The Moment of Truth — June 29, 2002
Five Justices Should Resign Or Be Turned Into Ice Cream
Hi, I’m yours truly and welcome to the Moment of Truth, the caramel of coolness on the corn of courage among a bunch of not-even-close-to-as-good other snack choices.
Justice Antonin Scalia of the worst Supreme Court ever says any judge who believes the death penalty is immoral should resign. Why? Because capital punishment wasn’t considered cruel and unusual when the framers wrote article four of the Constitution. Scalia says that those who believe current attitudes and moral standards are the gauge of cruelty and unusualness are treating the Constitution as a living document. But no, says Scalia, it’s dead, though he prefers to call it “enduring.” With a knowing chuckle. Those other guys, who say it’s living, are actually killing it. But I, Scalia, who respect it as the enduring thing it is — I’m the REAL caretaker of the Constitution. How ironic.
So these judges who believe the Constitutional right of the United States to execute people is immoral, these errant judges should realize the conflict of interest in their moral stance, and resign. I guess it’s as if a judge were morally opposed to voting for a representative government. Or opposed to the right of Congress to make laws. I won’t delve into the subtle irony in the examples I’ve cited here because I would have to dredge up some of Scalia’s recent opinions, and that would just be ad hominum nastiness. And, just as I don’t believe the State should execute retarded people, I don’t believe in mocking those whose mental abilities are more severely stunted, albeit voluntarily, and regardless of whether or not the will to retard one’s own mind originated in a complete disregard for the condition of one’s own soul. Such as it is or may be. Or not.
I think what Scalia’s saying is that he’s a strict-constructionist. A strict-constructionist is like a religious fundamentalist, except that a Constitution guarantees rights and a scripture guarantees punishments. At least, the one Scalia believes in does. He’s a Catholic. I don’t know if he’s a strict-constructionist Catholic. I don’t know if he believes in the infallibility of the Pope. See, popes come and go, and when they do they change things, like the eating fish on Friday thing, or that whole Vatican II experiment Pope John XXIII came up with that encourages Catholics to act out of compassion for the poor, which Scalia seems not to have paid attention to. But if the Pope is infallible, and yet the Word of God changes in interpretation from pope to pope, how can a political constitution containing provisions for its own emendation be considered deader than the Word of God? Well, that’s one for the theologians, and Scalia is no example of one of those.
The problem with being a strict-constructionist vis-à-vis the Constitution is that you have to read it. Or rather, you should. And if you did you might come across a thing called article five. And article five outlines the process for amending the Constitution. That is, changing it. Well, now, how would we change it? Well, what does the Constitution do? It outlines, limits, and delegates powers between the branches of the federal government and between the federal government and the states, and it guarantees the rights of the people. And one of the specific things it does is forbid cruel and unusual punishment. Scalia seems to be aware of that. Perhaps one of his friends told him about it.
Now, there’s an amendment, and this amendment was made only fifteen years after the Declaration of Independence was signed, so most of those framers Scalia likes to put words in the mouths of were still around. The amendment I’m talking about is the ninth one. It goes like this:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
What can that possibly mean? Here we have article five telling us how we can alter the Constitution, and an amendment saying that the Constitution doesn’t constitute a complete enumeration of the rights of the people. It’s like the thing is just begging to be altered and interpreted. Or are we to imagine we can divine what rights the framers had in mind that they decided not to enumerate? If so, then, if anyone, surely Scalia knows what they are. Perhaps he’ll supply us with a list of them.
Of course, the framers didn’t have a particular finite list of rights in mind. They were just planning for unforeseen future and/or contingent circumstances. So, if the moon were discovered to be made of ice cream, and George W. Bush decided he and his friends were the sole owners of it, the people, believing they also had a right to participate in the divvying-up of the ice-cream moon, couldn’t be denied that right by the Constitution. Or let’s say rich people could turn poor people into ice cream, thereby rendering them non-human. And let’s say the rich people then used that condition as an argument for depriving the ice-cream poor of their Constitutional rights. The ninth amendment allows the people to retain their Constitutional rights, whether they’re made of ice cream or not. And in fact, although the Constitution doesn’t specifically prohibit the rich from turning the poor into ice cream, the people could still argue constitutionally that they had a right to not be turned into ice cream against their will.
