JUSTICE THOMAS ON TROY DAVIS : "WHEN IT COMES TO EXECUTIONS, I DON'T GIVE A BROTHER A CHANCE"

WISDOM FROM OUR LEARNED SUPREME COURT JUSTICES

By : Mr. Clarence Thomas, Associate Justice, United States Supreme Court (1991-present) (appointed by President George H.W. Bush; confirmed by the United States Senate 51-48); Chairman, Equal Employment Opportunity Commission (1982-1990); J.D., Yale Law School (1974); Affirmative Action Beneficiary; Affirmative Action Opponent; Republican; Champion, Supreme Court Building Cafeteria Cheeseburger n’ Fries Eating Competition (1998, 2003, 2005)(Runner-Up to Sandra Day O’Connor (1999); Runner-Up to William H. Rehnquist (2004)); Member, The Federalist Society; Republican.

Early this week, my colleagues issued an extraordinary order granting Troy Davis—a Georgia death row inmate—an opportunity to challenge his conviction for a murder that happened 20 years ago. Three courts have already reviewed his conviction. A Georgia jury found him guilty in 1991. Georgia wants to just get the show on the road and put him to death. My good friend Justice Scalia dissented from this madness and I joined him. He basically said that the law requires some finality in death penalty cases. He said the law does not permit us to free convicted killers because we think they are “actually innocent.” And he said that the Constitution allows States to execute people even if they are “actually innocent.” After all, if you’re guilty “in law,” it doesn’t matter if you’re not guilty “in reality.” Here at the Supreme Court, we only care about the law, not reality.

I joined Justice Scalia’s well-reasoned dissent. But I have a right to add my own thoughts about this case. All too often, Justice Scalia gets to say all the fun stuff and I just silently sign on. This time I want to say a few things myself because I care deeply about this issue. This is a case about black men on death row. I just want to say for the record: I don’t give a brother a break. If a brother wind up on death row, shee-yit, he ain’t gonna get no love from old Uncle Thomas. That be what it is.

Justice Scalia did a fine job explaining what the law says about so-called “postconviction relief.” But Justice Scalia can be a little technical. I like simpler language, even if it involves the law. So today I’m going to explain what Justice Scalia meant in laymen’s terms. I’m also going to talk about why I don’t give a brother a break. Bottom line: When States want to execute black men, they can count on my full support. After all, the law says that States can execute convicted black men. The law says that black men can only appeal their convictions under certain circumstances. If they don’t follow the procedures—or the appeals court affirms the conviction—that’s it: Dead playa walking. I respect the law in this area. And the law says we need finality after juries speak, innocence or not. Not just that, I’m a Federalist. States have a right to execute black murderers. As a Federal judge, who am I to stand in their way?

Let’s start with the Constitution. Let’s get rid of the argument that the death penalty is unconstitutional. Like Justice Scalia, I believe the text provides the answers here. We just need to look it up. First, the Constitution doesn’t use the words “death penalty,” “execution,” “innocent” or “actually innocent.” All it says is: “..nor shall any State deprive any person of life…without due process of law…” (U.S. Const. Amd. XIV, § 1). Well, if it says the State has to give “due process of law” before “depriving life,” that necessarily implies the State can deprive life. There wouldn’t be a rule qualifying how the State deprives life it couldn’t deprive life in the first place. So the text says States can execute people. That’s enough for me.

American tradition allows executions, too. Justice Scalia always likes writing about colonial history and 17th Century England to make sense of what the Constitution says. I like it, too. I basically just follow his lead. He is right that States used to execute people in 1787. In fact, they executed lots of people, even for stealing and adultery. They just hanged them from a sour apple tree and buried them in the pasture. They even burned and whipped slaves to death. But back in those days, killing a slave wasn’t even capital punishment, because slaves weren’t people by law. You can only execute a person. Life sure was easier back then.

Of course, liberals like to say that capital punishment is “cruel and unusual” under the Eighth Amendment. Well, we resolved that argument in Gregg v. Georgia, 428 U.S. 153 (1977). Call me old fashioned, but I’m all about precedent. When we decide a case, we need to stick by the result. In that case, we said that the death penalty was not “cruel and unusual;” so out goes that argument. Who am I to contradict the Court? We need to follow what we said in the past, and in 1977 we said that capital punishment is not “cruel and unusual.” That’s enough for me to throw out any liberal contention to the contrary. Precedent is precedent.

