Tuesday, April 14, 2009



Justice Antonin Scalia fancies himself an “originalist.” In other words, he interprets the United States Constitution as men understood it at the time it was written, whether in 1787 or at the time each Amendment was ratified. In essence, Scalia fossilizes his interpretive craft. In case after case, he praises the “Framers” for their wisdom. Even if he disagrees with some archaic provisions in the text, he implicitly praises the “Framers” by refusing to take a principled stand against outdated values. Scalia—along with his adherents Justice Thomas, Justice Alito and to some measure, Chief Justice Roberts—basically fetishizes this Nation’s Founding Era. They look the to “Framers” as the source of all wisdom and constitutional truth, imputing to them foresight, strength and eternal relevance to modern-day affairs. In so doing, they fetishize men whose values would shock us today. These “jurists” are caught in a “value time warp.” Rather than engage in meaningful dialogue concerning contemporary social questions and their relationship to constitutional order, these backward-looking “scholars” fix their gaze on 1787.

What is so special about men who lived in 1787? Were George Washington, Thomas Jefferson and James Madison really smarter, more noble and more clairvoyant than people living today? It is quite difficult to say. Yet so much mythology surrounds these men that it is nearly impossible to fault them for anything. But if we dare to slice through myth and look hard at values, we might not like the image we see. I do not deny that the United States Constitution embodies many great principles. It was revolutionary for its day; it replaced a living sovereign with a paper one. Nonetheless, it contained monumental flaws, too. And it tacitly underscored values that would horrify an average man today.

But Justice Scalia and his minions are hypnotized. They mindlessly accept most founding values without a second thought. They constantly “look to the Framers” for guidance. While the “Framers” may help us understand how to read 18th Century English, they should not instruct 21st Century Americans how to understand their own values. Justice Scalia has publicly said that people misunderstand his originalism. He says he “believes in Democracy,” and that his own values have “nothing to do with constitutional interpretation.” Rather, he says, the Constitution provides an overall structure for government, and if the people have not spoken on an issue, then the Constitution controls as it was originally written. Quite simply, the people have not spoken on many issues; it is purposely difficult to amend the Constitution. See U.S. Const. Art. V. This leaves plenty of room for interpretation on murky questions. On these questions, according to Justice Scalia’s formulation, “the original text” should control—along with all its colonial-era values.

Why is this troublesome? What is wrong with “colonial-era values?” In popular understanding, Americans romanticize colonial-era values in much the same way they romanticize the “Framers.” When Americans think about the colonial era, they think about “freedom,” the “Boston Tea Party,” “patriotism,” “The Declaration of Independence,” “self-determination,” “ambition,” “liberty,” and the “pursuit of happiness.” True, these values motivated men in colonial era. But men at this time had values we would prefer to forget, too. They executed virtually everyone for any crime, no matter how minor. They enslaved Africans and butchered Native Americans. These were perfectly legitimate values at the time. They existed alongside the quest for “freedom of the press,” and “representative government.” This is not to say that the “Framers” were bad. It is merely to say that they had very different values than Americans have today. In fact, there is no way to compare life in the 18th Century to life today. Even the English language was different. English speakers used “f” to mean “s;” they spelled words differently. A “hanger” meant a “sword” and a “strand” meant a “beach.” Is it any surprise that our “jurists” on the Supreme Court have difficulty divining meaning in a text written in this antiquated English? Whom can they really consult to understand it? Every generation uses language differently. With each passing generation, it becomes increasingly difficult to decipher the words of earlier ones. Try reading Shakespeare and you get the point. Yet in constitutional interpretation, the stakes are higher than in paraphrasing Macbeth. In short, it is hard enough to understand constitutional language. And mimicking 18th Century values underlying that language is a fool’s quest.

All this makes little sense without an example. I say that four members of our Supreme Court are caught in a “value time warp” that fetishizes 18th Century ideals. Consider Baze v. Rees (2008), the case in which Chief Justice Roberts, for a Court majority, concluded that Kentucky’s lethal injection execution “protocol” did not amount to “cruel and unusual punishment” under the Eighth Amendment (“…nor cruel and unusual punishments inflicted.”). Under that “protocol,” the State administers three drugs: one tranquilizes the prisoner, the second paralyzes his muscles and the third stops his heart. The prisoner argued that the first drug sometimes does not fully tranquilize the condemned, then the second drug causes excruciating pain. But no one notices the prisoner’s plight because it paralyzes all his muscles, making it impossible for him to speak or even move his eyelids. The Court rejected this evidence, concluding that the “chance” of an insufficient first dose did not render the entire procedure “unnecessarily cruel.” For its part, the Court said that punishments are “cruel” if they are “intended to result in unnecessary pain,” “involve torture or a lingering death,” or are otherwise “inhuman and barbarous.” If an execution method, viewed in the abstract, is not “sure or very likely” to result in “needless suffering,” then it is not “cruel,” even if safer alternatives may be imagined.

In essence, then, punishments will never violate the Eighth Amendment if they are not calculated to inflict “needless pain” on the prisoner. The focus lies upon the execution method in the abstract. The question is not application; the question is intention: Does the State want to inflict “torture or a lingering death” on the prisoner? If the answer is “no” to the “intent” question, the execution method will survive constitutional scrutiny.

