Saturday, October 01, 2005

A Life Term Means a Life Term

"No law means no law."
(Bonus points if you know where this quote is from and what it's referring to.)

Now, I may be a liberal and all that, but I'm also a big believer in words having a real meaning and a real impact. So, believe it or not, I'm not incredibly disturbed by this Times article which points to a new phenomenon: that many people sentenced to life in prison are actually staying in prison for, well, life.

Imagine that!


At 10/1/05, 8:38 PM, Blogger AMSHINOVER said...


At 10/1/05, 9:05 PM, Blogger Eli7 said...

If that was a guess, Amshinover, it's wrong. Sorry. Please play again.

At 10/2/05, 9:14 AM, Blogger Nephtuli said...

Hugo Black, although not sure which case. He's referring to the First Amendment's protection of freedom of speech, which requires Congress to make "no law" infringing on freedom of speech. Interesting enough, even Black did not completely disagree with the need to balance freedom of speech with other rights, although he supported balancing in very special circumstances.

But does your support for Black mean you're a textualist? Do you disagree with the thought that the 8th Amendment forbids the death penalty, considering the Constitution itself allows it?

At 10/2/05, 9:25 AM, Blogger Eli7 said...

Good job, Nephtuli!

I don't really support Black, especially since as you noted he wasn't entirely consistent himself. I just thought that the quote kinda related to my blog post, which is not to say I'm a textualist, I just think that if you're sentenced to life in jail, it's not odd that you should actually serve your entire life in jail, and I thought the article suggesting that this was a strange phenomenon was kinda funny. That's it.

I am certainly not a Constitutional textualist.

At 10/2/05, 9:41 AM, Blogger Nephtuli said...


If you believe words should have meaning, why aren't you a Constitutional textualist? Those two positions seem to go hand in hand.

At 10/2/05, 9:48 AM, Blogger Eli7 said...

I would venture a guess that all the Supreme Court justices believe words have meaning. Law is, after all, recorded in words, so it's the words that must convey meaning. The question is, how much meaning we choose to put in the strict interpreation of the text.

And while I am a big believer in words, I am a bigger believer in the ideas that the Constitution conveys. I believe the words of the Constitution have real importance, I just don't believe that we can or should interpret them completely literally without any regard to what they are actually conveying.

At 10/2/05, 10:01 AM, Blogger Nephtuli said...


Some believe the words mean more than others. For example, some justices have ruled that the Constitution forbids the death penalty because it's "cruel and unusual." But the 5th/14th Amendments explicitly allow the government to take life if it's done with due process. So the death penalty can be applied if it's taken with proper procedures. Any other reading of the Constitution ignores the plain meaning of the text.

I believe the words of the Constitution have real importance, I just don't believe that we can or should interpret them completely literally without any regard to what they are actually conveying.

No one believes that, not even Scalia (the right to bear arms could be read as allowing us to own bear appendages). The question is whether we should apply the Constitution as properly understood when it was passed, which would make sense if we are trying to ascertain the meaning of the words, or whether we should read our current understanding of the terms into the Constitution. The latter seems to negate the purpose of a Constitution which is to enshrine certain rights in stone. If five unelected judges can change our rights at the drop of a hat, based on nothing more than their moral intuitions, then why have a Constitution at all?

At 10/2/05, 2:52 PM, Blogger Stx said...

"Why have a Constitution at all?"

Excellent question. Eli7, go ahead and tackle that one!


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