Being a Supreme Court justice is not as hard as you think. You just look at the text, listen to Justice Scalia’s lectures about American tradition and check to see if the Court has already said something about the issue in the past. If it has—and you agree with the result—you follow it. If it hasn’t, you do whatever you want. In some tougher cases, the Court says something in the past and you don’t agree with it, like in Roe v. Wade, 410 U.S. 113 (1973). In those cases, you need to overrule the law. But that’s not the case here.

This case involves a Federal law called the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Although Justice Scalia discusses the statute at length in his dissent, I want to discuss it in simpler terms. Basically, AEDPA makes it tough for convicted black murderers to throw out their convictions. Congress enacted the law because black guys were gumming up the system by filing hundreds of Federal petitions asking for “writs of habeas corpus.” For those who don’t know, “writs of habeas corpus” allow black guys to challenge their State convictions in Federal court (don’t ask me anything else, like what it means in Latin, because I don’t know; ask Justice Scalia about that). This took up way too much time. I’m talking decades; executioners got out of practice. Some black dude might have committed murder in 1978, yet the State wouldn’t get around to strapping him down to the lethal injection table until 2007. I echo Judge Joe Brown when I say: “Justice delayed is justice denied.”

Thankfully, the AEDPA cut down on these delaying tactics. Now, black guys get one shot at habeas corpus. And Federal courts can’t overturn a State conviction unless it rests upon a “clear violation of constitutional law as construed by the Supreme Court.”

Basically, AEDPA says: “Screw you” to all black guys who think they can land a “Get out of Jail Free Card” from some Clinton appointee in Federal court. And there is nothing wrong with that. After all, the law is the law. Who am I to question the law?

But this is where Troy Davis comes in. Troy Davis is a convicted black man. He appealed all the way through the Georgia State courts, then applied for habeas corpus in the Federal courts. He lost every time. In every case, the appeals courts said that the “evidence was sufficient” to sustain his conviction. Under AEDPA, he had his one shot at habeas. He lost. Now, he’s trying to appeal directly to the Supreme Court. After losing three times, his lawyers dredged up some new evidence. They say that all the witnesses who said he killed the security guard perjured themselves. These witnesses have even sworn out affidavits recanting everything they said about Davis; they all say the accomplice killed the guard, not him. In other words, Davis is trying to say that he is “actually innocent,” and that it would be unconstitutional for Georgia to execute an “actually innocent man.”

No it wouldn’t. Like I said before, the Constitution doesn’t say anything about “innocence” and “execution.” Rather, the law requires us to allow Georgia to carry out the execution as scheduled. This is not about innocence. This is about law and procedure. Procedure says that black guys get only one shot at habeas under AEDPA. Davis got it. Our court rules say that black guys can appeal directly to the Supreme Court only in “exceptional circumstances.” U.S. Supreme Court R. 20.4(a). Yet these are not “exceptional circumstances.” Davis is not the only black murderer who says “he’s innocent.” I don’t care whether all the witnesses recanted their testimony. This is not a new argument. AEDPA bars federal courts from rehearing any argument that has already been made. Davis is just repeating himself, no matter what affidavits he’s shuffling. Procedure says Davis is done. Who am I to question procedure?

I fully join Justice Scalia’s remark: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually innocent.’ Any claim based on ‘actual innocence’ is not constitutionally cognizable.” In re Davis, 557 U.S.___ (2009)(slip op. at p. 2). Let’s be honest here. Troy Davis had a full and fair trial. It does not matter that all the witnesses recanted their testimony and that police investigators admitted they coerced people to accuse Davis. Georgia paid for the trial; are we going to make Georgia pay for another one? Nor does it matter that Davis’ attorney bordered on ineffectiveness. Davis had a fair trial. The jury found him guilty. By law, that verdict subjected him to Georgia’s criminal code. Georgia’s criminal code prescribes the death penalty for murder. The jury imposed that sentence. The State afforded Davis all the procedures it could possibly give him. Not only that, Davis took his innocence claim all the way through both Georgia’s court system and the Federal courts, despite the AEDPA’s prohibition.

Put simply, Davis has had too many chances. The State has paid exorbitant sums defending against Davis’ frivolous arguments. He has exhausted all his legal remedies. It’s time to let Georgia inject this guy with some potassium bromide. This is what the law requires. I follow the law.

