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April 19,
2003
Off With Their
Heads!
The
Constitution According to Scalia
by
MICHAEL J. FELLOWS
Imagine it: this summer, or next, Antonin Scalia
may come before the Senate to be confirmed as the next Chief
Justice. (Frightening, thought, isn't it?) When and if that happens,
the Senators will all have an opportunity to ask him questions
about his positions on various issues that may come before the
Court. They will likely start by asking him the same kinds of
questions they asked him in 1986 when he was first confirmed
as an Associate Justice. (1)
Senator Kennedy: "Judge Scalia,
if you were confirmed, do you expect to overturn the Roe v Wade?"
Scalia (Looking, one imagines, stunned
at the temerity of the question): "Excuse me?"
Kennedy: "Do you expect to overturn
the Roe v Wade Supreme Court decision if you are confirmed?"
Scalia: "Senator, I do not think
it would be proper for me to answer that question."
Former Senator, former Chairman of the
Senate Judiciary Committee, and former segregationist, Strom
Thurmond: "I agree with you. I do not think it is proper
to ask any question that he has to act on or may have to act
on."
What about affirmative action, Judge?
"Senator, I really do not think I should give my view."
Well, do you think death row inmates
get too many post-trial appeals? "I should not have a view
about it." Do you agree with the Court's current reading
of the equal protection clause? "I do not think I should
be in the position of saying whether I agree or disagree with
the Supreme Court."
Um, what about Miranda warnings? "assuming
the question is not, you know what do I think as to the extent
to which those warnings, in one circumstance or another, are
required by the Constitution."
The tactic is for the nominee to avoid
answering any question about what he or she might actually think
is, you know, required by the Constitution. Of course, the purpose
of having a candidate come before the Senate in the first place
is precisely so that the Senate may determine how the potential
justice will determine whether and to what extent something is
required by the Constitution. The purpose of confirmation is
to determine a candidate's fitness for the highest bench in America.
Conservatives would like fitness to mean "he knows the law,"
as if the law were some immovable, unchangeable monolith. They
argue that questions regarding matters that might come before
the court are inappropriate because judges are supposed to be
neutral. Judges are supposed to have no opinions-as if judges,
newly faced with a question of constitutional significance, will
look at the matter with no preconceived notions, no political
feeling, no background of experience or insight. The perfect
judge, in this view, is a computer. Type in the numbers, apply
the correct legal equation, and out comes the correct, and only
correct, answer.
The problem with this view is that this
is not how the law works. There is rarely one correct answer
to any legal question. In fact the right answer to any legal
question, as every first year law student quickly learns, is
"it depends." It depends on the facts at hand. It depends
upon which law (state, federal or local; common law or statutory)
is applied, upon which court you find yourself in; and most of
all, it depends on who the judge is. In the end the judge has
enormous discretion in deciding any case, and the law is almost
always flexible enough to allow him to answer any question in
more than one way. And in the end judges, like everyone else,
are inclined to decide disputed questions based on their ideology.
Thus, Antonin Scalia can find against civil rights claimants
70% of the time, while Justices Marshall and Brennan tended to
find for these same claimants in nearly 90% of the cases brought
before them. Ideology is central to how a judge works. This is
why conservative nominees avoid answering questions likely to
expose their ideology.
The avoidance tactic was successfully
used by Scalia and his Republican supporters on the Committee
in 1986 to keep him from answering any meaningful questions about
his views of the Constitution. Now all of us have to live with
the failure of the Senators to delve, and with Scalia's failure
to be candid. This is why it is so important for Democratic Senators
to keep up the pressure on Bush nominees-to prevent those nominees
from hiding their ideological preferences in the name of a non-existent
neutrality.
An imaginative Senator (if hat is not
an oxymoron) it seems to me, could find ways around this kind
of stonewalling. For the less imaginative Senators I offer this
suggestion: ask Scalia, and any other Bush nominees that may
come up, questions they won't be expecting, questions which,
while they go to the heart of the Constitution, are not part
of the current series of "litmus test" answers conservative
candidates think they shouldn't be forced to give. In my imaginary
confirmation hearing, one bright Senator would ask this question:
"Justice Scalia, in your view, does
the Constitution prohibit the execution of innocent persons?"
Most Americans, I hope and believe, would
expect a potential Supreme Court justice to answer the question-whether
the Constitution says the government may not subject an innocent
person to execution-with a simple, uncompromising "Yes."
"Yes. The Constitution absolutely prohibits the execution
of innocent persons."
Most Americans would expect this answer
because most Americans believe, as they should, that the Constitution,
if it does nothing else, protects all citizens from the most
egregious forms of governmental injustice and oppression. If
they remember any part of the Constitution at all, average Americans
are likely to remember the preamble, with its declarations of
Justice, Tranquility, and Liberty, and its open support for the
greater good of all Americans.
That is not the Constitution Antonin
Scalia reads. And the answer Antonin Scalia would have to give
to the question-Does the Constitution prohibit the execution
of innocent persons?-is a simple, uncompromising "No."
Scalia's answer can be found in his decisions and extra-judicial
statements about rights, punishment and the Constitution.
