Post Calls for Kennedy Rehearing:
On Saturday, the Washington Post called for the Supreme Court to rehear its decision in Kennedy v.Louisiana holding unconstitutional the death penalty for child rape.
There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.The Post notes that the various parties failed to identify the recently enacted UCMJ provision, so it does not place all the blame on the Court. The SG's office and the various parties were asleep at the switch -- as was the mainstream media, which only picked up the story after a blogger noted the mistake.
The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity. As the Post's editors explain, "The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations." Even if the Court reaches the same result, it should not mischaracterize federal law.
Related Posts (on one page):
- Should the Supreme Court Take Advantage of the Web?
- Post Calls for Kennedy Rehearing:
- Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
I'm guessing it won't be granted, but perhaps the dissenters will issue a dissent from the denial scoring some points at the majority's behest. It'll be a bit hypocritical, of course, given that none of the dissenting Justices discovered the provision either.
I guess that means, if (in protest?) 19 more states pass a statute allowing the death penalty for child rape, then the Court's decision would be invalidated by the new consensus. What an easy way to amend the Constitution.
The error -- though an embarassing one -- can be corrected in the Court's final opinion (slip opinions are not the final word. As the Court's own website notes: "In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.").
I'd hate to be the law clerk who was resposnsible for making sure that count of jurisdictions was accurate.
Scratch that. I'd love to be that clerk. Better a SCOTUS clerk who screwed up once than never a SCOTUS clerk.
Of course, it's unlikely that any child rapist is under the impression that his activities are legal. Still, if we are arguing that the death penalty has some marginal deterrent value over life in prison, children are conversely exposed to the heightened risk of rape by society's failure to make the severity of the penalty widely known.
They say that "ignorance of the law is no excuse" — but when the entire Supreme Court, its clerks, the Solicitor General, the Attorneys General of several states, and dozens of other interested parties are likewise ignorant, doesn't that start to call the law into question?
I would also hate to think that civilian punishments and legal rights can be determined by the military code of justice. It can be pretty authoritarian. Maybe if we lived in Sparta a military code imposed on the nation would make sense. But the last place I want to go for precedent is the military code of justice. In many ways that the military does act that way is a good reason that civilian law shouldn't unless, of course, our goal is to militarize civil society.
Remember, the statue in question was part of the Uniform Code of Military Justice. My guess is none of the people who missed it (petitioners, amici, the Solicitor General's office, the Justices and their clerks) are eligible for prosecution under the UCMJ. Those who are in a position where they should know (members of the military, particularly military lawyers) weren't consulted.
Generally, I would agree with you. However, I think this is a different situation because it's a federal law. If they'd missed a single state's statute that wouldn't change the analysis much. But a federal law arguably represents the will of the entire United States writ large. Thus it has a huge bearing on whether a consensus exists--much more than a state statute.
I agree with some of the other commenters that this will in no way alter the outcome of this case--heck I think if 40 states and the federal government all had death penalty for child rape the court would still have come out the same way. But that's a separate issue.
Now certainly there's a difference between our military law and our civilian law, but whether and how that distinction affects "cruel and unusual" consensus cases deserves its day in court.
The fact another jurisdiction (even the federal government)authorizes the death penalty for child rape is not likely to change the Court's outcome-based decision making. However, if the Court is going to strike down a federal law, it would behoove the Court to hear the government's point of view first. (Paging the Solicitor)
If the death penalty is "usual" enough to be imposed on those serving our country in time of war, why isn't it "usual" enough to impose on a common child rapist in Louisiana?
Not really. It is federal law, but it's a federal law that ONLY applies to military, and military law is generally stricter/less forgiving/gives harsher penalties than civilian law. So, the comment about "the will of the entire United States" seems so much hyperbole. IIRC, adultery is also a crime under the USCMJ. Does that mean criminalizing abortion "represents the will of the entire United States?" Of course not. It represents the fact that soldiers are held to a different standard of conduct than civilians, and the USCMJ reflects that.
I don't see why not, given the "evolving standards of decency" constitutional standard which claims to tie constitutionality to the legislative decisions- or trends- adopted by politicians. Indeed since Congress speaks for the entirety of the country, this law is arguably more significant than any individual state law considered in the opinion, as it received the attention of representatives from every state.
