Whelan’s Misplaced Blame: Constitutional Interpretation Killed No One

Perhaps Ed Whelan just found out what it feels like to be a transgender high school kid. After all, when something bad happens that touches you personally, it distorts your sense of reason and compels you to search desperately for a rationale that justifies your desired outcome. It can happen to the best of us, and maybe it happened to Ed.

This one hits close to home: Keith Boyer, a police officer in my hometown of Whittier, California, was shot to death on Monday at an intersection near my childhood home. Police have identified Michael Christopher Mejia as the suspect in Boyer’s killing.

It’s tragic when someone is murdered. For some, a cop’s murder matters more than another person’s murder. That reflects their values, their politics, as a cop is just another human being whose day job involves wearing a badge. People explain away their special devotion to police through rhetorical means, that cops are symbols of society, or at special risk, or our protectors and saviors.

Each of these is dubious and debatable, but there’s no reason to argue about whether Boyer’s death is a tragedy. It is. The variation on the theme of who’s the most victim-y victim is nothing more than right-side perspective versus left. 

Mejia had been in prison for stealing a car. Whether Ed extrapolates car theft as a gateway crime to murder isn’t clear, but that, plus some probation violations, appears to clearly indicate that he should never have been there to breathe free air, or murder Boyer. But since we don’t sentence people to life plus cancer for every crime, he was out. This, Ed contends, is why blame shifts from Mejia, the killer, to an idea.

There may be some dispute as to whether Mejia’s freedom was the product of the usual process of the legal system or California’s AB 109, a law enacted to “fix” the fact that California had too many people in prison, didn’t feel like warehousing them properly, didn’t want to spend the money, and instead stacked bodies like cords of wood under the assumption that Californians would be too busy sipping Chardonnay and emoting about their feelings toward transgenders to notice they were treating prisoners slightly worse than the Spanish Inquisition.

So the problem ended up on the Supreme Court’s bench.

 The Supreme Court ruling that the article refers to is the Court’s 5-4 decision in 2011 in Brown v. Plata. That decision affirmed what Justice Scalia in dissent called “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals” and to maintain its prison population below a certain threshold.  In his own dissent, Justice Alito lambasted the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faulted the Court majority for “gambling with the safety of the people of California” in a way that “will lead to a grim roster of victims.”

Ed’s issue here is kinda tricky, in that it’s a fight over remedy rather disease, though you wouldn’t know it at first glance. The remedy was, to be sure, radical, though the problem was lack of an alternative means of fixing the problem. The Supreme Court couldn’t order Califorinia to magically create adequate prison facilities to warehouse its convicts. They couldn’t order constitutionally adequate prisons to spring forth from the earth overnight. And they couldn’t order Cali’s citizens to spend their Chard cash on systemic infrastructure that had been neglected forever while putting as many minorities in prison as possible.

So, the only solution to end prison overcrowding was to compel the un-crowding. As Sam Bieler explained, that’s going to have some unavoidable consequences.

But here’s the kicker: that 50 percent reduction is already included in the numbers above. The Bureau of Justice Statistics puts 3-year recidivism rates at about 68 percent. The package above assumes 34 percent recidivism rate, which is just about the best-case scenario for reform. And still: one murder, two rapes, 31 assaults, and 13 burglaries.

In other words, when you let people out of prison, some will commit crimes. The issue is the tipping point between release and recidivism, not irrational beliefs that they’re all angels or devils. So if California didn’t want Mejia (or, if he wasn’t, in fact, released because of Brown v. Plata, then the next Mejia, as there will assuredly be a next Mejia eventually), they should have addressed their prison infrastructure, spent the money, built enough cells to hold them. They didn’t.

Ed then takes a deep dive into Chaos Theory by shifting blame away from the alleged killer, Mejia, from the confirmed grossly neglectful California, to the constitutional theorists who affirmed the remedy resulting in AB 109.