Now, the Constitution forbids the use of cruel and unusual punishment. Scalia says that, since there was capital punishment when the article was written, capital punishment wasn’t considered cruel and unusual by the framers. So even though they didn’t specify which punishments were cruel and unusual, Scalia assures us that, if they HAD made a list of cruel and unusual punishments, capital punishment wouldn’t have been on it.
Now, if they’d made a list of cruel and unusual punishments, here’s another thing that wouldn’t have been on it: the grafting of cancer cells onto the eyeballs of prisoners. Still, I don’t think anyone could construe the absence of such grafting on the framers’ hypothetical list to be a tacit condoning of the practice. Too easy? How about flogging? Flogging was not an uncommon punishment in the framers’ time. Does Scalia believe that flogging is a constitutionally guaranteed prerogative of the State? I bet he does.
Okay. How about this: the people retain certain rights not enumerated in the Constitution. Let’s say, some time in the impossible-to-imagine future, all the civilized countries of the western world outlawed capital punishment. Now, isn’t it among the unenumerated rights of the people to abide in the United States without having the government holding the threat of death over their heads? Especially when that right is granted them by other governments? I mean, if one government grants you a right, surely that’s a right you can retain. It doesn’t mean it’s a good or a bad right, but it’s a right nonetheless, and according to the ninth amendment it’s not to be construed to be denied or disparaged by the Constitution. Yet Scalia does construe thusly. He is wrong.
The thing is, regardless of how full of crap my examples are, it’s clear that the Constitution was designed to be altered and questioned, especially by the people, who retain rights that are not even enumerated therein. One of which could easily be the right to be treated as humanely as other citizens of the civilized western world. I would say that, given the ban on cruel and unusual punishment and exorbitant levies and fines, the framers were inclined to consider humane arguments and leave the Constitution open to alteration according to such arguments.
Or, let’s do it the strict-constructionist way: the Constitution was clearly designed to be amended, according to article five. The Constitution acknowledges the retention by the people of rights not specifically enumerated therein, according to article nine. Elsewhere the Constitution specifically protects the people from governmentally sanctioned unreasonableness, cruelty, and excess. These are all specifically mentioned.
What is not specifically mentioned is the prerogative of the federal government or of the states to execute people.
Now, the question is, which is a stricter interpretation: 1) the one where judges who find the death penalty immoral believe the framers intended the government be open to broadening rights to humane treatment or 2) the one where Judge Scalia believes the framers meant for capital punishment to be exempt from inclusion in the cruel and unusual clause of article four because they didn’t list it?
Which statement is more persuasive? “The framers intended to enable the people to demand more humaneness from their government,” or “The framers intended for capital punishment never to be abolished, on into the unforeseen future?” Which argument carries more weight? Which is more plausible? Which argument makes sense?
Which judge should resign, the one who would enforce the rights of the people to demand new humane rights from their government, or the one who holds sacred a message he received in a fit of telepathic shamanism from a bunch of dead pantheists who believed in first causes and prime movers and had sex with their slaves?
Resign? How about the judge who wants a dead Constitution to go with his dead poor people of color? How about the judge who violated the twelfth amendment stating that the House of Representatives decides disputed presidential elections? How about the hypocrite? How about the crook? How about his four crooked friends in their crooked hypocrites’ robes, all crooked and hypocritical over there?
What do I know? I’m just a person, retaining rights not even enumerated in the Constitution. Until I find out what they are, I remain yours truly, and this has been the Moment of Truth.
[For an objective discussion of capital punishment, see my article of 5-19-01, “Capital Punishment Considered Objectively.”]