Of course, this standard was devised in the 1970s when the liberal justices thought then-current social trends would continue indefinitely, the death penalty would be repealed in more and more states, setting the stage for our wise guardians to finally pull the plug on it ("completing" our democratic process, they might have conceived it) sometime in the 1980s. Turns out they were too clever by half. Oops!
***
Are there any federal laws dealing with this subject wrt civilians? If so, what are the prescribed penalties?
Assuming no commerce clause consideration, where would the federal government (outside the military) have any power in this area to begin with?
yes there are civilian federal rape laws. no the penalty for the civilian crime of rape in federal jurisdiction does not cary possible death. the jurisdiction is direct federal jurisdiction when on federal land (ex. rape in a federal building, rape in a national park, in federal waters etc..)
chil·dren (chldrn)
1. A person between birth and puberty.
The SG had the opportunity, but but didn't do thorough enough research before declining to get involved. The purpose of rehearing generally is not to allow counsel to cure counsel's own neglect. It certainly isn't to allow a counsel for an amicus (even the Government) to cure its own neglect.
Also remember that the four most conservative members might apply a conservative rehearing standard, so it isn't even guaranteed that they will support rehearing.
***George W
Thanks, and I should have remembered that.
Interestingly, I once served on a federal military reservation which was divided wrt to jurisdiction. Part of it exclusively federal, part of it exclusively state, and the remainder concurrent. (This is with regard to civilians charged with a crime).
Also note here the following intriguing passage in the Kennedy case:
Isn't the entire body of military criminal law, in a sense, about "offenses against the State," i.e., about the distinct sovereign interest in good order, right conduct, and discipline in the armed forces? That doesn't mean that the UMCJ could subject any offense to the death penalty, only that the standard might be different in the military and civilian contexts.
Too late.
Well that IS interesting- what military post? And what was the reason for divvying it up like that? I assume you mean that if a civilian committed a crime in one part of the reservation the feds would prosecute, if he did so in another the state authorities would prosecute, even though the crime took place on federal land . . .
*** Terrence
Coast Guard Island in Alameda. It was divvied up back in the early 20th Century and it then was known as Government Island, since the feds did the dredge work that created it.
The exclusive state and concurrent juridictional areas are the most easily accessible. The exclusive federal jurisdiction is the most remote. There was a memorandum of understanding with the local police that they would respond to any situations, although Coast Guard Security personnel were "deputized" under a section of the CA penal code (836?).
So far as I know that MOU, or a variant, is still in effect.
(I've been retired for 21 years)
While this sounds entirely logical, when the Court rules that a statute is unconstitutional based entirely upon a supposed "emerging national consensus", the existence of Congress' judgment that the death penalty was appropriate in the case of a soldier who raped a child certainly seems relevant to the existence of that same "emerging national concensus." It just shows the inherent logical weakness of the Court relying upon such a vague notion as "consensus" to determine the scope of constitutional rights.
They get to say, "Remember that fact we pretended was a foundation of our decision? Well, it's not a fact, after all. But we don't care. Sometimes we lie. Sometimes we're ignorant. But, if caught either way,...we don't care."
This will surely polish the court's image.
Indeed. Any court that intervenes to prevent the premeditated murder of its nation's citizens is corrupt.
We could argue with your second sentence all day, but I think the apparent ignorance of the penalty cuts both ways. Some opponents of the death penalty for child rape argue that it gives child rapists an incentive to kill their victims. I think this attributes a lot of rational calculation to some (presumably) pretty irrational actors, but if they don't even know, you can't make that argument. I'd be shocked if, until this case, any more than 10% of Louisianans knew what the penalty for child rape was.
Here, however, the neglect is also on the Court. The best motions for reconsideration should bring to a court's attention relevant law or facts that the court overlooked or failed to consider in its original decision. And if the current failure to address a federal law on point had come from a lower court, I could see a motion for reconsideration getting some traction.