But for the reasons spelled out in Scalia’s and Alito’s dissents, I believe those rulings were glaringly wrongful exercises of judicial activism. And while I will happily assume that all the jurists were acting in subjective good faith, that doesn’t render their rulings objectively faithful to the Constitution.

It’s curious that Ed doesn’t condemn judicial activism, per se, but only “glaringly wrongful exercises” of it. As is true for most people, even those who disavow “consequentialism,” there is a huge difference between the goals they prefer and the goals they don’t. But what makes this so glaringly wrong?

I’ll also note that so-called “living constitutionalists” routinely offer consequentialist justifications for their judicial inventions. As I’ve explained, I don’t believe that consequences provide the proper measure of the soundness of an interpretive methodology. But for those who do, they should be ready to accept responsibility for the adverse consequences of their rulings—including (so it appears) the murder of Officer Boyer.

Ultimately, Ed Whelan blames Officer Boyer’s death on Supreme Court justices who don’t support originalism or textualism in constitutional interpretation. As if bad things aren’t done by people regardless of the theory of interpretation employed by a justice. As if a textualist interpretation that some prefer, say Heller, won’t put a gun in the hand of a guy who kills a cop one day.

That any ruling might eventually produce a tragic outcome, because people are still people and some people will end up doing bad things no matter how hard we try to pretend one more tweak of the system will end it forever, doesn’t make the ruling wrong. Stercus accidit.

I’ve become less a fan of the “living Constitution” approach over the years from when I was weaned on it being the “right” view as I’ve seen the emanations and penumbras shift further and further away, until exceptions undermine the rights that gave them birth. But despite my increased preference for textualism, there is not merit to the notion that constitutional interpretation is to blame for bad actors, for the eventual fact that no matter what ruling the Supreme Court issues, some tragedy somewhere will happen and, given enough leeway in connecting unrelated dots, be traced back to it.

Perhaps Ed wouldn’t try so hard to shift blame onto a theory of interpretation, and engage in the conservative version of blaming ideas and words for harms outside their control. Just as progressives scream “racist” and “sexist” for every argument against their vision, Ed screams “judicial activism” and “living Constitution” against his. Neither reflects logic or rational discussion.

Ironically, Ed engages in a similar rhetorical game as transgender advocates, manufacturing a false legal narrative to justify his ends. Maybe this is because he was too close to this killing and it touched him personally. Or maybe the similarities in belief are far stronger than either side realizes. Just from opposite extremes.

12 thoughts on “Whelan’s Misplaced Blame: Constitutional Interpretation Killed No One

  1. B. McLeod

    Obviously, we must never let anyone out of prison. Problem solved!

    Not sure who is going to pay for it though.

        1. anonymous coward

          It’s been tried, hence “might as well be hung for sheep as lamb”. The problem is when theft and murder both get you executed, the the thieves just add murder to theft.



    When the State of California decided by default to create a Gulag, any sane person (including Whelan) would understand that there would be consequences. But since the political branches of California took the position that “we are broke and don’t want to tax to build or fix the prisons” it made a cold-hearted political calculation.

    The reasoning went something like this: “We know we must address he prison horror created by overcrowding and lack of funding, but let the federal courts select the method and take the heat.”

    An honest conservative would have lambasted California for behaving like Russia when it comes to prisons. An honest conservative would have also lamented that both liberals and conservative constantly look to the federal courts to solve systemic problems that the federal and state political branches are too stupid and too venal to fix all the while fully understanding that the courts lack the institutional capacity to fully address systemic problems.

    All the best.


    PS By the way, I don’t know who had the better legal argument before the Court. But that is far less important to me than calling Whelan and the rest of his ilk to account for their hypocrisy. The cop didn’t die because of the federal courts. The cop died because our notion of the rights of states allowed California to get away with murder for far too long.

    1. SHG Post author

      And, it goes without say, the irony of this happening in California, given its proud progressive concerns, is hard to ignore.

        1. SHG Post author

          The overdeveloped sense of righteousness comes at the expense of an underdeveloped sense of irony. Something, something, natural selection.

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