A federal judge ruled recently that an inmate serving a life sentence for murder in California must receive sex-reassignment surgery at taxpayer expense.
The inmate was Rodney James Quine, 57, twice married and the father of two daughters. I write “was” because while in prison he changed his name to Shiloh Heavenly Quine. Quine began living as a woman in 2008, when prison officials authorized hormone treatments at taxpayer expense. Quine then began pushing for a sex change operation, to be paid for by California taxpayers like everything else in prison.
Enter Barack Obama. In 2013 Obama appointed Jon Tigar to the federal bench. Tigar, who evidently shares Obama’s fascination with the world of the transgendered, assigned himself to Quine’s case and appointed a team of San Francisco lawyers and the Transgender Law Center to represent Quine. The result of Tigar’s ruling in Quine’s favor is that the state of California must now provide sex reassignment surgery for prison inmates. Terry Thornton of the California Department of Corrections explained that the policy was required by the Eighth Amendment of the U.S. Constitution.
It has taken more than 200 years for a judge to discover this requirement hidden deep within the Eighth Amendment—and no wonder. Here is the Eighth Amendment in its entirety:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Neither excessive bail nor excessive fines apply in this case, so the relevant phrase has to be “cruel and unusual punishment.” But Quine’s life sentence for the crime of murder is not unusual. Nor is it cruel, certainly not in comparison to his crime. Quine’s victim begged for his life; Quine’s punishment, in contrast, permits Quine to live out the rest of his natural life.
It is perfectly clear that the Eighth Amendment does not require Tigar’s ruling. Only an Obama/Tigar partisan could defend the decision. Clearly something has gone wrong here. But what is it that went wrong?
You might expect an answer along the lines of Tigar overstepping the limits of his office, or that the judge has “legislated from the bench.” You might also expect me to observe that we have become accustomed to misguided and unwise policies emerging from Sacramento, but that this “policy” is too deranged and irrational even for the current California legislature and governor, and so naturally had to come from the bench. Of course all of this is perfectly true and applicable to this situation, but I want to take a different approach to this travesty of justice.
Something is missing from Tigar’s ruling, and that something is common sense.
Look again at the Eighth Amendment. It states that bail and fines cannot be “excessive,” but no rule, no algorithm, is offered to calculate when they are excessive. Punishment is not to be “cruel and unusual” but no further elaboration of this definition is included. James Madison, the author of Eighth Amendment, was relying on our common sense to be able to recognize excessive bail and excessive fines and cruel and unusual punishments when we encounter them.
It is by means of common sense that you and I know that it is not even punishment, let alone a “cruel and unusual one,” for the taxpayers of California to forego providing a prison inmate with elective surgery at a cost of $100,000.
But wait, there’s more. Madison’s and our reliance on common sense does not stop at being able to recognize instances of excessive fines or cruel and unusual punishments. We rely on common sense even to be able to understand the language used to create the Eighth Amendment and everything else we read, see, or hear. Our ability to understand the Eighth Amendment (or, really, any sentence) is also what enables us to understand what Tigar is trying to do. Obviously, the judge is using his office to try to hijack, in broad daylight, the meaning of the phrase “cruel and unusual punishment.” His ruling shows that in the absence of common sense any statement can be made to mean seemingly anything.
The powers of a federal judge, awesome as they are, do not include the powers claimed by Humpty Dumpty in Wonderland:
When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.
Lewis Carroll gets it just right, of course. It all comes down to who is master: “Are you going to believe me, a federal judge who, as a result of my intellectual prowess, has been cloaked in fine robes and bestowed with vast judicial power, or are you going to believe the plain meaning of the text? Will you trust your common sense—a part of the commonwealth of understanding and reason we Americans share—or will we rely upon ‘experts’ who can do clever things with the language and make it evolve according to their whims?”
Given the opportunity, the Founders would say it is obvious the Eighth Amendment does not require taxpayer-funded sex-change operations for prison inmates. If asked how we know that, the Founders would without hesitation reply that it is plain common sense. Here is Chief Justice John Marshall doing precisely that in order to answer the question of who is the boss, Judge Tigar or the people Tigar is supposed to serve:
It is the plain dictate of common sense, and the whole political system is founded on the idea, that the departments of government are the agents of the nation…
Judge Tigar either works for us or he doesn’t. If he does, among the many things that means is this: He does not get to make words mean whatever he chooses for them to mean.
Some years ago I watched an academic conference on the Constitution broadcast on C-Span. It featured professors of constitutional law from the law schools of the most prestigious American universities. The keynote speaker began the conference by stating that he was completely uninterested in the outdated thinking of a group of dead white men who wore wigs and lived in the 18th century. He was, of course, referring to the Americans who actually wrote the Constitution. Incredibly, the conference went downhill from there.
The speaker was an advocate, not of the Constitution, but of modern progressivism and its century-long project to rid America of the Constitution. What may be hard for citizens who do not immerse themselves in the writings of people from this field or read judicial opinions in their spare time to grasp is that this professor is in the mainstream of constitutional law professors. In fact, it is American professors of constitutional law interested in the thinking of the authors of the American Constitution who are in a very small and distinct minority.
But Jon Tigar represents something even more radical than the keynote speaker at the conference. Postmodern progressivism does more than simply reject the ideas of the American Founders; it goes far beyond that to declare that the very meaning of words are up for grabs, and that people in positions of political and legal power get to determine what those words mean.
Donald Trump will be selecting many judges and perhaps a number of Supreme Court justices. I wish him well. Much rides on his success in finding people who combine robust common sense with fidelity to the Founders’ Constitution.