damning counterfactual.
2.21.2008 1:02pm
Roy Englert:
The quoted passage is correct and welcome. Whatever one's theory of constitutional interpretation, the Supreme Court has no claim to legitimacy if it purports in its constitutional decisions to be making up law to impose on the States and on democratic institutions. Whether one is an originalist or believes in a "living Constitution," the only legitimate constitutional decisions are those grounded in the Constitution itself, not in some other source of "law."

It does not follow, however, that every constitutional decision was required at the time of the Framing. Changes in both law and society can lead the Constitution itself to change meaning over time. Miranda v. Arizona was not required at the time of the Framing for at least the simple reason that the Fifth Amendment privilege against compelled self-incrimination did not apply to the States at that time. In addition, it may be the case that coercive police interrogation techniques developed after the time of the Framing required new remedial measures to effectuate the constitutional command. Even a hard-core originalist, Justice Scalia, readily acknowledges that constitutional provisions must be applied to situations not envisioned by the Framers -- freedom of speech or of the press, for example, applies to television, which was beyond the Framers' wildest dreams. Red Lion Broadcasting v. FCC was surely not required by the Constitution at the time of the Framing (and it happens to have been a bad constitutional decision for other reasons), but just as surely it was not a more correct interpretation of the Constitution the day after the Court announced the opinion than the day before -- it was just more authoritative and binding.

I am not saying Miranda was right or wrong. I am only saying that the correct proposition that the underlying constitutional right necessarily preexists the Supreme Court's articulation of the new rule does not necessarily imply that any particular decision was mandated at the time of the Framing.

The correct statement that an underlying constitutional right necessarily pre-exists the Supreme Court's articulation of the new rule also does not imply anything about whether the Court should or should not adhere to prior constitutional decisions in the name of stare decisis. The Court always purports to rely on the Constitution -- not on naked power to overrule -- when it overrules old constitutional decisions. The Court necessarily says that the prior decision has become an inauthentic interpretation of the Constitution before the Court announces its overruling. Decisons can become inauthentic interpretations of the Constitution in many ways. The Constitution can be amended -- for example, to allow a federal income tax. The Constitution can change its meaning without amendment -- for example, as "reasonable" searches or seizures become "unreasonable" as a result of changes in society, or vice versa. Or the Constitution can have a fixed meaning that a majority of the Court is prepared to say was misconstrued in an earlier decision -- as in Lawrence v. Texas, which explicitly said that Bowers v. Hardwick was wrong when it was decided. In none of those circumstances, however, would the Court be likely to say that the Court's own decision changes the Constitution's meaning. Rather, the Court would say that it has announced the correct meaning of the Constitution -- just as correct the day before the decision as the day after the decision.

Now, it is fair game to criticize decisions like Miranda as constitutionally illegitimate because they constitute judicial legislation in the name of the Constitution rather than judicial interpretation of the Constitution. It is also fair game to defend decisions like Miranda on the ground that the Constitution speaks in broad generalities that the Court must, in the course of interpretation, translate into specific rules. But which side of that debate one takes has almost nothing to do with the proposition that "the underlying right necessarily pre-exists" the Supreme Court's "articulation of the new rule."
2.21.2008 2:41pm
Daniel Thomas (mail):
There has been a similar discussion going on at Scotus Blog though through a different lense.

FWB: I agree.

CommentHer: Roberts is correct to point out the inconsistency but that's because the underlying rule of retroactivity is plainly wrong. Sef is exactly right. The difficulty is not a legal one but a political one. The court doesn't want to appear "soft on crime" so it doesn't overturn criminal convictions and uses "finality" as a guise. The issue isn't one of law or of rights, it's of the real world consequences to the adminstration of justic that the SC is concerned about. Can you imagine the headline "SC rules one million murders, robbers, and rapist get new trials."

