Life, Liberty and Elbow Room

According to the Los Angeles Times, a California-based Federal district
court has taken up the question of whether California‘s
prison overcrowding violates the prisoners’ “constitutional rights.”
The case name has not been released to the public, and there may be no single
case, for the question comes on the heel of multiple lawsuits filed by
attorneys claiming medical neglect of prisoners constitutes an infringement of
their Constitutional rights.

The objectionable part of this situation is not
the fact that the court has taken the case, however – certain instances of
litigious zealotry will always make it to court – but rather that the court,
despite not having officially ruled in either direction, has apparently begun
“speaking and acting as if they have already decided to take action
against the state”, at least according to the Times.

What on earth does it take to placate these would-be
judicial despots? Apparently not satisfied with already
being repudiated for their activism
once, the court system appears to be
determined to force California‘s
citizens to accept yet another instance of constitutionally dubious
interference. This time, they are doing this by arguing that murderers, rapists
and thieves have an inviolable right not only to standard excesses of the Warren court, but to elbow

Before dissecting the absurdity of this instance of judicial
malfeasance, it may be worthwhile to first explain the full argument of the
plaintiffs. The plaintiffs argue, according to the Times, that the overcrowding
of California‘s prisons has a
direct correlation with lack of proper medical/psychological care within the
prisons, and that as a result, the mental and physical health of the inmates is
suffering to such an extent that it may amount to a violation of the inmates’
constitutional rights. Though the article does not explain which
“rights” this would violate specifically, the only possible argument
one can foresee is that these conditions are a violation of the inmates’ due
process rights. That is, the clause in the Fourteenth
which states that no person “shall be deprived of life,
liberty or property without due process of law” supposedly forbids prisons
from being overcrowded.

In a pre-Warren Court world, this sort of argument would be
laughed off before it even reached the docket. However, California has the
great misfortune of having its district courts supervised by the 9th U.S.
Circuit Court of Appeals, one of the most infamously activist circuits in the
country. As such, the district judges in California
have very little incentive to fear that their activist decisions will be
overturned by such a body. That is, assuming their activism swings reliably to
port side, but in San Francisco
(where the courts are located), that is something of a foregone conclusion.

Assuming the Times is telling the truth about the direction
the court will go, the reader fluent in constitutional law should experience an
eerie sense of Déjà vu and perhaps flashback to Justice John Harlan’s dissent
in Miranda
v. Arizona
, in which Harlan wrote: “Nothing in the letter or the
spirit of the Constitution or in the precedents squares with the heavy-handed
and one-sided action that is so precipitously taken by the Court in the name of
fulfilling its constitutional responsibilities.”

A key distinction must be made here. It may be – in fact, it
is unquestionable – that prison overcrowding is an undesirable condition for
all parties and that a policy that reduces overcrowding would be desirable,
assuming it didn’t distort other elements of the justice system. However, it is
not sufficient constitutionally to argue that something is good policy. The
alternative must actively transgress the Constitution and, like it or not,
there is nothing at all either in California‘s
Constitution or in the United States Constitution that says anything directly
about the right to good mental or physical health.

Of course, we all know that the actual text of the United
States Constitution is no obstacle to the ideas of activist judges, but they
still find it necessary to use the document as an excuse so as to avoid the
perilous shade of Lochner
v. New York
(a case so infamously incoherent that it earned its own verb),
which constantly hovers, waiting to consume judicial credibility.

Therefore, one can anticipate some sort of gobbledygook
about “evolving standards of decency” or “living,
breathing” constitutionalism or, god forbid, “penumbras
and emanations.
” There is also likely to be some sort of reference to
sociological jurisprudence, a practice which unfortunately gained credibility
because of its application in Brown v. Board of Education(hyperlink), and has
since been used to justify all sorts of less historically important, and more
incoherent, decisions.

Naturally, the case will likely end up in front of the
United States Supreme Court but if it doesn’t, the justices should be warned to
consider something far more dangerous to their credibility than a
jurisprudential slap on the wrist from Scalia, Thomas, Roberts et al. The Times
warns that if this case is decided against the state, its logical outcome could
be the mass release of a large number of prisoners. If there ever were a more
cast-iron excuse for backlash against the court, it is this, and considering
Schwarzenegger’s recent love of heavy-handed tactics, one can imagine a
Jacksonian response to such a decision – “the girly men on the Court have
made their decision, now let them enforce it!” Thus, the perils of
tinkering with the rule of law would be laid bare – for these wise men in robes
will not long survive unless they allow those tasked with enforcing legal
edicts to do their jobs in imperfect circumstances.

The Constitution leaves no elbow room for activism, and as a
result, the right to elbow room deserves a swift rejection.