I also join Justice Scalia’s observation that Davis’ case represents a “capital conviction in full compliance with law.” In re Davis, 557 U.S. __(2009)(slip op. at p. 5). Here on the Supreme Court, we look no further than the law, provided we agree with it. In this case, the law is the AEDPA. The AEDPA prescribes procedures intended to stop black guys from gaming the criminal justice system with frivolous “innocence claims” decades after they shoot police officers. Additionally, the AEDPA preserves the State’s interest in quickly executing black criminals, as well as protecting the finality of jury verdicts. Remember, we’re talking about law. Under law, we must believe the jury. Juries decide facts, not judges. In this case, the jury said that Davis killed the security guard. Who are we to question a jury, even if we later learn that the jury heard perjured testimony? We need to put our foot down on appeals like this. Every black guy on the planet is going to say “it wasn’t me.” Does this mean we have to grant a new trial every time?

I can tell you this: “Not on this negro’s watch.” From where I’m standing, juries are always right, especially when they sentence black guys to death. I’m not going to contradict a jury, nor am I going to stop a southern State from executing a black man. Federalism says that States have a right to execute black men in their own borders according to local law. There’s nothing unconstitutional about that. States have rights, too, not just black murderers. The Constitution gives you the right to fair trial, not the right to escape execution for “innocence.” Like I said, the Constitution doesn’t use the words “innocent” or “execution.”

I need to say a few more things about “innocence.” All these liberals are up in arms about Justice Scalia’s remark that the Constitution does not prevent the State from executing “actually innocent” black guys. They say it shocks the conscience to allow States to execute people who may be “guilty in law” but are “actually innocent in fact.”

I disagree. On the Supreme Court, we deal with the law, not with facts. From where we sit, there is no truth beyond what the law prescribes. I don’t care if a convicted defendant totally undermines the basis upon which the jury found him guilty. In law, we must trust the jury. We need some finality in our system. As judges, we cannot philosophize about “truth” and “facts.” And we don’t need to: Who needs “truth” when you have law? Law provides all the answers, even if they are fictional. We don’t listen to conscience. We listen to law. Conscience is uncertain; law is crystal clear. In Troy Davis’ case, the law clearly dictates that he “had his chance.” It does not matter what “actually happened.” If we had to weigh the “truth” in every death penalty case, States would never get to lethally inject, shoot, hang, electrocute or gas anybody, black, Hispanic or Cherokee. As judges in a Federal system, we cannot tolerate that result. We must follow the law, not the truth.

Truth is for philosophers. Law is for administrators. We are just trying to settle on some orderly administration here. That’s all Justice Scalia was trying to say. I agree with him. I’d also like to add one personal comment about Troy Davis’ “actual innocence” argument: “Playa, pleeze.”

Now would you please excuse me? I have more important things to do. It’s lunch time and there’s a cheeseburger n’ fries competition today. If I don’t practice now, I might lose to Justice Alito.

GEARING UP FOR TROY DAVIS

Today I'm taking a break from posting so I can study the Troy Davis case. Earlier this week, the United States Supreme Court issued an "extraordinary" order directing a lower Federal court to review a convicted death row inmate's claim that he is "actually innocent." To untrained ears, it may sound strange to call such an order "extraordinary." After all, if the man is innocent, it is hardly "extraordinary" to save him from execution. But we're talking about law here, not humanity or even common sense. Once written, positive law muddles a question; even the most ordinary, obvious things suddenly become "extraordinary" and "unprecedented." Justice, as ever, has nothing to do with it. You learn how to forget justice in law school.

It is also "extraordinary" for the Supreme Court to do anything at all during the sleepy summer recess, let alone intervene to save potentially innocent black men from southern lethal injection tables. Supreme Court justices have more important things to do in the summer, like go on safaris and watch operas. After all, they work hard from October to June. They need some down time. All that talk about collateral estoppel and jurisdiction is exhausting.

Justice Antonin Scalia wrote a dissent to this "extraordinary" order. In essence, he wrote that the Constitution poses no barrier to a State executing an "actually innocent man," as long as he receives a "full and fair trial on the merits." After all, the words "innocent" and "execution" don't appear in the Constitution. And we need some finality in our justice system; we can't just free people who say they're innocent, even if all the State's witnesses recant their testimony and there's no direct physical evidence linking the defendant to the crime. Actual innocence, in other words, does not save you from "legal guilt." It doesn't matter how tainted the legal process might be; once a jury speaks--even on the basis of admittedly false testimony and perjured facts-- you're pretty much done.

Yes, you read it right. And yes, you might even wonder whether satire is even necessary in these circumstances.