Checkenclosed. " That said, I couldn't be happier about Crawford, whether retroactive or not. Especially from a libertarian perspective, when the State seeks to deprive a citizen of liberty, the protection afforded by the law for that citizen should be greatest when the crimes charged are the most heinous. Whether one is charged with being a witch, communist, child-molester, or terrorist, **the rule of law should be most solicitous of those defendants who are most reviled.** That includes the right to confront accusing witnesses. The fact that it might be hard on the witnesses is exactly the point -- it should be hard to give testimony that results in the deprivation of another's liberty."

Thank you; have have been brutally attack over at Scotus Blog for advancing this very point.
2.21.2008 3:10pm
OrinKerr:
Roy,

I agree with the "should" part of this. But Justice Stevens was not phrasing this passage as a "should be", but rather as an "is." And that's the difficulty.
2.21.2008 4:06pm
Loophole1998 (mail):
Way back at my first comment I asked: If new rights can form independent of changes to the Constitutional text, where do these new rights come from? You denied the antecedent. I've been thinking about that and hope for some clarification.

Are you not saying that the Miranda rule was a new constitutional rule that formed in the 1960's, independent of any changes in the text (i.e., that it did not exist as a right until announced as such by the court)?

If so, what gives the court the power to invent new rules ancillary to the actual constitution?

Or is it too simply a matter of changing reference points?

If Miranda is not derived from the text, then what is its valid source?

I am not trying to be smart. I am legitimately curious.

From my untrained perspective, Justice Stevens quote makes perfect sense and your question about Miranda calls into question Miranda's legitimacy, not the logic of Stevens' quote.
2.21.2008 5:19pm
BruceM (mail) (www):
Duffy, there may be two or more very well-reasoned and plausible ways to interpret a section of the constitution. But only one of them is right. "Objective correctness" of sorts. The second amendment either gaurantees an individual right to bear arms or it does not. Both are not right. Only one is. The correct answer is impossible to objectively verify, but it's there (I believe, but cannot prove scientifically, that it does guarantee and protect an individual right to bear arms).

A corollary to this is that when the Constitution's text is clearly outdated due to advances unforseeable to the framers, our society has a duty to address the problem and amend the constitution. For example, perhaps the Second Amendment should be amended to explain what constitutes "arms" (semiautomatics, automatics, chemical weapons, nuclear weapons, or only weapons that existed at the time of ratification, etc...).
2.21.2008 8:07pm
Asher Steinberg (mail):
Loophole, the claim is that what is reasonable may change over time. Some would argue that we should somehow try to discern what the framers thought unreasonable searches were, but, besides the problem of technology that they couldn't foresee, one can ask whether strict originalism of that sort is really originalist - that is, whether the framers wanted us to base our interpretations of "open-textured" language like "unreasonable search and seizure" on the framers' own views as to what was reasonable, or whether they intended to create a general principle that could evolve over time. So Miranda rights, while they may not have been required by the Fourth Amendment in 1800, given what people believed to be reasonable at the time, did, perhaps, become necessitated by the Constitution at some point prior to the actual decision in Miranda. A better example for this kind of argument is the cruel and unusual punishments clause in the Eighth Amendment. Surely the fact that flogging was considered acceptable at the time the Bill of Rights was written doesn't mean that it would be a constitutional mode of punishment today. At the point that a consensus developed that flogging was cruel and unusual, it became unconstitutional.
2.21.2008 8:23pm
Duffy Pratt (mail):
Bruce M:

I disagree with the idea that a correct answer can exist, but be impossible to verify. If there isn't a reliable criteria for deciding whether an interpretation is correct, then it strikes me as nonsense to insist that nonetheless every interpretation is either correct or incorrect.

By the way, I think my point is pretty trivial when it comes to the Constitution. I think the same point should apply to fields like math. For example, its been postulated but never proven that every even number can be expressed as the sum of two primes (Goldbach's conjecture). Realists (or Platonists) believe that the statement is already either true or false, regardless of whether it can ever be proved. Other's reject the idea, and would insist that the statement is neither true, nor false, until it is proven.
2.21.2008 9:29pm
BruceM (mail) (www):
Duffy, the beautiful thing about mathematics is that you can always prove a conjecture true or false, though it may be extremely hard to do so. I suppose I side with the Realists/Platonists with respect to mathematics, and I think the same principal applies to constitutional law. The only difference being that one can't come up with a "proof" to show that the First Amendment does or does not protect kiddie porn. But either it does or it doesn't. The Constitution is not Schrödinger's cat where it both allows something and forbids it at the same time (a quantum constitution would be pretty cool though, albeit impractical).