But we are in agreement on the likelihood of the Supreme Court reconsidering its decision. While the Supreme Court made a mistake and is now being chastised for it in the press, I doubt the Court will reconsider its decision. The majority opinion proclaims a national consensus against the death penalty for child rapists. This assertion, coming from the unelected branch of our government, is a poor fig leaf for the outcome the majority wanted to reach. I doubt the same majority has much interest in granting reconsideration so that the parties can debate the size of the fig leaf.
Finally, Public Defender -- your criticisms of the SG's office may be accurate. I do not know why the SG did not raise this federal law with the Court (which is one of the reasons I would like to see if the SG's office takes any action now). However, the government's absence in a decision where the Court may have backed into overturning a federal statute does not exactly enhance the credibility of the decision.
Given that the Constitution is "evolving", how can any of us safely predict which laws are constitutional, or will be so tomorrow?
Rapes by GIs is often a very emotional issue with host countries when SOFA agreements are implemented. The US wants to maintain control over the legal regime that applies to its soldiers to maintain good order and discipline by investigating and punishing those who commit crimes as well as avoiding subjecting its troops to various legal systems in other countries. However if rape is perceived to be treated leniently by the US, host countries will come under considerable domestic pressure to alter these SOFAs and their populaces will come to see the US military as an occupying army running amok.
Given this the draconian UCMJ provisions involving rape and child rape make a lot of sense. They serve to deter such conduct where it can be deterred. And they serve to punish such conduct so severely that the host population will have little ground to complain that GIs are getting away with rape.
As an ex-ante situation I would much rather be a US soldier knowing that a rape conviction may bring about the death penalty but that the trial will be handled by a US court martial rather than a situation in which the SOFA said the whole issue will be handled by the host county's judicial system. (Consider facing the Japanese judicial system for example as an alternative the to UCMJ.)
Given the above I think there is a reasonable argument that rape and child rape by service members (at least when deployed overseas) would count as a crime against the state.
Kevin
..Bunkum and twaddle, combined. The death penalty has the maximum deterent effect ; the offender will not reoffend. How can any punishment meet that 100% effectiveness except the death penalty. I take it you support the death penalty because it has that great deterent effect.
..We don't punish people for raping children if they are incapable of knowing it is wrong . You seem to conflate the knowledge of the accused that he is breaking the law with his knowledge of the penalty. Almost nobody accused knows what the penalty for conviction will be. Not the suspect, nor the lawyers, nor the judge. So, to you, that means he can't be justly sentenced, if convicted. Wrong.
Part of the sovereignty of Indian reservations is that state law is inapplicable to enrolled members but applicable to non-members who commit crime on the reservation. Federal courts have jurisdiction for felonies under both the Assimilated Crimes Act (18 U.S.C. 13) (which federalizes state law) but only to the extent it does not conflict with substantive federal law for the same offense.
Finally, tribal courts have jurisdication over enrolled members but not over non-Indians. Thus, two people could jointly commit the same crime on an Indian reservation and end up in two separate courts.
You wrote:If you are talking about preventing a lawful execution, I would disagree with your argument that putting the condemned to death is "murder"--since murder is commonly defined as an unlawful killing. An execution is not unlawful since it is sanctioned by the state--even if otherwise killing the condemned as he walked to the death chamber would be.
I would agree with you, though, that an execition is a homicide--since one human is deliberately killing another human. But not all homicides are murders, even though we tend to think of the two terms as being synonymous.
True. I wasn't using the term "murder" in its legal sense. The alternative term "premeditated homicide" isn't commonly used.
Ha ha. Credibility to whom? Post editors and other such psychological curiosities? Taking the long view -- Dred Scott, Korematsu, Plessy, Roe, Bush et al. -- it's hard to see how a historically well-informed Joe Citizen can have much faith in the institution. So far as I can tell, the Court only gets things right by accident or after decades of being hit with the cluestick.
> What an easy way to amend the Constitution.
Well, judicial fiat is even easier.
But yeah, you put your finger right on it.
UWV
> Maybe if we lived in Sparta a military code imposed on the nation would make sense.
Its not about imposing anything. The Supremes are not about to make the death penalty mandatory in any case. The issue is if a state can choose to do that.
TGGP
> If the law passed by Congress was not a constitutional amendment, it should not affect the constitutionality of other laws.
