December 16, 2013

The Constitution’s Vanishing Act

For decades, Supreme Court justices have been rewriting key parts of our governing document.

The United States Constitution is at its core a classical liberal document. But over the last hundred years, much of it has turned into a progressive text thanks in large part to Supreme Court justices who interpret it creatively, thereby skirting the laborious amendment process of Article V. Here, I address one major, if underappreciated, cause of the problem—the fine art of making its critical words and letters just disappear through the Court’s imaginative application of its power of judicial review. This constitutional disappearing act does not take sides in the longstanding debate over judicial restraint and activism. In some cases, it unduly expands judicial power; in other cases, it wrongly contracts it. The two best illustrations of how this process works are found in the Eighth Amendment and in Article 1, which sets out the federal government’s taxing power.

Cruel and Unusual Punishments

The Eighth Amendment reads in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Its use of the passive voice creates an interpretive ambiguity. Does the amendment bind only the federal government or does it bind the states as well? Using the word “excessive” twice in one 16-word sentence is not a model of clarity.

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Illustration by Barbara Kelley

But for these purposes, the most critical word is “punishments.” The letter “s” has disappeared during the arduous process of constitutional interpretation. Just Google the phrase “cruel and unusual punishment,” and 1,740,000 entries come up. Add the “s” and that number drops by 80 percent to 330,000 entries, most of which refer to punishments without the “s.”

The importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime sentence for a fourteen year-old guilty of murder. In writing her opinion, Justice Elena Kagan included the “s” in quoting the clause. But during the analysis, that “s” disappears, thereby transforming the constitutional text:

The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense. 

Justice Kagan faithfully references earlier cases that take her position. But the wealth of precedent does not conceal the major shift in constitutional focus. The prohibition against “cruel and unusual punishments” conjures up a list of punishments that should be rejected because they are cruel, no matter what the offense. The issue of proportionality never arises.

That interpretation makes sense because this clause is lifted word for word from the English Bill of Rights of 1689, after it accuses the deposed King James II of inflicting “illegal and cruel punishments.” The clause outlaws the rack, the thumb-screw, drawing and quartering, and other fiendish activities. In no sense did it outlaw the death penalty. Nor could that reading be sensibly made of our own Constitution, whose Fifth Amendment contains references to the death penalty in connection with due process, grand jury presentments, and double jeopardy.

Yet once the “s” is dropped, it is far easier to read the clause as Justice Kagan did, demanding proportionality between the offense and the punishment. At this point, the Court can question the death penalty in many cases, including child rape. In 2008, the Court in Kennedy v. Louisiana found that the Eighth Amendment should be read in light of “the evolving standards of decency that mark the progress of a maturing society.” But this line of reasoning is simply pop sociology. Historically, there has been much principled and popular opposition to the repeal of the death penalty that should not be so easily cast aside.

Even the most austere account of limited government offers no coherent theory to explain whether the death penalty should be retained or junked, and if so, for what offenses. If there were ever a legislative function, this is it. The disappearance of that “s” was not just a random event. It paved the way for the justices to create a code of criminal sentencing, whose effects are so widespread and profound that it must be regarded as a constitutional amendment, and an unwise one at that.

The Taxing Power

My second example of a disappearing constitutional provision concerns the taxing power found in Article I:

Section 8. Clause 1. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

This clause is a big deal because it remedies one of the major defects of the Articles of Confederation, under which the federal government had to beg the individual states for the revenues needed to discharge its own collective function. But in overturning earlier practice, the Founders were nervous about lurching too far in the opposite direction, so they limited the general power of taxation to three specified objects: “payment of debts, provision of common Defence, and the general Welfare of the United States.”

So it is important to understand that the clause is not a catchall that sweeps in every objective under the sun. Federal taxes are meant to fund only a short list of public—i.e. nonexcludable—goods that only the central government can provide. The Congressional power to levy taxes is needed to prevent free-riding by individual states. The limited purposes help prevent politically corrosive cross-subsidies between states that could sink the Union.

The proper interpretation of the clause raises thorny questions about whether, for example, the United States could provide disaster relief that benefits some but not all states. President Grover Cleveland thought that the answer was an emphatic “no” in 1887 when he vetoed the Texas Seed Bill, which allocated $10,000 for Texas drought relief. Under the Constitution, he did “not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.”

Indeed, the vital element in this clause is that it prohibits any transfer payment from one group of individuals to another, as those cannot serve the “general welfare of the United States.” To see why, take the analogous case where a corporate charter allows the Board of Directors to adopt only those measures that advance the general welfare of the corporation. Without question, the so-called business judgment rule insulates corporate officers and directors when they work in good faith to advance the welfare of the corporation, and thus all its shareholders, in transactions with third parties. But it is a per se violation of that rule for the directors to tax one subclass of shareholders in order to pay dividends to a second subclass. All transfer payments among shareholders clearly violate their duty to advance the welfare of shareholders as a group.

That same logic applies to the federal constitution, where the words “of the United States” block any abuse of the power of taxation to secure a system of individual transfer payments. As with corporations, the long-term health of the polity depends on cutting down transfer payments that give rise to factional battles. Yet those critical words “of the United States” have disappeared in the case law, most recently in National Federation of Independent Business v. Sebelius, where Chief Justice Roberts relied on the taxing power to uphold the individual mandate under Obamacare, after rejecting the view that it fell within the scope of the Court’s indefensibly broad reading of the commerce power.

Chief Justice Roberts reached his conclusion by invoking Congress’s enumerated power to “lay and collect Taxes”—full stop—which makes it a lot easier to conclude that “the breadth of Congress’s power to tax is greater than its power to regulate commerce.” Although he first quotes the clause in full, it is no accident that his actual analysis stops with the words “general Welfare,” which is then entrusted to the determination of Congress.

The four conservative justices (Scalia, Kennedy, Thomas, and Alito) also disregarded the original understanding when they wrote in the dissent, “The power to make any expenditure that furthers ‘the general welfare’ is obviously very broad,” giving Congress “wide leeway to decide whether an expenditure qualifies.” In so doing they bought into the low-scrutiny rational basis test, which bears no relation to the text, history, or structure of the Constitution. They are surely right that, since the New Deal, no taxation program has been found to fall outside Congress’s taxing power, which is what makes their dissent so unpersuasive.

The consequences of this constitutional disappearing act are enormous. The full range of federal transfer programs is not sustainable under any sensible interpretation of either the commerce or the taxing power.

Think of the disastrous Obamacare program. Focusing solely on the individual mandate meant that the weird collection of unsustainable special taxes and this vast expansion of the taxing power passed constitutional muster without a murmur of judicial protest. This is especially ironic as we grapple with the near bankruptcy of hundreds of federal transfer programs—including unemployment benefits, social security, Medicare, and Medicaid—which were only created because judicial interpretation vaporized key constitutional terms.

These two constitutional vignettes are, in one sense, polar opposites. The current law on cruel and unusual punishments injects the Supreme Court into matters that properly fall beyond its purview, while the taxing power cases remove the judicial oversight needed to prevent government bankruptcy. Both errors stem from the willingness of the justices to drift ever farther from the constitutional text on matters of first principle. Sure, the Constitution raises lots of thorny issues. But those complexities should never let us overlook this simple proposition: Every word of the Constitution must be quoted and analyzed. The Constitution is short and to the point. Making words disappear is the surest way to distort its meaning. 


Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).


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