We The People Legal Primer - Prison Book Program

First Edition Condensed May 2004
Sixth Amendment. Provision for: adequate notice of
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accusation, assistance of counsel, speedy trial, public trial by
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a state could require everyone to marry, or to have intercourse
jury of peers, compulsory process for obtaining witnesses, and Justifications for Originalism.
at least once a month, or it could take away every couple’s
confronting adverse witnesses.
• Originalism reduces the likelihood that unelected judges will second child and place it in a foster home. ... We find it
Eighth Amendment. Prohibition against: excessive bail,
seize the reigns of power from elected representatives. reassuring to think that the courts stand between us and
excessive fines, and cruel or unusual punishment.
legislative tyranny even if a particular form of tyranny was not
• Originalism in the long run better preserves the authority of foreseen and expressly forbidden by framers of the
State constitution and statute(s). In addition to these federal the Court.
Constitution.”
protections applying to state cases, the particular state’s • Non-originalism allows too much room for judges to impose
constitution or statute(s) may offer even broader protections.
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their own subjective and elitist values. Judges need
THE HISTORY OF LAW
––––––––––––––––––––––––––––––––––––––––––––––––– neutral, objective criteria to make legitimate decisions. The
AN OVERVIEW OF STATE CONSTITUTIONS
understanding of the framers and ratifiers of a constitutional Ur-Nammu’s Code, 2050 BC. The Sumerian King Ur-
(Space limitations do not allow the reproduction
clause provides those neutral criteria.
Nammu founded and ruled the third dynasty of the ancient city
of Ur. Ur-Nammu promulgated the oldest code of law yet
or the analysis of the 50 state constitutions; thus, • Lochner v. New York (a decision widely considered as a known, consisting of a prologue and seven laws, although of
this section provides only an overview of them.)
bad non-originalist decision).
such poor physical condition that scholars can decipher only
Each of the 50 states has enacted its own constitution, and • Leaving it to the people to amend their Constitution when five of its articles. Archaeological evidence shows that an
each state constitution contains a bill of rights to protect
necessary promotes serious public debate about
advanced legal system supported it. This system included:
citizens from unnecessary governmental intrusion into
government and its limitations.
specialized judges, the giving of testimony under oath, the
individual liberties. State constitutions may go further than the
proper form of judicial decisions, and the ability of the judges to
• Originalism better respects the notion of the Constitution
US Constitution in the rights they explicitly extend to state
order that a guilty party pay damages to a victim. The Code
as a binding contract.
residents. For example, the US Constitution does not explicitly
allowed for the dismissal of corrupt officials, protection for the
give citizens the right to use obscene speech and print
• If a constitutional amendment passed today, we would poor, and a criminal system with the punishment proportionate
obscene literature, but Oregon’s constitution specifically
expect a court five years from now to ask what we intended to the crime. Although called “Ur-Nammu’s Code,” scholars
protects obscenity as free speech.
to adopt.
generally agree that his son Shugli wrote it.
While a state can give its citizens broader rights than those in • Originalism more often forces legislatures to reconsider Hammurabi’s Code, 1700 BC. The Babylonian king
the US Constitution, it cannot narrow the rights set forth in the and possibly repeal or amend their own bad laws, rather Hammurabi came to power in 1750 BC, and he established
US Constitution. For example, the US Supreme Court would than to leave it to the courts to get rid of them.
the greatness of Babylon, the world’s first metropolis. His
strike down a state constitutional provision that banned all Originalist Justices.
officers developed a code of laws and had them carved on a
firearms as violating the US Constitution’s Second
Justice Hugo Black, Justice Antonin Scalia,
huge rock column meant for public display. Historians know
Amendment’s guarantee of the right to bear arms.
