5.14 Checks and Balances at Trial

(For best understanding read the companion kanBARoo court 68th Installment first: No to Victim-Impact Statements.)

(Fourteenth in series: The interpretation of statutes and the denial of judges' powers.)

The system of checks and balances at the core of the American constitutional system penetrates the government structure and, increasingly, legal categories are conceived in its terms. Does the system expand even to legal domains whose constitutional logic demands other principles? Applying balancing concepts to rights where rights are absurd — asserting the so-called rights of victims of crime — may be an example.

The oxymoronic victims'-rights movement asserts the rights of the victims of crime against criminal defendants, although the U.S. Constitution provides no victims' rights and the logic of giving criminal defendants rights' protection, when defendants must battle an opponent as powerful as the state, doesn't logically generalize to supplying victims — who are not even the defendants' legal adversaries — parallel rights. Yet, the 50 states and federal government, under intense political pressure, have granted victims the right to stage diatribes against criminal defendants in noncapital cases, in 38 states in capital cases, for which the U.S. Supreme Court holds provisions for victim-impact statements are valid, overturning two of its decisions taken within five years.

The opinions of the justices who legitimatize victim-impact statements are largely based on balancing the rights of defendants to introduce evidence in mitigation. The dissenting justices' opinions in the cases overturned are striking in demonstrating how far astray the checking-and-balancing framework can lead when misapplied.

Consider Justice White's dissent in Booth v. Maryland:

If anything, I would think that victim impact statements are particularly appropriate evidence in capital sentencing hearings: the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in [citation] by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.

(Booth v. Maryland (1987) 482 U.S. 496, 517 [dis. opn. White, J.])

Or consider Justice Scalia's dissent in the same case:

To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted.

(Booth v. Maryland, supra at p. 520 [dis. opn. Scalia, J.].)

Justices Scalia, White, and O'Connor, who joined the opinions, make a balancing argument in which victim-impact statements balance mitigating evidence, despite the wholly different constitutional logic applying to victim and criminal defendant.

5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.