But satire is necessary. It is necessary to combat foolishness like this. It is necessary to illustrate how counterintuitive the law can really be. That is why I am taking my time to grasp Justice Scalia's latest ode to positive law and procedure. Tomorrow, I plan to castigate this madness with vigor.

Moments like these make me realize that I will never exhaust the satirical well. As long as people like Justice Scalia breathe, I will have ample opportunity to mock callous absurdity.

MORALITY FIRST : MALE HOMOSEXUALITY IS DISGUSTING AND MUST BE STOPPED AT ALL COSTS

By : Dr. G. Strong Wacker, M.D., M.P.H.; Commissioner, The National Board for Family Health (1998-present); Physician (Urological Reconstruction & Urethral Science); Member, The Morality First League for Equal Protection Under Law (1993-present); Theater-Goer; Amateur Florist & Gardener; Senior Coordinator, Zac Efron Fan Club (San Francisco Branch)(2006-present).

In 2004, President George W. Bush made a concerted effort to ban gay marriage. Although Congress did not amend the Constitution to forever prohibit men from marrying men, he made his point. In fact, Americans cared so much about the marriage issue that they reelected him President that very year. Put simply, Americans know that male homosexuality is morally wrong. Bush won reelection because he publicly declared that no male would ever make vows to another male.

But stopping gay marriage did not end the debate. George W. Bush may have saved the country from gay marriage, but he did not save the country from male homosexuality. We believe that we must prohibit all male homosexuality, not just homosexual marriage. It is not enough to stop two men from combining their finances to cheat the Internal Revenue Service. Nor is it enough to stop two men from exchanging rings and swearing fidelity to each other. No, we must go further. As a society, we must say what we all feel: “Male homosexuality is disgusting and must be stopped at all costs, no matter who dies.”

As a society, we have a right to stop disgusting behavior. Our deepest moral impulses empower us to outlaw disgusting things, including public defecation, slovenliness and grime. When behavior arouses our disgust, we have a right to suppress it. When behavior smells bad, we must punish it. After all, it is disgusting. It makes us pinch our noses, recoil and cry out: “Yuck!” No one deserves to live around foul odors and disgusting behaviors. Indeed, bad smells and immorality form the basis for all our criminal law. Male homosexuality, like public defecation, slovenliness, fraud and theft, is both disgusting and immoral. We just don’t like it. We must remove its stink from our midst, just as our earliest ancestors removed decaying carcasses from their settlements.

We don’t like male homosexuality for many reasons. First, the idea of two men groping and fondling each other makes us uncomfortable. It is just not right. It looks disgusting, too. If it appeals to you, there is something very, very badly wrong with you. Second, male homosexuality presents a public health hazard. Homosexuals are disease-ridden, promiscuous, dissolute, lustful infiltrators who spread pestilence and death through our communities. Third, male homosexuals defraud our society by wasting their reproductive capacity on furtive pleasures. Rather than commit themselves to fatherhood and childrearing, they abandon themselves to aesthetic preening, perverted flirtation and “fun.” This costs our community live births and future citizens. Fourth, male homosexuality harms children. Homosexuals ritually rape children every day; if we care about our children, we must act to stop the homosexual menace. Fifth, homosexuals have untold political influence. According to United States Supreme Court Justice Antonin Scalia: “[Those] who engage in homosexual conduct tend to…have high disposable income [and] they possess political power much greater than their numbers, both locally and statewide.” Romer v. Evans, 517 U.S. 620, 645-646 (Scalia, J., dissenting).

Put simply, homosexuals are devious, dangerous, disgusting, harmful to children, insolent, irresponsible, wasteful and seditious. We must act now, before it is too late. Our children and our sensibilities demand swift action.

Tradition justifies our effort to stamp out homosexuality. Justice Scalia is a brilliant jurist. We take heart in his legal pronouncements concerning the homosexual menace. He has written at length about government’s traditional right not only to criminalize homosexuality, but also about society’s basic right to hate homosexuals as part of our “moral heritage:” “[] I had thought that one could consider certain conduct reprehensible—murder for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct.” Romer v. Evans, 517 U.S. 620, 644 (Scalia, J., dissenting). Justice Scalia correctly equates homosexuality with murder, polygamy and cruelty. He knows what he is talking about; he went to Harvard Law School and he has served on the United States Supreme Court since 1986. According to Justice Scalia, homosexuality is just as morally wrong as killing your neighbor or torturing a dog. As a society, we have a right to condemn such abominable outrages. We have always had a right to condemn murder, just as we have always had a right to condemn male homosexuality.

