Left Side of the Aisle #78 - Part 4

Clown of the Week: Antonin Scalia

Now for the Clown Award, given as always for meritorious stupidity.

This week's dishonoree is that innovator of inanity, that nabob of nonsense, that tycoon among twits, that supreme slinger of sanctimonious stupidity, Supreme Court Justice Antonin Scalia.

Speaking to the extreme right wing American Enterprise Institute recently, Scalia declared that some of the most contentious legal issues facing the country are in fact, "easy." To quote him:

The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.

Why is this so "easy" for him? Because he is what he calls a "textualist," meaning that he adheres, he says, to the "plain words" of the Constitution.

Um, okay, but what about issues like the death penalty, which you mentioned? The Eighth Amendment bans "cruel and unusual punishments" but does not define either term. How cruel is cruel enough to be banned? How rare or otherwise unusual does a punishment have to be to be "unusual?

That's easy, too, according to him. He applies the "plain words" of the Constitution as they were understood by the people who wrote and adopted them. That is, the social and legal standards of 1787 are to be applied to the society of 2012.

Is putting someone in a pillory and nailing their ears to the board cruel or unusual? Not according to Scalia: It was on the books in the US from the earliest colonial times into the 1800s. What about the whipping post, about public whippings? That was on the books in some Southern states until the 1960s. So is that okay with Scalia? Is that neither cruel nor unusual? Must be, according to him. What about the ducking stool? What about branding? They were in use at the time of the framing of the Constitution. So do they pass present-day Constitutional muster? Based on what Scalia has said, he must answer "yes."

Which means, of course, that he doesn't respect precedent. In 1958, the Supreme Court had decided in Trop v. Dulles that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society."

But society can't mature, according to Scalia. Oh, sure, you can change the laws to ban use of pillories and ducking stools and end branding and public whippings. But there is no legal standard, no base principle, that says that punishments which are offensive to "a maturing society" cannot be allowed to stand. Nope, if it was fine with the Constitution in 1787 it's gotta be fine with the Constitution today.

But in point of fact, there are several places where the Constitution is vague and apparently, deliberately so. Article 1, Section 8, which lays out the powers of Congress, ends by saying Congress has the power

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

That is, they knew there could be situations arising, and powers recognized as residing in the Constitution, beyond those specifically named. How does our current Bozo, Scalia, deal with that? The fact is, he can't.

What about the Ninth Amendment, part of the Bill of Rights? It says, in full,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

One of the arguments against the Bill of Rights was the concern that if there was a list of rights - and there were several versions around before the one that went to the states for ratification was settled on - the concern was that people would come to think they had only the rights listed and no others. The Ninth Amendment was included specifically to deal with that concern. The Founding Fathers, as we call them, were wise enough to realize that they didn't know everything, that they couldn't be sure that the full range of freedoms and rights was included and others might come to be recognized in the future.

So, to get to the second of Scalia's "easy" issues, is "regulating" abortion - which usually means "regulating to oblivion" in right wing parlance - is "regulating" abortion Constitutional because it would have been thought so in 1787? What, then, of the fact that our modern sense of a right to privacy - the very right on which legal access to abortion is built - is just that: modern? Our present notion of what constitutes "privacy" is vastly different from what it was in 1787. For Constitutional purposes, does "privacy" also have to mean what it did in 1787, not what it means today? Yes, according to Scalia.

This is insane. It is infantile. Even his history is bad: He claimed that "homosexual sodomy" was criminal in every state for 200 years. In fact, by 1987, which would be 200 years, 22 states had aleady repealed all their sodomy laws. By the time of Lawrence v. Texas, the 2003 case in which the Supreme Court struck down remaining laws against sodomy, 36 states had already done so. (Oh and parenthetically, I do notice that Scalia referred to "homosexual" sodomy, even though many of those laws applied to heterosexual couples and in some cases even married couples. I think his focus on "homosexual sodomy" tells us far more about Antonin Scalia's prejudices than it does about the Constitution or anything else.)

Here's another conundrm for this week's award winner: In his view, could an individual state censor newspapers published there? Could it ban free speech? Could it demand membership in a particular church as a requirement for voting or holding public office? We'd say no, of course not - but we can say that because of what's known as "incorporation," where it's held that the rights and privileges of citizens guaranteed under the federal Constitution apply to the states as well.

But Scalia would have to say no, that the Constitution provides no protection against oppression by the individual states, that states are free to deny freedom of speech, religion, and the press - because that certainly wasn't what the Founding Fathers were thinking and isn't even the "plain text" of the Constitution: The First Amendment says "Congress shall make no law," and so on. Not "there shall be no law," but Congress will not. No restrictions are set on the individual states.

And what of unreasonable searches and seizures, imposing "cruel and unusual" punishments, denying trial by jury? What of them? Are states free to engage in those? Scalia would have to say that yes, they should be.

The reason they can't, the reason the Constitution protects you on those and other grounds is due, again, to incorporation, which is based on the "due process" clause of the Fourteenth Amendment, which was adopted in 1868.

Before that, in 1833, the Supreme Court held that the Bill of Rights, in fact, applied only to the federal government, not the states. Even eight years after the ratification of the Fourteenth Amendment, in 1876, the Supreme Court ruled that the First and Second Amendments did not apply to state governments. In fact, it wasn't until the 1920s that most portions of the Bill of Rights were incorporated, that is, once more, to make them apply to the states as well as the federal government.

If Scalia is to be true to his principles - the word "principles" being very delicately applied here - but if he is to be true to what he has said, he would have to argue that all those precedents were wrongly decided and should be overturned because they don't fit either "the plain text" or what he personally decides was in the minds of the men of the Constitutional convention 225 years ago. The prejudices, biases, limitations, and inability to know the future which they had must set the limits on the recognition and protection of rights in on our lives today.

That sounds absurd, it is absurd - but it should also be noted that it is entirely in keeping with the way the minds of right wingers function. I've maintained for many years that the great attraction of right wing thinking is that it makes things, as Scalia says, "easy." When it comes to moral or ethical or in this case legal questions, you don't have to think things through. You don't have to work them out. It's all already been decided what's right, what's wrong, what's good, what's bad, what's moral, what's immoral. It's all be decided. You don't have to work it out, you just have to memorize what someone in the past told you. You don't have to take account of changes in society because society is not allowed to change.

The Constitution is a means of organizing the structure and functions of the federal government. It is not a sacred document. It is not of divine origin. If that's what Scalia wanted, then as the blogger Digby said, he should have been a priest. As just as it is not sacred, it is not a block of granite, a stele with text frozen in place and time. To say that it is, to say that it is not allowed to be understood in the light of the "evolving standard of decency," in the light of the "progress," found in a "maturing society," is one of the most clownish things I can imagine.

Antonin Scalia. Is. A. Clown.

Sources:
http://www.boston.com/news/nation/washington/2012/10/05/scalia-says-abortion-gay-rights-are-easy-cases/IW1zVZ6ejHnQn4CcwyicAP/story.html
http://www.1911encyclopedia.org/Pillory
https://en.wikipedia.org/wiki/Cropping_%28punishment%29
http://digbysblog.blogspot.co.uk/2012/10/justice-scalia-thinks-its-absolutely.html
http://www.deathpenaltyinfo.org/part-i-history-death-penalty#intro
http://billofrights.org/
http://www.earlyamerica.com/earlyamerica/freedom/constitution/text.html
https://en.wikipedia.org/wiki/Sodomy_laws_in_the_United_States
https://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29
https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution