The Constitutional Convention That Never Ends

Some enlightened thinker, writing a thousand years hence, will no doubt marvel at the elaborate show of make-believe that passes for judicial review in this golden age of ours. Every Supreme Court session brings a fresh batch of interpretive atrocities, most of them clearly based on nothing more than its members’ raw policy preferences. And yet bench and bar alike go on speaking as if the Court is merely “applying the Constitution.”

This morning’s sitting witnessed the unveiling of another masterpiece in deception—the Supreme Court’s recent discovery that life imprisonment without parole is a “cruel and unusual punishment[]” when imposed automatically on a juvenile convicted of murder. Whatever one thinks of this decision, it has all the markings of judicial legislation, and the same foul odor. Neither founding practice nor modern statutes support the Court’s new rule. By the majority’s own count, 28 states plus the federal government impose mandatory sentences of this sort. (The Court attempts to evade the force of this objection by noting that in the states that don’t have these mandatory sentences, “sentencers impose life without parole on children relatively rarely.” But those states are of course a minority of the total.)

Not content to stop there, the Court adds that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” A convenient notion, that! Once it has made these sentences uncommon, the Court will be able to cite their rarity as a ground for forbidding them altogether.

At this point I should note that I am not really calling for reform. All I ask is that we drop the tired pretense that the Court is simply “interpreting” a Constitution adopted in 1788. It is inventing a Constitution for 2012, with no deference to tradition and very little to contemporary practice.

3 comments on “The Constitutional Convention That Never Ends

  1. Of course judicial interpretation is not going on according to some “original constitutional intent” that never existed in the first place. The idea that one could write down all the rules for a respulica and that the people who lived 10 generations after you would feel compelled to keep following those rules was just rationalist hubris in the first place.

  2. Once it is settled that judicial interpretation is not going on according to the original understanding, it has to be wondered what it is going on according to. In this case, the only honest answer is one that everyone is at pains to deny: the personal prejudices of five politically connected lawyers.

    Was this sort of thing inevitable? Pretty much. Constitutional courts around the world are dipping their feet in the mud of policy-making, so the American experience certainly isn’t a fluke. The conclusion I draw from that is that judicial review was a mistake.

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