The Constitutional Black Hole

There are Vague Instances in the Document When Clarity Is Required; Politics and Judicial Gamesmanship Prevent any Resolution

Quick. Off the top of your head. Which Constitutional Amendment is the “Right to Privacy?” How about where in the Constitution does it describe “Standing?” What about the requirement that a person be read their “Miranda Rights?” OK last one— Which Amendment explicitly offers the right to an attorney?

O.K. pencils down. The answer to all these are that NONE of them appear in the Constitution. None of them are spelled out. None of them are guaranteed as rights in any way. These are all created by judicial interpretation. One of the biggest reasons the Supreme Court is having such a huge problem right now in it’s reputation and legitimacy is that there is barely a consensus on the extent of these issues and when it comes down to the philosophies and opinions of the individual people on the Court, it starts to look hollow, partisan and not as binding as it should be. Add to it that quite often when cases involving this can be brought to consensus or unanimity, the more partisan members of the court try and move that goalpost as much to their advantage as they can before the consensus falls apart. Americans don’t like that kind of brinksmanship, and prefer just taking the unanimous statement and leaving it at that.

Take the recent decision of removing Trump from the ballot. It hinges on the text of the 14th Amendment, Section 3.

For the most part, it’s pretty straightforward. If you have engaged in an insurrection or rebellion you can’t hold office. It’s so plain-written, that Constitutional scholars as diametrically and politically opposed as Laurence Tribe and J.Michael Luttig agreed in how basic and self-enforcing it was. The case went to the Supreme Court and they said “Not so fast. You need an act of Congress to enforce this.” Congress, has absolutely zero interest in enforcing this. And hence, the Supreme Court flushed this down the Constitutional Black Hole. Not only will it never be enforced going forward, by taking that action there is no consequence to openly opposing the very oath Congressman and Senators are required to take to hold office. Tribe and Luttig were outraged, and wrote this very apt rebuttal.

Nonetheless, the Constitution is merely a framework for our government. It is not a panacea for everything. It’s a construction. And like all man made constructions, occassionally some things fall through the cracks. Sometimes, its utterly coincidental and feels wrong, but other times it is completely intentional and exploitative. This is what I am talking about when I say there is a “Constituional Black Hole.”

So What is The Constitutional Black Hole

In a nutsell, the Constitutional Black Hole (CBH) is one where the laws are so vague or interpretted as being so vague so as to be utterly unenforceable or to preclude the possibility of enforcement. The Insurrectionist Clause above that the Supreme Court nixed is but one example.

One way the Supreme Court does this is through Standing, a long term Judicial requirement that to bring a cause of action to a court, you have to be the person directly harmed, within the right jurisdiction to bring the suit and the matter couldn’t have been resolved so as to be moot when the court hears it. It’s also a very handy excuse for Courts to reject deciding any matter from time to time. One of the longest arguments against courts hearing about the right to abortion was that by the time the court heard it, either the abortion or the birth had already occured making the matter moot in the eyes of the court. This prevented any court from ever having to make any decision on the matter. It was, for all intents and purposes, completely within the CBH. When Roe was ultimately decided in 1973, one of the biggest arguments to the decision hinged on that Standing issue. Justice Harry Blackmon carved out an exception to Standing that said that if the issue is likely to keep recurring but avoid court decision based on such timelines, and the litigant has standing in every other capacity, then the court can hear the matter and decide the merits for precedent. 200 years within the CBH and Blackmon pulled it out. Nothing prevents the Supreme Court from sliding back on that and eliminating that exception. And if you think that’s the only time the Court uses Standing as an excuse to avoid judgment on anything, you’d be mistaken. They quite often use it as an excuse to punt on deciding a case on the merits.

Or the “right to privacy.” There is no “right to privacy” within the Constitution. It’s a judicial interpretation that takes several of the Amendments and groups them together in a context that it can be assumed there IS some amorphous right to privacy. This “penumbra” approach seems simple enough at the macro level, but when you get into the details it’s like “well, to what extent does this privacy extend?”¹ Is it just what is explicitly stated in those foundational Amendments (along with some places in the cracks between them) or does it extend further to areas that facilitate use of those rights or rights between individuals and groups? This has been one of the biggest causes of most cases going to the Supreme Court, and with each new Justice the issue gets revisited and revised more. The next 50 years, as more and more of our online world becomes our reality, the right to privacy is going to be one of the biggest issues within the Courts and Congress to ascertain. How defined is this? Extemely ambiguous at best.

Why Congress Sets-Up Constitutional Black Holes

Congress is useless to prevent them from happening, and quite honestly, does its best to create them in the first place. In order to pass legislation, more defined laws get watered down and made more vague, leaving the results to be interpretted by the courts as to what various terms meant. These compromises are a feature of the system, not a bug.

Judges can only do so much, but interpretting what important terms in laws mean can be, well, open to interpretation. This is where various judicial philospohies arise:

• There are the “Originalists” that basically say you look at what the term meant at the time the law was passed.²

• There are “Strict Constructionists” that say “words have meanings, and you have to strictly adhere to what is encompassed by those words only. There should be no additional input as to what the words in laws mean other than the Congressional Notes on Passage, the words in the laws themselves and a Webster’s dictionary.