The first thing to know about Scalia
is that he is an originalist. An originalist is one who reads
the Constitution to mean only what it meant when it was written.
Recently, Scalia has said "the Constitution that I interpret
and apply is not living but dead," which brings to mind
the startling image of Scalia as pathologist, picking over the
corpse of our Constitution, searching it for clues as to what
its demise might mean for the rest of us. Scalia and other conservatives
have said that this Constitutional view is the best because it
limits the judge in his reading and thus prevents him from engaging
in "judicial activism." Judicial activism is bad, according
to this view, because it is undemocratic; it is the judge "making"
law from the bench. Scalia rejects any notion of the "evolving
standards of decency," a phrase at the core of modern death
penalty jurisprudence, because to apply a modern judge's notion
of decency is to impose that sense of decency on the rest of
the population. If the population had such a sense of decency,
they would, through the legislature, pass a law that said the
death penalty should be applied only when it doesn't offend "our
evolving sense of decency." That we as a society have not
passed such a law means that we don't have such a standard of
decency, and the judge has no business imposing his standard
of decency on us, even if it for our own good.
This constitutional view would, by definition, have precluded
the decision in Brown v Board of Education outlawing segregation-which
is and of itself reason enough to reject this constitutional
view. But there are other, more current reasons for rejecting
originalism as a theory, and for denying Scalia and his ilk the
opportunity to impose their view of the Constitution on the rest
of us.
When it comes to capital punishment,
the most essential part of the Constitution is the 8th Amendment,
which reads, in its entirety, "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." When the Supreme Court examines
this language it has to decide what "cruel and unusual punishment"
means. In the 1970's the court had adopted an approach which
understood cruel and unusual by measuring it against (in a phrase
we have already seen) society's "evolving standards of decency."
That is, any method of punishment current society finds abhorrent
would be inherently unconstitutional because it would be, by
definition, cruel and unusual. This is what is meant by a living
constitution-one that grows and evolves with the society it defines.
This is the Constitution Scalia rejects.
In his confirmation hearings in 1986, Scalia discussed the 8th
Amendment as it would be understood by an originalist. "The
cruel and unusual punishment clause would mean precisely the
same thing today that it meant in 1789." In 1986, Scalia
was as yet a hesitant originalist. He told the Senators that
he wasn't sure if he agreed with the originalist view, because
it would have to mean that "if lashing was fine then, lashing
would be fine now." Even Antonin Scalia was not ready to
get up before the United States Senate and tell them that while
lashing was certainly distasteful it was not unconstitutional.
"I have always had trouble with lashing, Senator. I have
always had trouble thinking that is constitutional."
That was then. Since then one thing has
changed. Scalia is no longer bucking for a job. He's got lifetime
tenure on the highest court in the land. Now lashing is just
fine. As is the death penalty. And not just for murder. Now apparently
he wouldn't have a problem with using it "for all felonies."
Just so long as a punishment is passed by a legislature, it will
pass muster with Scalia.
There are a few things the Cruel and
Unusual punishments clause would preclude in the Constitution
according to Antonin Scalia. According to Scalia these punishments
are what he calls "always and everywhere 'cruel' punishments,
such as the rack and the thumbscrew." (2) I'm sure we all
find that comforting. Of course, Scalia wrote this in a decision
in which he said-in dissent, thankfully-that it is perfectly
all right to execute retarded people (down to an I.Q. of about
25). In another decision (this time not in dissent) Scalia said
that the Constitution has nothing to say about executing children
down to at least the age of 14 and, "theoretically"
anyway, executing "anyone over the age of 7." (3)
Perhaps the most frightening thing about
this last decision is that it came just a year after the Court
had pronounced it a violation of the cruel and unusual punishments
clause to execute a boy who was 15 at the time he committed the
crime he was sentenced to die for. (4) What changed in that year?
First, Kennedy came on board, thereby strengthening the right-wing
of the Court. Second, O'Connor, who the year before had blinked
at frying fifteen year-olds, had no such qualms about executing
16 or 17 year olds. The suddenness of the change shows just how
vulnerable the Constitution is to the political process and to
the ideology the conservatives pretend doesn't exist-one vote,
one new member, and last year's low point is now high above the
water line. With the Supreme Court it is important to remember
that no matter how bad things are, they can always get worse.
So, in the Constitution according to
Antonin Scalia, we can execute the retarded and children down
to the age of 14 (and "theoretically" down to the age
of 7). We can execute people for almost any felony, because that
is what the founders did. The only thing prohibited by the Cruel
and Unusual Punishments clause are what Scalia calls "modes"
of punishment-flaying someone alive, for example, or "rendering
them asunder with horses" and that sort of thing. I feel
better knowing that Antonin Scalia would protect my right not
to be rendered asunder. But he only has a problem with that sort
of punishment because at the time of the adoption of the Constitution,
these things were "wholly alien to the spirit of our humane
general constitution" (this is Scalia quoting another writer-he
himself often mocks the notion that the Constitution is 'humane').
(5) Scalia acknowledges that the Cruel and Unusual Punishments
clause was inserted into the Constitution as a reflection of
"the improved spirit of the age." (6)
Apparently once the founders put the
clause into the Constitution the possibility of improvement stopped.
