Edward Lazarus: Two Important Supreme Court Anniversaries for 2008
[Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court .]
The turning of a New Year goes hand in hand with a new set of anniversaries to be recalled and reflected upon. Supreme Court history will yield a number of these, including, in 2008, the 50th Anniversary of Trop v. Dulles and Cooper v. Aaron.
Both cases were very much products of the great issues of their day. And both have transcended their particular contexts (though these contexts were and are significant in themselves) to importantly shape the modern history of the Court.
Trop v. Dulles: Can a Military Deserter Lose His Citizenship? Chief Justice Earl Warren's Evolving Interpretation of the Eighth Amendment
At issue in Trop v. Dulles was whether Congress had the power to take away the citizenship of a person convicted for desertion during wartime. By a 5-4 vote, the Court ruled that Congress had no such power.
Writing for himself and three others, Chief Justice Earl Warren ruled that denaturalization - "the total destruction of the individual's status in organized society" - was a Cruel and Unusual Punishment prohibited by the Eighth Amendment. According to Warren, the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" - and those standards of decency forbade Congress from stripping someone involuntarily of their citizenship.
Interestingly, Justice William Brennan deprived Warren of a majority for his position. Brennan concurred separately on the narrower ground that taking away citizenship for desertion during wartime was not a rational exercise of Congress's war powers - and, accordingly, was beyond Congress's authority - and thus had no reason to reach the Eighth Amendment issue raised.
But even if Warren's rationale did not command a majority, his approach to defining the Eighth Amendment - the idea the its meaning would evolve over time, and could be determined according to contemporary morality -- became emblematic of an entire way of thinking about the Constitution. Indeed, no decision more perfectly captures the idea of a "living Constitution" - the idea of a charter that each generation must interpret in light of its own felt necessities - than Trop.
In this sense, Trop was a harbinger of the Warren Court's dramatic expansion of civil rights and civil liberties, for it took a fresh, contemporary look at the constitutional promises of due process and equal protection. And by the same token, Trop is appropriately viewed as a main source for the great liberal/conservative juridical debate of the modern era, between those who defend Warren's concept of a living Constitution, and those who view Warren's "evolving" constitutional standards as a license for judicial overreaching and would instead interpret the Constitution according to the original intent of the Framers.
Nor is the import of Trop confined to the theoretical. On January 7, 2008, the Supreme Court will hear argument in Baze v. Rees, which poses the issue of whether the lethal injection protocols used by three dozen states to carry out the death penalty violate the Eighth Amendment because they involve a substantial risk of inflicting gratuitous pain.
In deciding this question, a central issue dividing the justices is sure to be whether the Court should continue to use the Trop standard for interpreting the Eighth Amendment and, if the standard is used, what sources and methods the Court should use to determine the contours of our "evolving" standards of decency....
Read entire article at FindLaw.com
The turning of a New Year goes hand in hand with a new set of anniversaries to be recalled and reflected upon. Supreme Court history will yield a number of these, including, in 2008, the 50th Anniversary of Trop v. Dulles and Cooper v. Aaron.
Both cases were very much products of the great issues of their day. And both have transcended their particular contexts (though these contexts were and are significant in themselves) to importantly shape the modern history of the Court.
Trop v. Dulles: Can a Military Deserter Lose His Citizenship? Chief Justice Earl Warren's Evolving Interpretation of the Eighth Amendment
At issue in Trop v. Dulles was whether Congress had the power to take away the citizenship of a person convicted for desertion during wartime. By a 5-4 vote, the Court ruled that Congress had no such power.
Writing for himself and three others, Chief Justice Earl Warren ruled that denaturalization - "the total destruction of the individual's status in organized society" - was a Cruel and Unusual Punishment prohibited by the Eighth Amendment. According to Warren, the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" - and those standards of decency forbade Congress from stripping someone involuntarily of their citizenship.
Interestingly, Justice William Brennan deprived Warren of a majority for his position. Brennan concurred separately on the narrower ground that taking away citizenship for desertion during wartime was not a rational exercise of Congress's war powers - and, accordingly, was beyond Congress's authority - and thus had no reason to reach the Eighth Amendment issue raised.
But even if Warren's rationale did not command a majority, his approach to defining the Eighth Amendment - the idea the its meaning would evolve over time, and could be determined according to contemporary morality -- became emblematic of an entire way of thinking about the Constitution. Indeed, no decision more perfectly captures the idea of a "living Constitution" - the idea of a charter that each generation must interpret in light of its own felt necessities - than Trop.
In this sense, Trop was a harbinger of the Warren Court's dramatic expansion of civil rights and civil liberties, for it took a fresh, contemporary look at the constitutional promises of due process and equal protection. And by the same token, Trop is appropriately viewed as a main source for the great liberal/conservative juridical debate of the modern era, between those who defend Warren's concept of a living Constitution, and those who view Warren's "evolving" constitutional standards as a license for judicial overreaching and would instead interpret the Constitution according to the original intent of the Framers.
Nor is the import of Trop confined to the theoretical. On January 7, 2008, the Supreme Court will hear argument in Baze v. Rees, which poses the issue of whether the lethal injection protocols used by three dozen states to carry out the death penalty violate the Eighth Amendment because they involve a substantial risk of inflicting gratuitous pain.
In deciding this question, a central issue dividing the justices is sure to be whether the Court should continue to use the Trop standard for interpreting the Eighth Amendment and, if the standard is used, what sources and methods the Court should use to determine the contours of our "evolving" standards of decency....