In crafting its “analysis” in this case, the Supreme Court looked to the “Framers.” What did they understand to mean “cruel and unusual punishment?” Chief Justice Roberts was unwilling to use his own conscience to define the word “cruel,” even in the face of evidence that numerous prisoners had suffered unnecessarily before dying at the State’s hands. No, it did not matter what the Chief Justice thought “cruel” meant in 2008; it mattered what the “Framers” thought “cruel” meant in 1791. Justices Scalia, Thomas and Alito happily concurred in the Chief’s allegiance to 18th Century ideals. Justice Thomas pointed out that the Court had never struck down any challenged execution method, including hanging, the firing squad and the electric chair. Each of those methods was “intended” to bring about the “mere extinguishment of life,” and according to 18th Century thought on that question, that “intent” was enough to remove it from constitutional scrutiny. In the 18th Century, “cruel” punishments were intended to inflict “slow, agonizing” torture on the prisoner, “superadding” terror to inevitable death. Baze v. Rees (2008), Slip. Op. at p. 68 (Thomas, J., concurring in the judgment), quoting Blackstone’s Commentaries on the Laws of England (1769). Only “hanging drawing and quartering” (i.e., live castration and disembowelment, then beheading and mutilation) would have violated this definition. Anything else would have passed the “cruel” test under “18th Century values.” Hanging? No problem—it is “intended to cause only death.” Burning? No problem—it is “intended to cause only death.” Firing squad? No problem—it is “intended to cause only death.” Electrocution? Certainly no problem—it is “intended to cause only death,” even if it does not kill you on the first zap. Under this analysis, the question is not the application; it is the method alone.

“Cruel” meant something entirely different to the “Framers” than it should mean to a 21st Century citizen. Frankly, I find it indefensible to categorically stand behind 18th Century values on this issue. No matter how much we extol our colonial forebears, we should look a little more closely into history before adopting their values wholesale. Put simply, we would likely recoil when we hear what passed for “normal” in colonial America. I found a passage this morning in an old history book (Historic Mansions and Highways Around Boston at pp. 169-170 (Samuel Adams Drake 1899)) that encapsulates everything wrong with 18th Century values. According to the book, in 1749, three “negro house servants” allegedly poisoned their master, Captain John Codman, “a respectable citizen and active military officer.” To conceal the crime, they allegedly set fire to his house, attracting suspicion and leading to their arrests. One servant testified against the other two. One was burned alive. The other was hanged, then put on public display—or “gibbeted”—“on the northerly side of Cambridge Road, now Washington Street, a little west and very near the stone quarry now there.” Id. The man’s rotting corpse was allowed to publicly decompose until “just before the Revolution” in 1775—26 years.

Was this “cruel” in 18th Century America? Apparently, no one in Boston really cared that the State burned one black man and hanged another in a tree for 26 years. Perhaps such penalties would have aroused some outcry if practiced upon white colonists. But should that matter? What does it say about 18th Century values if citizens—in the North, no less—did not speak out in disgust against such savage governmental conduct? We gain insights here into what passed for “normal” in the 18th Century. We begin to see how people really “thought” about issues at the time. In this example, we see two things. First, we see a value system that universally treated Africans as an inferior race. The fact that the law dealt so harshly with African “criminals” reveals that contemporary values judged their crime a “revolt against the natural order,” namely “service to their white masters.” Second, we see a value system that did not wink at brutal punishments. In 18th Century America, the State readily meted out death. It burned people. It clapped dead bodies in chains and displayed them for decades. Put simply, we see a value system that viewed race and death in a completely different light than ours does.

Should we so valiantly defend these values, then? It is easy to selectively glean values from our “founding Fathers” without remembering how very different they were. It is even easier to simply say that the “Framers knew best” and now deserve special intellectual indulgences because “they wrote the Constitution.” I venture that this is both foolish and dangerous. We should be skeptical of “18th Century values” because they have a very troubling “dark side.” They include far more than the “good stuff” we learn about in 8th Grade American history classes. And we should never elevate them to guiding principles on matters of broad contemporary importance, such as the death penalty or race. It is no answer to say: “Until the Constitution is changed, I will continue to apply the words as people understood them at the time.” In my view, it does not require much courage to refuse to follow values that condoned burning black men without a trial and public displaying their corpses for 26 years. In fact, I find it perverse to defend a value system that tolerated such atrocities. Yet this is precisely what the “originalists” do. In perpetuating their categorical love affair with colonial values, they put themselves in a regressive—and absurd—intellectual position.

To be blunt, we cannot go back to 1787. If the “originalists” really understood how people acted in those days, I doubt they would want to, either, especially Justice Thomas. We can look to history for clarifications from time to time. But we should never simply blindly imitate ancient values when resolving contemporary problems.

1 comment:

SteveW said...

All though I think it's a small slice of nonsense, I actually like the "originalist" concept. At the very least, it would be open and predictable, and where the results were truly undesirable we can merely amend and move the originalist line to a new position.

My main problem with originalist thinking is that, as it is used, Scalia, Thomas, et al will set it aside whenever convenient and find some reason to do something new whenever that fits their current thinking.

Conversely, the so called living document folks will find a reason to reach into precedent and tradition whenever that suits them as well. While either position is relatively easy to attack - you make a nice attack on originalists, and an attack of similar strength can be launched on the living document tradition - the difficulty is that these are just the selected labels and not a particularly good match for the actual legal/rhetorical engines utilized by these justices.