According to Scalia, an unprincipled, even an evil, Constitution
is perfectly acceptable because, after all, the Constitution
allowed for slavery. Why then should we believe the Constitution
reflects our highest ideals? Who are we to think we know evil
when we see it better than did the founders? If slavery and lashing
and executing seven year-olds was all right by them, it must
be all right by us, and there's absolutely nothing we (the Court)
can do about it.
Occasionally I find myself thinking that
Antonin Scalia is simply nuts. I begin to think this way when
I read opinions like the concurrence he wrote in a case called
Herrera v Collins. (7) In Herrera, Justice Scalia said that even
if a person had obtained evidence after trial which showed that
he was actually innocent of the crime for which he had been convicted,
he could still be legally put to death by the state. Wow. You
don't believe me? Here then, in his own words, is the Honorable
Justice Antonin Scalia: "There is no basis in text, tradition,
or even contemporary practice for finding in the Constitution
a right to demand judicial consideration of newly discovered
evidence of innocence brought forward after conviction."
Allow me to translate-if evidence of your innocence is found
after you've been convicted, you have no right to have that evidence
brought to the attention of a court. Wait, there's more: "I
can understand, or at least am accustomed to, the reluctance
of the present Court to admit publicly that Our Perfect Constitution
lets stand any injustice, much less the execution of an innocent
man who has received, though to no avail, all the process that
our society has traditionally deemed adequate." Here Scalia
means to say that once you've had your shot in court, you're
done, whether or not justice has been served, or whether you
are actually guilty or not. And finally, "If the system
shocks the dissenter's conscience [i.e., the consciences of
those Justices who think the Constitution should not and does
not allow for the legal execution of an innocent person] perhaps
they should doubt the calibration of their consciences."
Translation: if you don't like this system, then you are too
squeamish. Get over it.
And here I thought the Constitution was here to protect my civil
rights; I thought that not being murdered by the state for no
reason at all was one of my protected rights. How naïve
I was. Not only is the Constitution perfectly consonant with
manifest evil-I think we can all agree that killing innocent
people is evil-but if you have a problem with that then there
is something wrong with your conscience.
To give the devil his due (as they say),
Scalia says that he thinks it would be improbable if a case "of
[actual] innocence would fail to produce an executive pardon."
He might be right. The innocent death row inmate might be lucky
enough to have a George Ryan in the governor's chair of his state.
Then again, he might be unlucky enough to have a George W. Bush.
The point, though, is that an innocent person should not have
to count on good luck or the good will of a governor to decide
his fate. The innocent person, or so I once believed, is protected
by the rights enumerated in the Constitution, and the judicial
procedures put in place to protect these rights. The Constitution
according to Antonin Scalia may contain such protected rights,
but not being executed despite having committed no crime, and
despite being able to show that one has committed no crime, does
not appear to be one of them.
What happens when the Senate fails to
delve into the ideology of a potential Supreme Court justice
is that the ideological background the judge uses to interpret
the Constitution goes unrevealed. In this case, a little delving
might have revealed that Scalia has little regard for any baseline
'substantive' rights-rights which can never be violated, no matter
how elaborate and protective the process given to protect them
may be. Scalia is content with 'procedural due process'-he believes
that if you've had your fair trial and everything attendant upon
it, the Constitution does not demand that you get more, no matter
what facts may later turn up.
Those of us who believe in substantive
rights view the Constitution as a floor below which the government
may not go. For Scalia and other right-wing conservatives, the
Constitution is a ceiling above which the government has no responsibility
to go, no matter how awful the outcome. These two Constitutions
are enormously different, and result in significantly different
outcomes for real people in real courts attempting to vindicate
real rights.
Imagine another Antonin Scalia on the
Court. Imagine a bench full of Scalias. Then let us hope that
the Democrats in the Senate will continue to show the backbone
they've recently discovered in the area of judicial nominees.
Let's hope they ask tough, smart questions, and that they don't
let dissemblers and avoiders off the hook. Let's hope they keep
another Scalia from making his way onto the bench. In a very
real sense, the lives of innocent men and women may depend upon
it.
Michael J. Fellows lives in Northampton, MA. Fellows is an editor
at the Western New England Law Review and is working on a book
about Scalia's views of the constitution. He can be reached at:
mfellows@wnec.edu
1/ For the following quotes see: Volume
13 of The Supreme Court of the United States: Hearings and Reports
on Successful and Unsuccessful Nominations of Supreme Court Justices
by the Senate Judiciary Committee, 1916-1986. Roy M. Mersky &
J. Myron Jacobstein, eds. William S. Hein & Co. 1989.
2/ "God's Justice and Ours,"
First Things 123 (May 2002); 17-21.
3/ Stanford v Kentucky, 492 U.S. 361
(1989)
4/ Thompson v Oklahoma, 487 U.S. 815
(1988)
5/ Harmelin v Michigan, 501 U.S.957
(1991)
6/ citing J. Bayard, A brief Exposition
on the Constitution of the United States 154 (2d ed. 1840)
7/506 U.S. 390 (1993)
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