Food For Thought…

November 8, 2007 |  Tagged , , | Comments Off on Food For Thought…

…and possibly an olive branch?

There was a big to-do in the Supreme Court on Wednesday as the Justices heard oral arguments in the Danforth v. Minnesota case. The issue in that case is, if the Supreme Court recognizes a new rule of criminal procedure and says it will not apply retroactively, whether state courts can decide that it shall apply in state post-conviction proceedings. It may be metaphysical, but one can only imagine the importance of the issue.

There are two reasons we should all agree that states can make new procedural rules retroactive even when the Court does not. The first is easy– federalism. It’s about power — how can the Supreme Court say that state courts do not have the power to make these new constitutional rules retroactive when those same states could at once adopt the rule as a matter of state constitutional interpretation and decide those rules are retroactive? And if a state court did adopt a retroactive version of a new procedural rule, as a matter of political authority there would be nothing the Supreme Court could do about it, short of deciding that some arbitrary clause of the Constitution (I’ll go with the Supremacy Clause) forbade states from interpreting their state constitutions except in conformity with the Supreme Court. Basically, it seems that to reach the conclusion that state courts can’t do this the Supreme Court has to forgo its “independent and adequate state grounds” doctrine. That is, the Constitution would at once be the minimum and the maximum of the rights available to the citizens of this country. That’s some strange concept of federalism.

Second, there is a more basic question of interpretive theory. Originalists deny that the meaning of the Constitution can change over time (referential meanings might be more flexible, but that’s not really the point). Those who believe in the “living Constitution” are less clear about it, but generally believe that for a Constitution to be legitimate it must bear some relation to the people it is meant to govern. Both theories want to be objectively true (or else this ongoing debate is a real waste) because if your theory is that the Constitution means whatever the balance of some subjectively derived set of values dictates then all of a sudden you are not talking about a Constitution, or even about law. Even the political-power theory of Constitutional meaning (that the Constitution means whatever its enforced, or enforceable, dictates happen to be at the time) would ground its theory in something like might-makes-right. So what would it mean for the Court to give up the ghost and just say that it is making bald faced policy and that as such its purpose is defeated by interference.

So I want to throw this out there: why is there any disagreement? It seems like this is something liberals and conservatives could agree on. Incidentally, if anyone from the Federalist society is reading this, please let me know what your thoughts are.

(SCOTUS Blog Post)

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