Rejecting the Humpty Dumpty Constitution of Judge Tigar

By | 2017-06-02T18:30:05+00:00 January 17, 2017|
Print Friendly, PDF & Email

16117273_10156277225308973_1396284777_nA 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.

About the Author:

Robert Curry
Robert Curry serves on the Board of Directors of the Claremont Institute and is the author of Common Sense Nation: Unlocking the Forgotten Power of the American Idea from Encounter Books. You can preview the book at: http://www.amazon.com/Common-Sense-Nation-Unlocking-Forgotten/dp/1594038252 He also serves on the Board of Distinguished Advisors for the Ronald Reagan Center for Freedom and Understanding.
  • Mark Pulliam
    • Robert Curry

      Thanks!

      All the best.

  • zoomie

    the western regressive motive is power

    • Robert Curry

      …and the ‘narrative’ is the cover story.
      Nicely done zoomie,
      The real meaning of the vast narrative in a nutshell. Congratulations!

  • bdavi52

    Yes. Absolutely.
    But we now inhabit exactly that Humpty Dumpty World — a place where words and their meaning are all relative to the speaker and his or her intent & understanding and can transmogrify from butterfly to beast to butter, as the speaker so desires.

    Beware the Jabberwock, my son…. the jaws that bite, the claws that catch.

    To insist that English definitions are, indeed, definitional — meaning exactly what they say they mean (a meaning which is, as Curry quite appropriately notes) critically & absolutely dependent upon a common sense/rational understanding (crafted through centuries of experience and centuries of learning) of the language, the culture, and the world … all that is to deny what has become the Frumious Bandersnatch. We live in the Post-Modern, Multicultural, Nothing but Relativist Present; we live behind the Looking Glass and things now mean only what we say they mean only for as long as we choose to so say.

    “‘I know what you’re thinking about,’ said Judge Tweedledum: ‘but it isn’t so, nohow.’
    ‘Contrariwise,’ continued Judge Tweedledee, ‘if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.’

    Thus a “cruel and unusual punishment” of a convicted murderer becomes the State’s common-sense refusal to enable & fund the permanent mutilation of a delusional adult who insists, in that delusion, that he has magically become a woman. This, of course, is insane.

    And if he then imagines himself a hat, presumably the judge would order a hat-rack for his cell…and if thought himself a stalk of corn, the judge would no doubt require his ‘planting’ within a plot of ground with plenty of sunlight & water (and perhaps a sprinkle or two of fertilizer). Judge Kennedy said it first, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

    Reality it seems (Truth itself), is only & exactly what we say it is when we say it is for as long as we decide to say it is or isn’t — no more no less.

    ‘He’s dreaming now,’ said Tweedledee: ‘and what do you think he’s dreaming about?’
    Alice said ‘Nobody can guess that.’
    ‘Why, about you!’ Tweedledee exclaimed, clapping his hands triumphantly. ‘And if he left off dreaming about you, where do you suppose you’d be?’
    ‘Where I am now, of course,’ said Alice.
    ‘Not you!’ Tweedledee retorted contemptuously. ‘You’d be nowhere. Why, you’re only a sort of thing in his dream!’
    ‘If that there King was to wake,’ added Tweedledum, ‘you’d go out—bang!—just like a candle!’
    ‘I shouldn’t!’ Alice exclaimed indignantly. ‘Besides, if I’m only a sort of thing in his dream, what are you, I should like to know?’
    ‘Ditto’ said Tweedledum.
    ‘Ditto, ditto’ cried Tweedledee.

    “Ditto, yourself!”, cried Judge Tigar — and off to the woods they wandered.

    • Robert Curry

      Dear bdavi52,
      Thanks for the brilliant–and amusing–lesson!
      There is much going on in what you write about (Please be on the look-out for my next book, finished but not yet published).
      Best wishes…

  • Such good points in this piece. Here’s another fascinating article on the subject of “Humpty Dumpty and the Law”:

    http://comparativelawblog.blogspot.com/2006/12/humpty-dumpty-and-law.html

    The most important quote:
    “…the real problem with Humpty’s view is related to authority; the fact that the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge.”

    PS: Wrote a piece on that theme also, a few years ago: http://www.americanthinker.com/articles/2012/03/the_master_of_words.html

    • Robert Curry

      Dear Ms. Simpson,
      Thank you for the link to your excellent piece.
      I heartily recommend it to every AG reader.
      Wishing you the best.

    • AEJ

      Excellent piece you wrote for americanthinker.com!

  • Thank you for this concise analysis. I live in California (the inland conservative strip, not the loony, progressive coastal strip), and am outraged over Judge Tigar’s subversion of the Eighth Amendment. Alas, it is only one outrage among many in a once-beautiful state being crushed under the boot of ruthless, unrestrained progressivism. Another example: the legislature just passed, and Governor Brown just signed, a bill legalizing child prostitution. This was done so quietly that our shocked citizenry only found out after the fact.

    • Robert Curry

      Dear sotto voce,
      Thank you.
      Like you, I live in California. I can remember when our beautiful state was so great in so many ways. Even our public schools were once admired!
      Bad political policies and bad political decisions have done terrible damage to our beloved state.
      With best wishes.