"Explaining" justices

[Sanford Levinson]

For the record, I agree with David that "abhorrent and immoral" behavior by the state is not necessarily unconstitutional.  As Larry Sager and Chris Eisgruber argued in the book on Constitutional Stupidities, Constitutional Tragedies that Bill Eskridge and I co-edited some years ago, one can certainly believe that a given war that the US is conducting meets both of those terms, but that does not equal "unconstitutionality."  Had the prison cases been cases of first impression, perhaps we could all have an argument about whether the Constitution should be "extended" to cover prison conditions.  But as Marty points out, the cases were far from being "unprecedented," and what repelled most people about Thomas's dissent in Hudson was the seeming callousness of the description of the violence visited, without justification, upon the plaintiff, criminal thought he may have been.  
 
If one is doing psychological analysis, an intervening variable, of course, is who actually wrote the opinion in question.  But even if a clerk did the writing, it's still interesting that he/she would assume that Thomas would raise no protest at appearing so callous.
 
Consider, incidentally, the first paragraphs of Frankfurter's dissent in Barnette (which certainly supports David's point about the potential authoritarianism of public schools :) ):  Could or should any biographer of FF resist the temptation to offer a psychological analysis of Frankfurter's "hyper-Americanism," derived, at least in part, from the fact that he was both an immigrant and Jewish?  Or, to take another similar example, should a biographer if Irving Kaufman avoid psychology when trying to explain his particular vehemence toward the Rosenbergs (independent of the question of guilt)?  Or, to take a somewhat different example, perhaps Warren's commitment to civil rights during the '50s and 
'60s is in part explained by his (justified) guilt about his quite odious behavior as California's Attorney General during the Korematsu period, when he avidly supported the rounding up of Japanese-American citizens (as well, of course, a Japanese resident aliens), just as one suspects that Hugo Black wanted to make sure that his past as a member of the KKK was wiped out by virtue of his commitment to desegregation.  
 
sandy
 
 

________________________________

From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com]
Sent: Sun 6/3/2007 8:19 PM
To: Sanford Levinson; hendersl at ix.netcom.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: "Explaining" justices


I think Thomas may have noted that he would be more sympathetic to a due process claim, but none was made. Again, I haven't really thought much about prisoners' constitutional rights, I just am not prepared to say that just because I find certain behavior by prison officials abhorrent and immoral that it's necessarily unconstitutional, much less whether it violates a specific provision of the Constitution.
 
You're right, though, Sandy, I do think that public schools are perfectly constitutional.  Oops, wait, you were talking about some other kind of statist authoritarianism? (That was joke, folks, please no angry emails from public school defenders).
 
In a message dated 6/3/2007 8:51:06 PM Eastern Daylight Time, SLevinson at law.utexas.edu writes:

	
	Forget the 8th Amendment; it also constitutes a deprivation of life, liberty, or property without due process of law.  
	 
	I had not realized that the principled libertarian Prof. Bernstein turns out, under goading, to embrace statist authoritarianism as perfectly constitutional.
	 
	sandy

 
 
David E. Bernstein
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste



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