Month: January 2019

Court WatchingEssays

Court Watching: Madison v. Alabama

“Court Watching” will be a regular series on Reflections. The purpose of these essays is to inform the general public on the important constitutional questions being considered by the U.S. Supreme Court in its current term. Often, journalistic reporting on the Court focuses heavily, or even exclusively on the practical outcomes of the cases before the Court. We’re told whether a decision is a “pro-Trump” or “anti-Trump” decision, and what immediate impact the decision may have, but the legal and constitutional questions the court has wrestled with are understated, to say the least. Often, stories about a decision of the Court fail to even mention the name of the case! This continuing series of essays will attempt to explain, in layman’s terms, the constitutional issues the Supreme Court is dealing with: What part of the Constitution is being debated? What have previous court cases said about the issue? What are the arguments on both sides? Hopefully, this will lead to a greater understanding of current constitutional debates, and respect for differing views of governmental powers and constitutional rights.

by John Grove

Madison v. Alabama

Vernon Madison was, after several trials, convicted of shooting and killing a police officer in 1985. The judge in the final trial overruled a jury’s recommendation and imposed the death penalty on Madison in 1994. While on death row, Madison has suffered several strokes and has significantly diminished mental capacity.

The Constitutional Question:

The Constitution’s Eighth Amendment forbids the imposition of “cruel and unusual punishments.” Determining what constitutes “cruel and unusual,” however, has been a difficult task. As far back as 1958, in Trop v. Dulles, the Supreme Court has held that the meaning of “cruel and unusual” should be derived from the “evolving standards of decency which mark the progress of an evolving society,” rather than from the meaning those words held at the time of the Amendment’s ratification. Creating firm standards to match that abstract (and, critics might argue, amorphous) language, however, has often been a difficult task for the Court.

For this case, the standard at question comes from two important cases: Ford v. Wainwright (1986) and Panetti v. Quarterman (2007). In these cases, the Court determined that it was a violation of the Eighth Amendment to execute someone who was “insane” or had delusions at the time of execution. Both sides in Madison accept the standard which the latter of these two cases set forward: If a person does not have a “rational understanding of the State’s reason for his execution,” that person cannot be executed. They differ, however, on whether someone who has dementia and cannot remember his crime, yet can understand what the state claims he did and can understand why he is being executed has such a “rational understanding.”

It is important to note that this case is not about the execution of a person who had dementia at the time of the crime. Mr. Madison did not. Rather, it is about whether it is cruel and unusual to execute someone who, because of dementia, cannot remember the crime for which he is being executed.

The Arguments

Interestingly, both sides at oral argument agreed that vascular dementia could, indeed, trigger the protections outlined in Ford and Panetti, even though those two cases limited themselves to cases of insanity and delusions. The two sides differed, however, on whether Madison’s dementia actually prevented a rational understanding of his crime and his punishment. Madison’s attorneys argued that his condition meets the standard established by Panetti. Namely, that Madison’s dementia makes it difficult for him to orient himself and fully understand the circumstances he is in. Like an Alzheimer’s patient, he may understand something one day, and not understand it the next. They pointed to many everyday aspects of his prison life, such as his inability to remember that he has a toilet in his cell, as evidence that he is simply incapable of understanding his circumstances.

The state of Alabama, on the other hand, argued that Madison’s condition does not prevent him from understanding the rationale for his punishment. They cited medical testimony that Madison understood that he was convicted of shooting a police officer, and that his execution was because of that action. Further, the state argued that at least one element of Madison’s case – the lack of memory of the crime – is an unworkable standard, as there is no way for courts to know for certain whether a defendant has actually forgotten a crime.

What this case seems to boil down to is whether it is cruel and unusual to execute someone who can understand the purpose of his sentence and its consequences, but who cannot, perhaps, hold on to that information and fully grasp the situation he is in. Given the disagreements over Madison’s actual mental abilities, it is also possible that the Court may send the case back down to lower courts to determine whether Madison actually is incompetent to be executed, given the agreement that the Panetti standard goes beyond insanity and delusions, and does indeed apply to people with dementia.

 

Oral arguments for this case were heard in October, so a decision is expected soon. As will be the case with all of our “Court Watching” essays, when the Court hands down its decision, we will write an update and explain the Court’s reasoning. Stay tuned!

Essays

Lincoln and the Rule of Law Pt. I

by Charles Hubbard

We often hear the concept of the rule of law thrown around in debates over several contemporary issues. Those engaged in this discourse, however, may not fully appreciate or understand the meaning of the concept. The principle of the rule of law is a fundamental part of the Anglo-American conception of constitutional government, or more simply, limited government. Both the government and the governed are subject to the law and no government official, no single private citizen, no single group of people can claim privilege or exceptions to the law. The rules are set forth in advance and are widely known to leaders and the public in general. It is the responsibility of those in power to apply the rules impartially to all citizens regardless of status, position, or political persuasions. To do otherwise, is to risk the complete breakdown of a civil society that is grounded on constitutional government.