Agreed, but then the bone you have to pick is with the Supremes for making “consensus” part of the definition of cruel and unusual. And mind you, without any clear idea how to establish consensus.
Whit
> It is federal law, but it's a federal law that ONLY applies to military
Well, generally, federal law doesn’t address crimes like rape. The military is one of the few areas where there was a need for a general criminal code. Federal criminal law usual concerns itself with economic matters, and the protection of civil and criminal rights.
PLR
> Any court that intervenes to prevent the premeditated murder of its nation's citizens is corrupt.
Sarcasm noted.
Murder is unjustified killing. Morally and legally, an execution is fully justified in the case of the scumbag in Kennedy v. LA. He raped his 8 year old daughter so hard that it ruptured the wall between her vagina and anus.
And yes, it is corrupt to make a ruling based on bad facts and bad reasoning, because you like the result.
Simply unpack your adjectives.
You can do it with adjectives.
Tell them 'bout it with adjectives.
You can shout it with adjectives.
--Schoolhouse Rock, "Unpack Your Adjectives"
Their lack of intellect is something they can't help. Their lack of shame is something they have carefully cultivated through long practice.
Okay, let's do something that Kennedy wouldn't do in his majority opinion—engage in a little legal thinking.
Who is worse? (A) The defendent in Kennedy v. LA or (B) Benedict Arnold?
Who is worse? (A) The defendant in Kennedy v. LA, or (B) a man who conspires to rob a bank, and in the process his co-conspirator shoots and kills a security guard?
Now, which of these persons can be executed after this atrocious ruling? The answer is B and B.
But here let Beldar explain it to you:
> I condemn this Supreme Court ruling, as I have all of the Supreme Court's recent Eighth Amendment decisions that purport to be based on "evolving standards of decency." That entire line of cases is a transparent lie, and an example of the most pernicious sophistry that lawyers can create: How else but through double-talk and evil magic could the least representative branch of either the federal or state governments strip the most representative branches of their intrinsic power to weigh, and then determine, what community standards are to be, and whether and how they ought to "evolve"?
http:// beldar.blogs.com/beldarblog/ 2008/07/the-important-p.html
(cut and paste link, removing spaces)
I mean, really, if consensus is all the rage, then how come the supremes have not simply called for a national referendum to get a sense of the community? it would bring some actual intellectual rigor to their analysis.
1) 8th amendment forbids something iff it's cruel and unusual punishment.
2) Something is punishment iff it is the method in which a person is harmed, and does not include the reason for which they are harmed. I.e., punishment = the mode of harm, not the reason the harm is inflicted.
3) by 1) and 2) the 8th amendment never forbids the state from harming a person in a particular way for a particular crime per se; it ONLY forbids specific modes of punishment irregardless of predicate offense. E.g., it could never be cruel and unusual punishment to punish petty thievery with life in prison, assuming life in prison is not itself forbidden.
4) Death is not forbidden in and of itself.
5) Therefore by 1-4, child rape can be punished with death.
Now, I realize the court has concocted some notion of "proportionality" into the 8th amenmdent, which is measured by "national consensus." But this is an absolutely horrendous reading of the basic language of the 8th amendment, no? Isn't it just ignoring basic semantics? Where am I wrong?
Well, to play devil's advocate (b/c i actually agree with you), what they would say is that the term "unusual" does demand proportionality, equal protection and all kinds of other things.
I don't buy it, but there it is.
Well, that's a plausible reading I suppose, since "unusual" is arguably ambiguous in the context. But read as a whole, I do think our reading is more plausible since "cruel and usual" both modify "punishment" and "cruel" is clearly only a question of mode and and not reason for imposition. So, you can't chop fingers off, period. And you can't force somebody to dance in a pink skirt in the street either, even though it's not necessarily "cruel" but obviously unusual.
Actually, you might read the phrase "cruel and unusual" as requiring both--both that it be cruel and unusual. So pink tutu's are okay. and indeed, there are judges who do give out sentences in that same zone of strangeness.
As for unusual, here is a paper on what unusual was supposed to mean. i haven't read it, but it might be interesting to you. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344
I would say no. Not wise, of course, but not unconstitutional in any sense i can discern.
