In Nardone v. U.S., the Supreme Court held that any subsequent evidence found through illegally obtained evidence was the “fruit of the poisonous tree” and inadmissible. That same label should apply to courts applying delusional misinterpretations of the Constitution.
Here’s an example from Alaska. Is it really a “cruel and unusual punishment” not to give a male criminal guilty of sexually abusing children female hormones or allow him to dress as a woman or force taxpayers to pay for the surgery necessary to cut off his male genitalia and create the charade, in prison no less, that he is a woman?!
That is the poisonous ruling in Wagoner v. Winkelman.
The Eighth Amendment bans “cruel and unusual punishments.”
The founders intended it to end the cruel punishments inflicted at the time, such as flogging, pillorying, and drawing and quartering. Everything changed in 1958 in Trop v. Dulles, when a straying Supreme Court rejected the original understanding and intent of the Eighth Amendment, holding that it would be defined by “evolving standards of decency that mark the progress of a maturing society.”
That’s activist-judge-speak for “whatever we say the Constitution is.” It held that the refusal to issue a passport to a World War II deserter who was dishonorably discharged was “cruel and unusual punishment.” No, really, the court held that denial of a passport was the same as drawing and quartering.
In 1976, in Estelle v. Gamble, the Supreme Court opened the door for judges to delve into whether a prison official intentionally denied or was “deliberately indifferent” to an inmate in terms of providing the “minimal civilized measure of life’s necessities” — more activist-judge-speak.
Severing the connection to the original understanding of the Constitution is like untethering a balloon; who knows where it will float next? In the 9th Circuit, it led to the 2019 decision, Edmo v. Corizon. In that case, the appeals court upheld a district court opinion ordering Idaho to provide gender-transition surgery for a man who was in prison for sexually abusing a 15-year-old boy.
To do otherwise, according to the 9th Circuit, would violate the Eighth Amendment.
Thus, the 9th Circuit gave judges an untethered license to decide whether the day-to-day decisions of prison officials, including on medical care, violate the Eighth Amendment.
However, in 2019, the Supreme Court indicated in Bucklew v. Precythe that it would rely on the original understanding of the Eighth Amendment. But that has not stopped activist judges from applying the amendment in situations like the Alaska case.
Emmanuel Cancel, who now goes by the name Emalee Wagoner, is serving a 40-year sentence after pleading guilty to three felony counts of sexual abuse of a minor. He pleaded guilty to avoid the full consequences of the 42 counts he was originally charged with: sexually abusing multiple children for over a decade.
Due to his claims that he was “really” a woman, Alaska gave him mental health counseling, multiple medical evaluations, and even cross-sex hormone therapy — well beyond what rationality or the Constitution requires.
But that was not enough. No, this child abuser sued, demanding that taxpayers fund his very expensive medical treatment called vaginoplasty, in which a surgeon castrates a male and then constructs a fake vulva and fake vaginal canal. To support his case, Cancel relied on the treatment recommended by the World Professional Association for Transgender Health, an infamous organization so tainted by ideology and bad science that it has been labeled the “leading enabler of transgender medical quackery in the world.”
In what would be funny if it were not so serious, the expert Cancel used, who wrote WPATH’s guidelines for “institutionalized individuals,” admitted in court that she had no “extensive clinical experience with incarcerated persons … had never worked for or in a correctional institution…did not have any specific training with prison operations, and could not provide any opinions relating to policies and procedures for keeping inmates safe.”
Despite this, Judge Matthew Scoble found her testimony “credible.”
Scoble said he was bound by the Edmo decision, although he acknowledged that “gender dysphoria is … a salient topic of political controversy.”
He questioned the 9th Circuit for relying almost exclusively on WPATH, describing how the 1st and 5th circuits have decided similar cases very differently.
Scoble still ruled for the convicted pedophile despite finding that “in contrast to the state’s medical experts, Wagoner’s experts simply do not have meaningful experience treating incarcerated individuals.” He also recognized that “WPATH does not wrestle with the unfortunate and unavoidable realities of custodial care.” He said its recommendations are “entirely devoid of any recommendations that address” the concerns of prison authorities.
RELIGIOUS FREEDOM REQUIRES ETERNAL VIGILANCE
Scoble starkly outlined the outrageousness of the 9th Circuit’s lawlessness:
“The Eighth Amendment presents a distinctly American juxtaposition…a law-abiding member of a community who suffers from gender dysphoria may not receive [gender confirming surgery] at taxpayer expense. On the other hand, a person who violated the social contact in perhaps the most egregious way – such as serial sexual abuse of children that they themselves were supposed to protect – might receive [such surgery] at the expense of the taxpayers.”
If rogue judges were not misinterpreting the Constitution and feeding into the latest politically driven medical dribble, there would be no “juxtaposition.” This is the inevitable result of ignoring the actual Eighth Amendment and instead allowing judges to define it based on their subjective, vague, and faddish predilections.
Hans von Spakovsky and Thomas Jipping are senior legal fellows in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom.