Justice Clarence Thomas, and Judge Robert Bork.
his laws as the first example of a ruler to publicly proclaim an
entire body of law to the people. The expression “an eye for an
State constitutions contain provisions that determine the way in Judge Bork on Originalism: “If the Constitution is law, then eye” has come to symbolize the principle behind Hammurabi’s
which a state exercises its “police power”— meaning its right to presumably its meaning, like that of all other law, is the
code –meaning that the bodily damage of the punishment
pass laws that protect public morals, safety, and well-being. meaning the lawmakers were understood to have intended. If could equal but not exceed the bodily damage caused by the
For example, a state exercises its police power when it
the Constitution is law, then presumably, like all other law, the crime. Although some people may think that this code
regulates schools and hospitals and sets licensing
meaning the lawmakers intended is as binding upon all judges invented brutal punishments, it actually limited the more
requirements for professionals, health standards for
as it is upon legislatures and executives. There is no other extreme brutalities previously practiced under older laws. The
restaurants and theatres, and vaccination requirements for sense in which the Constitution can be what article VI
code contains 282 clauses regulating a vast array of
school children.
proclaims it to be: ‘Law....’ This means, of course, that a judge, obligations, professions and rights including commerce,
And, like the US Constitution, state constitutions also contain no matter on what court he sits, may never create new
slavery, marriage, theft and debts. Modern societies view the
provisions specifying the procedures for their own amending. constitutional rights or destroy old ones. Any time he does so, punishments as barbaric. The law prescribed the death
he violates not only the limits of his own authority but, and for
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penalty for their more serious crimes, such as: perjury in a
that reason, also violates the rights of the legislature and the
INTERPRETATIONS OF THE CONSTITUTION
capital offense case, theft of an object from a temple, breaking
people....the philosophy of original understanding is thus a and entering, or kidnapping. The law punished a thief with the
Introduction. Five sources have guided the courts in their necessary inference from the structure of government
cutting off a finger or a hand, punished a man who kissed a
interpretation of the Constitution:
apparent on the face of the Constitution.”
married woman with the cutting off his lower lip, and punished
1. the text and structure of the Constitution,
····················································································· someone who defamed another with cutting out the person’s
2. the intentions of those who either drafted, voted to
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tongue.
propose, or voted to ratify the provision in question, Justifications for Non-originalism.
The Ten Commandments, 1300 BC. According to the Bible,
3. prior precedents (usually judicial),
• The framers at the Convention in Philadelphia indicated Moses received a list of ten laws directly from God. Known as
that they did not want their specific intentions to control the Ten Commandments and written as part of the Book of
4. the social, political, and economic consequences of
interpretations.
Moses, they became part of the Bible. Many of the Ten
alternative interpretations, and
Commandments survive in Judeo-Christian cultures as
• No written Constitution can anticipate all the means that
5. natural law.
modern forms of “Do not kill,” “Do not steal,” and “Do not lie
government might in the future use to oppress people, so
about others.”
Influence. Interpreters of the Constitution generally agree that judges must sometimes fill in the gaps.
the first three of these sources provide appropriate guidance
Draco’s Law, 621 BC. Draco, a Greek citizen, wrote the first
• The framers had various, and often transient, intentions,
for interpretation, but they certainly disagree as to the relative
written laws of Athens (in ancient Greece). The code punished
and often impossible to determine. Text often contains
importance of each when they guide the courts in different
many offenses with death; and thus, the English word
ambiguities, and judicial precedents often exist which
directions. Many interpreters consider the consequences of
“draconian” (drah-KOH-nee-an) came from his name and
support either side. In such cases, why not produce the
alternative interpretations (#4 above) as irrelevant, even when
means an unreasonably harsh law. These laws introduced the
result that will best promote the public good?
the other sources of guidance (#1 through #3) neutralize each
idea of the state’s exclusive role in punishing persons accused
other. Interpreters only infrequently suggest natural law (#5: • Non-originalism allows judges to head off the crises that of crime, instead of relying on private justice which citizens
God’s law, higher law) as an interpretive guide, even though could result from the inflexible interpretation of a provision previously practiced.
many of the framers of the Constitution recognized its
in the Constitution that no longer serves its original
Twelve Tables of Rome, 450 BC. (“Duodecim Tabularum” in
appropriateness.
purpose. The nation cannot rely upon the very difficult Latin) Experts consider the Twelve Tables of Rome as the
amendment process to save us.
