Inferring and Explaining

120 e 1 . The US Constitution says . . . e 2 . This text has many authors. e 3 . We know or can infer many things about the concrete attitudes and beliefs of these authors. e 4 . We know many things about the abstract meanings of many important constitutional principles that are articulated in the text. e 5 . There is often relevant constitutional precedent for the case at hand. InferrIng and exPlaInIng Te Supreme Court does not have the luxury of sitting around and asking themselves what does the Constitutionmean?Teir business is mainly deciding whether a particular happening— a decision in a lower court, an action on the part of a legal ofcial, or generally what they call a state action —ofends a specifc part of the Con- stitution. So in addition to all the textual data, there is also data about the occurrence that is claimed to be unconstitutional. e 6 . It has been alleged that a particular state action violates the guarantees to citizens within the Constitution. So what’s the best explanation of all this? Tose of you who know anything about our Supreme Court no doubt are well aware of this, but it should be acknowledged up front.Te best interpretationwill usually be very controversial for everyday citizens, for scholars and pundits, and also for the justices themselves. Further- more, there seems to be a pretty clear correla- tion between howmany of the justices interpret the Constitution and who those justices are as people—their politics and their legal philoso- phy. Some become very cynical about all this and see constitutional law as simply one more political game. I prefer the view that constitu- tional issues are incredibly difcult and that it is inevitable not only that they be intrinsically controversial but that equally smart and dedi- cated professionals, as virtually every justice is and has been, can hardly avoid bringing their backgrounds and beliefs into the process. With all that then, we can simplify the explanatory candidates to two: t c . The state action does not violate the Constitution—it is constitutional . t uc . The state action does violate the Constitution—it is unconstitutional . Some Key Constitutional Text Te frst sort of evidence that Blackmun needs in his constitutional case against the death pen- alty is the constitutional language itself. e 1 . From the Fifth and Fourteenth Amend- ments: “[No person shall be] deprived of life , liberty, or property, without due process of law .” e 2 . From the Eighth Amendment: “Cruel and unusual punishment [shall not be] inficted.” e 3 . From the Fourteenth Amendment: “[No State shall] deny to any person within its jurisdiction the equal protection of the laws .” Tis language, as it stands, is problematic to Justice Blackmun’s case against the death pen- alty for two reasons. Te frst, of course, is that the language of due process, equal protection, and cruel and unusual punishment is abstract, vague, and inherently controversial. How those