The Unending, Unendable Tensions


Last week history had a nice symmetry. The day Thurgood Marshall announced his resignation from the Supreme Court, the court announced two decisions, each reversing recent precedents, that framed the coming debate on confirmation of Clarence Thomas.

The court ruled 5-4 that a Michigan law imposing mandatory life sentences without parole for possession of 1.5 or more pounds of cocaine does not violate the Constitution's prohibition of "cruel and unusual" punishments. That amount of cocaine (sufficient for upward of 60,000 doses; a street value of $100,000) is not trivial.

But the sentence, measured against federal sentencing guidelines (10 years for that offense) or other states' practices, may strike many as disproportionate. And in 1983 the court invalidated a mandatory life sentence for the seventh conviction for a non-violent recidivist (he had passed a bad check worth $100) because, the court said, the ban on cruel and unusual punishments mandates some degree of proportionality -- punishment that "fits" the crime.

Last week the court said: The Framers of the Constitution chose not to emulate those state constitutions that in 1787 explicitly mandated a proportionality principle regarding punishment; the "cruel and unusual" language was adopted to prevent legislatures from resorting to particular modes of punishment that are both cruel and unusual; the history of American penology shows that harsh mandatory sentences are not unusual; traditions of federalism allow for states to treat similar cases differently, given different local needs and concerns. And if judges undertake to monitor the proportionality of all sentencing decisions of 50 state legislatures, the judges' discretion will be unguided by standards derived either from history or the Constitution's text.

Justice Marshall dissented.

In the second case decided that day, the court reversed 1987 and 1989 decisions, ruling that at the sentencing stage of a capital case jurors can be presented with evidence about a murdered person's character and the suffering the crime caused his family. The court said simply that in the 1987 and 1989 cases the court erred in wringing from the Eighth Amendment the idea that states are not permitted to decide that "victim impact evidence" helps juries decide the appropriate punishment.

Justice Marshall dissented.

Liberal critics of the court are today expressing a new-found and no doubt evanescent reverence for stare decisis -- the doctrine that precedents should be followed. That is a sound general rule; could only be an iron-clad rule if we assumed that the court never makes mistakes or that mistakes should never be corrected. Were all precedents sacred, no matter what their logic, there would not have been many of the court rulings most revered by liberals, including Brown v. Board of Education, the school desegregation decision that overturned the 58-year-old separate-but-equal ruling in Plessy v. Ferguson.

Every year the court overturns some precedents. It does because most justices agree with Felix Frankfurter that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."

In the Michigan and Tennessee cases the court's conservative majority read the Constitution in a way ("strictly") that caused the court to defer to the discretion of democratic institutions -- the Michigan and Tennessee legislatures. Many liberals lament the moderately conservative balance today being struck regarding a perennial conundrum of America's constitutional democracy, that of reconciling constitutional supremacy, and hence judicial review, with majority rule.

Today's liberal laments are puzzling. The more liberal party, the Democratic, controls both houses of Congress and most state legislative chambers. Furthermore, a heavy preponderance of what the court does is statutory, not constitutional interpretation.

Sen. Patrick Leahy, D-Vt., a member of the Judiciary Committee that will consider confirmation of Clarence Thomas, has a peculiar, and peculiarly liberal, notion of the court's function. On television Sunday, after he repeatedly stressed the importance of the court in protecting individual rights, he was asked if community rights, as expressed through state and federal laws, are also due some deference and protection. Mr. Leahy replied: "You elect people to make those community rights. The Supreme Court protects individual rights."

Actually, our constitutional dilemma is not so simple. It involves the court on all sides of unending, indeed unendable tensions fTC between competing values and powers.

The coming debate about Clarence Thomas' confirmation will discomfort some conservatives, too. Some conservatives are flying, intellectually, on automatic pilot, doing well, if not good, by tickling the country's anti-government reflex. They must face the fact that the "strict construction" they praise has the consequence of broadening the reach of government power.

George F. Will is a syndicated columnist.

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