The term “originalists” refers to persons who favor heavy
most important codification of law in history. Twenty-five
reliance on originalist sources (#1 and #2). The term “nonoriginalists”
refers to persons who favor giving more
more enlightened understandings on matters such as the patricians (pah-TRISH-anz) (the nobles) controlled all the
• Non-originalism allows the Constitution to evolve to match hundred years ago during the early formation of Rome, the
substantial weighting to precedent (#3), consequences (#4), or equal treatment of blacks, women, and other minorities. rights and privileges of the government in Rome. Patrician
natural law (#5). In practice, disagreement between
• Brown v. Board of Education (a decision widely considered judges kept the law in their collective minds and, thus, away
originalists and non-originalists often concerns whether to
as a bad originalist decision)
from the plebeians (the common people). The plebeians (plihapply
heightened judicial scrutiny to certain “fundamental
BEE-anz) (or plebes (PLEE-beez)), on the other hand, had the
• Originalists lose sight of the forest because they pay too
rights” which the text of the Constitution does not explicitly
burdens of paying taxes and serving in the military.
much attention to trees. The nation ought to focus on the
protect.
larger purpose—the animating spirit—of the Constitution ... In about 450 BC, the plebes called a strike to protest the unfair
Definitions.
the protection of liberty.
advantages of the patricians. The patricians capitulated and
gave the plebes more control over the government and
“Textualist” refers to an originalist who gives primary weight to • Nazi Germany (originalist German judges did not exercise allowed them to elect officials to represent them. Roman
the text and structure of the constitution. Textualists often
the power they might have otherwise had to prevent or citizens elected the Decemvirs (meaning “ten men”) and gave
doubt the ability of judges to determine collective “intent.”
slow down inhumane Nazi programs).
them the unprecedented powers to draft the statutes of the
“Intentionalist” refers to an originalist who gives primary weight Non-originalist Justices. Justice Harry Blackmun, Justice early Roman Republic. Three Decemvirs traveled to Greece
to the intentions of the Constitution’s framers, members of William Brennan, Justice William O. Douglas, and Justice to learn about life and law there as well as in other Greek
proposing bodies, and ratifiers.
Richard Posner.
communities.
“Pragmatist” refers to a “non-originalist” who gives substantial Judge Richard Posner on Non-originalist Gap-filling: “A The Decemvirs then codified the customary Roman laws,
weight to judicial precedent or the consequences of alternative Constitution that did not invalidate so offensive, oppressive, including some Greek elements, and put them on public
interpretations, so as to sometimes favor a decision
probably undemocratic, and sectarian law [as in the
display. They invited all of Rome to read the statutes, to
considered “wrong” from the originalist view but “right” because Connecticut law banning the use or distribution of
personally consider them, to discuss them with friends, and to
it promotes stability or in some way promotes the public good. contraceptives] would stand revealed as containing major bring any desired changes to public hearings. Thus, each
“Natural law theorist” refers to a non-originalist who believes gaps. Maybe that is the nature of our, or perhaps any, written citizen had a fair say in the laws, which allowed the strongest
that higher moral law ought to triumph over inconsistent Constitution; but yet, perhaps the courts are authorized to plug possible consent by every citizen. The Roman government
positive law.
at least the most glaring gaps. Does anyone really believe, in then inscribed the finished laws onto twelve bronze (or
his heart of hearts, that the Constitution should be interpreted wooden) tablets – the “Twelve Tables of Rome” – and put
so literally as to authorize every conceivable law that would not them on permanent public display in the Roman Forum (the
A free primer. For imprisoned people only, – page 5 – who can reproduce it without permission.