• There are the more “reasonable interpretationists” which kind of look at the law, divine what a reasonable interpretation of the law was meant to be and go from there.

• Yes, there are others. It gets pretty byzantine. Mostly though, these are just ways for judges to gloss themselves on how they get to a certain position. They tend to arbitrarily use these methods to support their positions and ignore them when it ends up in a result they don’t like.

If judges or those on the Court don’t like the outcome a particular interpretation may bring, they can create judicial obstacles to enforce it. This happens ALL THE TIME. The standing one is one of the oldest. A trend in more recent times relates to the ability to appeal to courts when a contract specifies that all disputes are settled in arbitration. The company picks the arbitrator, they have rules more favorable to them, if the arbitrator wants repeat business there is a bias towards finding in their favor, protections for plaintiffs in arbitration are less. But if they signed the document before there was even a dispute, Courts are loathed to get involved in such instances regardless of how egregious the process was. Hence, a formal Constituional Black Hole persists, grows and becomes the norm.

Conclusion

Yes, these persist all the time. In order to address them, a plaintiff has to be a person particularly harmed by them, and often the occassion to confront these types of injustices are rare. The occassions where a person goes up against the Black Hole and wins are rarer yet, but they do happen.

Take the Miranda case. Miranda was interrogated by police without the ability to talk to a lawyer or any functional guarantee of his rights. Before Miranda, there was no obligation to warn alleged criminals of their rights, so it was easy for police to regularly step over those lines. After his conviction and on appeal, the Supreme Court said not anymore; if you interrogate a person in police custody, you have to warn them of their rights. When a case to reaffirm came before the Supreme Court in the early 2000s, the notoriously pro-cop Rehnquist Court unanimously affirmed Miranda, 9-0.

Or take the case of Clarence Earl Gideon. There was never a right to an attorney. It’s not explicitly written in the Constitution. Nothing in the Constitution even requires a person be competent or understanding of the law. You want to talk about Constitutional Black Holes, well imagine being held for trial without any understanding of what your rights were and the courts telling you that you didn’t have a right to know or have someone explain them. Gideon was convicted after having to defend himself as an indigent. He hand wrote his appeal to the Supreme Court from jail. The Court agreed his due process had been violated and fixed it by requiring all alleged criminals to have the right to attorney.³

Those two cases eliminated some glaring Black Holes in the system. But it would be wrong of me not to point out that NEITHER are explicitly guaranteed in our Constitution; they rely entirely on juicial interpretation. If by some chance in the future a majority of the court decides differently, those rights, that everyone agrees have been beneficial and necessary for the due process of law today, can be removed and put on the scrap heap of history tomorrow, recreating the Black Holes once more.

PurpleAmerica’s Recommended Stories

The case of Gideon v. Wainwright, guaranteeing a right to counsel, was made into a 1980 movie starring Henry Fonda, titled “Gideon’s Trumpet.” It’s a great legal drama, often overlooked.⁴ You can watch the whole thing on YouTube here:

A good book I encourage everyone to read is Howard Fineman’s “The Thirteen American Arguments.” Basically, he takes the most contentious issues in modern political life, and distills them all down to 13 basic, fundamental issues. Some of these derive from the very ambiguous interpretations of the Constitution that lead to these CBHs and their impossible resolution.

PurpleAmerica’s Obscure Fact of the Day

The first people to write a paper about the possibility of a Black Hole was actually J. Robert Oppenheimer and a grad student assistant of his. They had nothing to go on but the theory that they should exist.

The paper was roundly ignored since it was published the same day the Nazis invaded Poland starting World War II.

PurpleAmerica’s Final Word on the Subject

How about another obscure fact about Black Holes instead? OK.

So the gravity within the event horizon of a Black Hole is so great that it results in an effect called “spaghettification.” Yes, this is a scientific term actually coined by Stephen Hawking. You see, if you dove head first into the event horizon of a black hole, the tidal forces on your head would be extremely stronger than those on your feet. So the molecules in your head would get sucked down into it faster than those in your feet would, stretching you out at an incredibly immense scale, like a long, narrow piece of spaghetti.

Bon apetit!

LIKE WHAT YOU SEE? MAKE SURE TO SUBSCRIBE AND SHARE!!!

Footnotes and Fun Stuff

1. One of the ways Conservative justices anger so many with their decisions is that they tend to take an exceptionally narrow view of this, sticking only to what is written in the text of the Constitution and their interpretations of precedents associated with it. More liberal justices tend to take a broader approach and more expansive view of a right to privacy. At it’s core, this distinction came to the forefront in the Dobbs decision sending abortion laws back to the states.

2. This theory is absurd to me. By that token an “arm” as in the context of the 2nd amendment means only muskets. That’s ridiculous. It would require a re-ratification of the Constitution, all the amendments and all the laws EVERY YEAR just to update the meanings. That and the fact it seems to be enforced by its adherents arbitrarily demonstates how ludicrous it actually is. Looking at you Justice Thomas.

3. In most cases where the Supreme Court chimes in, the original district court chooses not to retry the case. In the case of Gideon, the prosecutor made it a point to retry Gideon for the trouble he caused. This time, with a proper attorney, Gideon won his acquittal.

4. I first saw it in my “Everyday law” class in HIgh School.