I really think it its original understanding, the 8th Amendment was not meant to be very much protection. The 8th was about preventing things like drawing, hanging and quartering for treason. Remember, they would hang a man for stealing a horse; so life in prison for a speeding ticket doesn't seem very "unusual" or "cruel" by that understanding.
So if the people decide to put in draconian penalties for speeding (see, e.g., right now the fines we have for speeding here in Virginia), that's their right, so long as they observe equal protection and all that. And I am very comfortable with that, because the people can be trusted not to go too far off the reservation on this sort of thing. And ideally the constitution should be seen as risk avoidance device. When contemplating whether to amend it or not, you might want to control for a very high risk of moderately bad behavior, or on the other end of the spectrum, a very high risk of very dangerous behavior. Your confidence in your policy judgments figures into it too. It am dead certain that the right to bear arms is one of the key bulwarks for liberty, so if the Supremes came out the other way on Heller, I would have supported a constitutional amendment overturning the decision. On the other hand, I don’t favor the current proposals for a gay marriage amendment. I would instead favor language that merely left the issue up to the legislature. I don’t trust the courts on this, but I do trust the people. Implicitly the founders were engaged in a similar analysis, although they didn’t favor very much law and economics language on the subject.
Anyway, so once you understand these amendments as about risk aversion, then you feel much better about allowing the government to decide if a person should go to jail for life for a speeding ticket, because you can retort "like that would happen anyway!"
Considering that judges have the power to impose all kinds of odd punishments (the woman who held a sign outside a Wal-mart declaring herself a shoplifter, for instance), and that judges have had this power, best I can tell, since before the Revolutionary War, I always believed this clause to be a restriction on that prerogative.
Thus, a penalty proscribed by duly enacted Legislative branch law is, by definition, not "unusual" - indeed, it is the USUAL punishment for such a crime.
Death penalty for shoplifting? If that gets past the legislature, the people will simply stop convicting shoplifters (yay, jury trial!) - bring it on.
When the legislature can't make any law without the approval of the Judicial, and the Judicial can create new "rights" from whole cloth, it seems apparent that the Judicial branch, and the SCOTUS in particular, is simply ruling the country as they see fit, subject to no one.
Of course, in theory, the Congress could impeach them, but that simply isn't done, you know.
Sigh.
Not interested. My posts in this topic deal with ethics, and not situational ethics either. All the legal minds here assembled will concur that ethics and the law overlap as a concidence and not as a rule.
Well, in typical legal language, "and" means it has to be both. if you want it to be disjunctive, you need it to be "or" or "and/or."
Okay, you want ethics? Is it ethical to swear an oath to uphold the constitution when you really mean uphold your own judicial fiat?
So in fact the ethical outcome here is the same as the proper legal outcome: you obey the constitution, and not your whims. Whether the constitution is ethical or not is another matter. To that question, I would say this. The value a society places on a right is determined by the remedy for its violation. Anything less than death for this animal, then, is a cheapening of the right of a child not to be raped. Indeed, Kennedy repeatedly talks about our need to respect dignity, by which he means the dignity of the defendant. The dignity of the girl who was raped, or the girls who will now be raped because of this decision, doesn’t even cross his mind.
But please, tell us, if any right is valuable enough for you to justify killing in order to uphold it? Or are you just plain against the death penalty in all cases? And if you support it in some cases, then where is the dividing line for you?
Or let me turn the question around. Is there anything you would die for? If your daughter was being raped, for instance, and the only way to stop it would ensure your own death, would you stop it anyway? Would you die for freedom, etc.? And if so, haven’t you implicitly admitted that there are things more valuable than life?
... and you know this how?
Well, okay, i am using rhetorical flourish. how about this... his opinion makes no effort to take that into account. its all pretending their is a consensus nevermind the way he created the facts on the ground, rather than merely reported it.
We're not dealing with "typical legal language" in the modern sense, we're dealing with a document more than 200 years old. And it is reasonably clear as a historical matter that the Eighth Amendment means "cruel punishment shall not be inflicted, and unusual punishment also shall not be inflicted."
