New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

This cover of the summer issue of the Marquette Lawyer. The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.

The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.

Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.

In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”

A future post will discuss another pair of articles in the magazine that would support the same reaction. Click here to read both Young’s lecture and Strauss’s comment.

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New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.  

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Both Sides Now: The Interactive Constitution

Constitution & GavelI recently learned about an amazing feature on the National Constitution Center website: an interactive Constitution. The site contains the entire United States Constitution and all of its amendments.

Click on any part—the Preamble, any of the seven articles, or any of the 27 amendments—and view the text of that part, along with the dates of its signing or passage and its ratification. You’ll also learn if any part of the Constitution was changed by an amendment.  Article I contains several sections that were changed by later amendments. For example, click on the highlighted text in Article I, section 3 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”) to learn that this section was changed by the 17th Amendment, which allows for the direct popular election of senators.

The most interesting part, however, is that you’ll also get views from constitutional scholars “across the legal and philosophical spectrum.”

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