Judicial opinions are the closest things to mathematical proofs that we have. Follow the logic towards an answer, then QED. However, just like a mathematical proof, it may take quite a while before the SCOTUS realizes the flaw in one of its preexisting legal 'proofs'. But the proof is wrong the entire time. "1 plus 1 equals 3" is not correct just because an erroneous but accepted proof states that it is.
2.22.2008 12:53am
Oren:
Are you not saying that the Miranda rule was a new constitutional rule that formed in the 1960's, independent of any changes in the text (i.e., that it did not exist as a right until announced as such by the court)?
Miranda did not create a new right - US citizens always had the right to remain silent. It only crafted a procedural rule to guarantee that right.
If so, what gives the court the power to invent new rules ancillary to the actual constitution?
The Supreme Court has always been empowered to enforce the guarantees of the Constitution.

If Miranda is not derived from the text, then what is its valid source?
Again, Miranda is a procedural rule whose purpose is to guarantee the rights in the 5A and 6A.

From my untrained perspective, Justice Stevens quote makes perfect sense and your question about Miranda calls into question Miranda's legitimacy, not the logic of Stevens' quote.
What is the SCOTUS supposed to do when there is widespread violation of a fundamental right such as in Miranda (or in Mapp v. Ohio where it was evident that not only did the police not follow the 4A but were openly in contempt of it)?
2.22.2008 1:19am
Duffy Pratt (mail):
Bruce N:

OK. At least we know how we disagree. I can say with certainty that you are wrong about Mathematics. Godel proved that, in any first order logic powerful enough to do arithmetic, there is at least one well formed statements (conjectures) that cannot be proved.

Logic itself doesn't yield the kind of determinacy that you insist upon. And legal reasoning proceeds largely by analogy, and only sometimes by logic. Not only that, but what counts as "proof" in law changes with time and fashion. For example, things like balancing tests are a quite recent invention of legal reasoning, as are "levels of scrutiny", and all sorts of other analytic devices. At the same time, rules of pleading that were ubiquitous in the common law have fallen by the wayside. Since the very rules of decision that judges use to derive their "proofs" are so malleable, and since the same rules are extra-Constitutional, I think its hopeless to expect that there is a determinate answer to every constitutional question.
2.22.2008 6:19am
markm (mail):
Miranda did not establish a new right. It established a new procedure to better protect a long-recognized right. A Miranda warning may not have been required in 1791 when professional police departments were exceedingly rare, but when nearly the whole country was covered by law enforcement professionals who studied interrogation techniques, something to restore the balance became necessary.

In fact, considering the number of cases where confessions have later been proven false by DNA evidence, maybe we need something more than the Miranda warning - not to protect the guilty, not even just to protect the innocent, but to force detectives to work harder at developing and following other leads so they don't miss the real criminal when they wrap up a case quickly by extracting a confession. The rights don't change, but experience can show that procedures have to change to protect them.

As for "separate but equal": That was a bad decision not because it violated the 14th Amendment, but because it was based on a lie. Black parents did not carry a case to the SC just to try to move their kids to one school to another of equal quality, and the SC knew it. The SC followed this up by doing absolutely nothing to ensure schools and other segregated facilities were equal. If the justices base their decision on a lie about the facts, it's going to be a bad decision.
2.22.2008 9:26am
Oren:
Markm, I disagree. Separate but actually equal is still a violation of the 14A.
2.22.2008 2:57pm
markm (mail):
Oren: In what way? I agree that it wasn't a practical remedy for separate and unequal conditions - the courts weren't about to inspect every water fountain and public restroom in the south, let alone take over management of schools in the south and much of the north, too - but if a particular instance of separate facilities were demonstrated to be equal, what clause in the 14th is violated?
2.23.2008 8:33am