Adherence to the rule of law and more particularly to its application poses unique challenges for every era. The law both empowers and restrains leaders as they negotiate the tensions between the immediate crises of the day, and the need to protect the basic institutions of government. History provides numerous examples of leaders confronting this dilemma, but probably none is better than President Lincoln’s conflict over emancipating the slaves. As president, Lincoln possessed the power to emancipate the slaves, but he recognized that the constitution granted him no legal authority to do so under normal circumstances.

Lincoln’s belief in the rule of law is legendary. It was so important to the 28-year-old Lincoln that he subtly equated the concept to spirituality. In his address to the Young Men’s Lyceum of Springfield in 1837, Lincoln condemned the actions of a mob that burned a black man accused of murder. The threat to society was the failure to follow the law. Speaking directly to the threat, Lincoln said, “I know the American People are much attached to their Government;–I know they would suffer much for its sake;–I know they would endure evils long and patiently, before they would ever think of exchanging it for another. Yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come…”

Lincoln went on to speak passionately about the importance of law and order and its equal application at all levels of society and addressed the need to explain its necessity to all the people when he said, “The question recurs, “how shall we fortify against it?” The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;–let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap–let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;–let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor.” For Lincoln, the rule of law was not only essential to civil society and constitutional government, but was a part of the very essence of the American spirit.

Eventually, Lincoln’s dedication to the rule of law would inform his approach to the issue of emancipation. By issuing the Emancipation Proclamation as a “war measure” utilizing his executive authority, he understood that the Emancipation Proclamation did not permanently resolve the issue. It only freed slaves in rebelling states. He took only those steps which he believed could be justified by his constitutional authority. It remained for Congress and the American people to change the Constitution and the law in 1865 with the 13th amendment to prohibit slavery throughout the United States.

Over the years, since Lincoln pronounced his views on the law and his reverence for the structure and order it produced, our governing institutions have evolved into a system he could never have envisioned; the issues faced could never have been guessed. However, the concept to which he was so dedicated remains disarmingly simple.  The application of the principles of the rule of law remains as vital and essential to constitutional government and the maintenance of a civil society as it was in Lincoln’s nineteenth century. It continues to serve as a limitation of what goals may be immediately achieved, but Lincoln correctly observed that the law of and by the people, applied impartially, was the ultimate security to our political institutions and safeguard of the rights of all.

Lincoln Institute

Reflections: The Beginning

If there is one thing on which nearly all Americans agree, it is that we cannot agree. The state of civil discourse in America is bemoaned by figures on both the right and left. Studies indicate that partisan polarization is more intense than it has been for decades. Increasingly, American citizens feel like they do not understand one another, and cannot talk to one another. This has led some to observe that American public discourse has devolved into a form of tribalism: Rather than carefully considering important public issues, we tend to take sides instinctively by agreeing with those we believe are “like me.”

Many of us who teach and research in the areas of politics, law and political history care deeply about the skills and thought processes that are being lost. We spend our lives carefully analyzing public policy, developing a clear understanding of law, and trying to make sense of the rich and complicated history of American ideas, politics and constitutionalism. It is discouraging, therefore, to see political dialogue devolve into a raw battle of wills, devoid of any intellectual engagement with vital questions.

We believe this environment calls for a greater emphasis on public engagement by those of us who study these issues professionally. Rather than exclusively discussing narrow, academic questions, we think it is also important to apply our expertise in a manner accessible to and useful for the average citizen.  It is in this spirit that we launch Reflections. We take our name from a famous passage from Federalist #1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The sentiment expressed by Alexander Hamilton is the same sentiment which animates Reflections: The belief that public issues of the greatest importance can be considered in a reasonable and judicious manner. Indeed, the example of the debate over the Constitution’s ratification could serve us well in twenty-first century America. It was a time of great polarization and acrimony. But rather than devolving into a thoughtless battle of wills, the controversy produced some of the ablest political writing America has ever produced. Not only The Federalist, written to support the constitution, but also able Anti-Federalists such as “Brutus” and “Centinel” offer proof that thoughtful and reasoned debate need not die in a rancorous age.

As we launch this endeavor on the Birthday of Martin Luther King, Jr., we are further reminded that our country’s politics and laws have passed through worse times than the present, and that a clearer perception of rights, responsibilities, and the demands of justice can indeed improve our society.

The reflections published here will not solve the national problem of decaying public discourse. They are unlikely to have any impact at all on the outcome of the great political and social questions of our day. Nevertheless, we hope they will serve to inform and enlighten those fair-minded citizens who do not wish to give up on the idea of civil and thoughtful discourse. We hope that Reflections will serve to shed light on difficult contemporary issues, inform our readers about the rich and complex history of American ideas, politics, and constitutionalism, and serve as an example of civil, informed, and levelheaded discourse about interesting and complicated issues.

Our contributors are not united by any ideological or partisan commitments. We also have diverse academic backgrounds. We are simply united in the hope for a more elevated public discourse and a more knowledgeable public. So we will do what is in our power to promote these goals in our corner of the world. It is this unity of purpose and diversity of viewpoints that we hope will make Reflections a breath of fresh air for those who read it in our increasingly polluted political environment.