Well let's look at the oath:
Nope, I don't see anything there that says exactly how to vote in Eighth Amendment cases, or any other cases. In fact, a federal judge can be a completely disingenuous nutball like Janice Rogers Brown and fulfill the oath.
> And it is reasonably clear as a historical matter that the Eighth Amendment means "cruel punishment shall not be inflicted, and unusual punishment also shall not be inflicted."
Really? So, forcing a man to walk around in a chicken suit for a day is banned by the constitution? Because that is unusual, but unless you are talking death valley not particularly cruel.
And, no, as a historical matter, “and” means both, not either one.
> Nope, I don't see anything there that says exactly how to vote in Eighth Amendment cases, or any other cases.
You’re being disingenuous. I didn’t say that you had to go for a specific outcome. I said you had to be upholding the constitution and not your whims. If you are trying to read the constitution as it is written and you just screw up, that is one thing. But to ignore the constitution is another.
The entire concept of evolving standards is an empty lie. The idea that the constitution can be changed because the court divines the zeitgeist of the time a certain way doesn’t even pass the laugh test. No serious constitutionalist could adhere to that. And Alito demonstrated that even if you subscribed to that silly lie, it doesn’t matter, because the court had no basis to judge the zeitgeist of the time.
I mean seriously, if they are going to base it on that, then why don’t they just order for there to be a referendum on the next ballot: do you believe that the 8th amendment allows for the execution of child rapists? If zeitgeist is the standard, that is the only way to find it. But of course Kennedy doesn’t want to do that, because that might not come out his way—and that is what this is about: the desire for power. He contorts himself pretty lamely trying to say there is a consensus against that punishment, because states haven’t passed laws allowing for it, even though the supremes had pretty much said the laws would be unconstitutional. Nor does he have an answer to the questions I put to you above, just as you don’t. That is, why is this guy’s crime less than the examples above (Benedict Arnold, etc.).
What he did was not law. If you want to look at a facial attempt to actually interpret the constitution, I suggest you read Scalia’s opinion in Heller. Or Marbury v. Madison, McCullough v. Maryland, and so on. Those are opinions that actually try to interpret the constitution, or if you are cynical, merely pretend to do so.
As for Brown, I have read PFAW’s “indictment on her.” It was so unremarkable that after about 10 quotes, I stopped reading. Oh my Gosh, you mean she thinks that the second amendment is at least as fundamental as the made-up right to privacy! Per shame! Per shame! http://www.pfaw.org/pfaw/general/default.aspx?oid=12751 The fact you think someone so unremarkable is a nut just demonstrates what blinders you have.
It was somewhat random, but I think she's emblematic of Bush's judicial appointments generally. They're known for being ideologues, and their reputations as judges are rather mixed.
How strange that so many constitutional lawyers consider it a near logical imperative that "unusual" means "unusual at the time the punshment is inflicted" as opposed to "unusual at the end of the eighteenth century."
If only their liberal legal training hadn't blinded them to the wisdom of A.W.
Again, if the issue is the consensus of the age, why not a referendum? Or even a poll? Why do you keep dodging that simple question. If it’s the feelings of the people, then why not ASK THEM, for cryin’ out loud?!
The answer is, because the Supreme Court doesn’t want to hear the answer. Or more precisely, Kennedy doesn’t.
And yeah, pretending the constitution changes according to the mood of the people is the exact opposite of what a constitutional right means. I gave the example of drawing, hanging and quartering before, which used to be the punishment in England for treason. So I suppose under your theory if enough people support that, it suddenly isn’t cruel and unusual?
The point of a constitutional amendment is to take certain questions away from the feelings of the majority. This view of the constitution then is a pointless gesture. The smarter way to write it would be “Congress shall declare by referendum what punishments are forbidden in the Federal criminal process.” For if the issue is the feelings of the American people, then what better way to determine it than by a statute? Or perhaps you would prefer a referendum. But certainly the bogus tea-leaf reading that the Supremes engaged in is not the way to do it; not statistician would say that the court did a good job in counting heads on that issue. They would identify obvious biases all over the place.
And as far as the liberals who believe this is a logical approach, notice I used the term “serious constitutionalist.” That excludes anyone who merely pretends to believe in constitutionalism, which apparently includes you.