In many ways, male homosexuality is more despicable than murder. After all, some murders offend us less than others. For example, we do not condemn a man who kills his wife’s lover in a jealous rage as much as we condemn a man who carefully plots his wife’s death with equanimous efficiency. Murder does not always arouse our deepest disgust; sometimes we even look with sympathy on the killer. Male homosexuality, on the other hand, is irretrievably disgusting. Nothing mitigates anal sex between two men; it is categorically disgusting. It is so revolting that no reasonable person could ever forgive it or look upon it with sympathy. The mere idea of two naked men kissing is simply nauseating. Murder does not always arouse such deep, rancid disgust. In that light, male homosexuality deserves our strongest condemnation.

Female homosexuality, on the other hand, presents a different question. Lesbians are beautiful to behold. I feel no disgust whatsoever when I think about two naked women caressing one another. In fact, I would very much like to join in any amorous adventures between two beautiful women. Unlike male homosexuals, lesbians pose no public health hazard. They do not spread pestilence and death. They do not rape children, nor do they have unlimited resources with which to overthrow the government. They do not waste their reproductive potential; lesbians can always get pregnant at some later date.

Put simply, lesbians are neither immoral nor disgusting. On the contrary, they are beautiful, especially when they allow men like me to join them in erotic contact. I speak for every American when I say that lesbian sex is neither dangerous nor unhealthy, provided that the lesbians in question are good-looking and would allow me to join in. I would not mind looking at two hot lesbians having sex; indeed, thinking about it arouses me to some extent. There is nothing wrong with that. It is not immoral.

I am certain that Justice Scalia would agree with me about lesbians. There is nothing in our moral tradition that recoils from lesbian sex. Our moral tradition recoils from ugly penises and anuses, not appealing breasts and vaginas. Males smell. Females do not. I would not mind looking at lesbian sex. For that reason, lesbianism presents no danger to society or our children. Lesbianism is not immoral.

Only male homosexuality is immoral. It is both dangerous and unhealthy. I would not want to look at it. We have a traditional right to hate it. For these reasons, we must stand fast against male homosexuals. We must heed Justice Scalia’s advice. We must defend against their disproportionate political influence. If we relax our stance toward male homosexuals for even a moment, they will take over Congress and legalize child rape. If we relax our stance toward male homosexuals for just one moment, they could infect our entire society with venereal diseases, canker sores, rickets, scabies, herpes, cooties and parasites. If we care about morality, health and reproduction, we must sound the alarm on male homosexuality. Stopping gay marriage is not enough. That is why we, the Morality First League for Equal Protection Under Law, are committed to stopping all homosexual immorality, no matter who dies. Tradition supports us. Justice Scalia supports us. Male homosexuals are no better than murderers, polygamists and animal torturers. Plus they smell and I would not want to watch them have sex.

We cannot be tolerant when so much is at stake. It may be 2009, but male homosexuals are just as immoral and dangerous today as they were in 1500. In 1500, governments burned male homosexuals because they honestly recognized how dangerous they were. We must not allow “progressivism” to blind us to those dangers. We must merely remember that male homosexuality is disgusting. No matter how fashionable it may be to “understand” male homosexuals, we cannot forget that they engage in smelly, abominable conduct that we have a right to hate. And by “understanding” male homosexuals we play directly into their hands. As Justice Scalia pointed out, they are politically powerful. As soon as we ease the pressure on them, they will overthrow the government and institute Federal policies subsidizing child rape and debauched all-male nude beach parties. Put simply, we must stand firm against this menace. We cannot afford to be tolerant with immoral deviants, especially when—as Justice Scalia told us—they have high disposable income and disproportionate political influence.

In sum, we have a political, moral and medical duty to stamp out male homosexuality because it is disgusting. Thinking about it makes me uncomfortable and nauseous. I would probably vomit if I stumbled across two men having sex. We must implement laws that correspond to our basic moral feelings. We must outlaw male homosexuality because it arouses my disgust, just as public defecation does. Like public defecation, male homosexuality smells and presents noxious public health hazards. If we care about health, morality and our children, we must take every measure necessary to suppress male homosexuality. Tradition demands no less. Our children expect no less. We must act now before homosexual conspirators topple the government and transform the United States into a vast disco Empire led by shirtless go-go dancers.

Yet we must spare lesbians. There is nothing immoral about them. I really like to look at them. I even think about them quite a lot in my spare time.

THE CONSTITUTION IS NOT "COLOR-BLIND"

AN ESSAY

Yesterday I used satire to illustrate the foolishness in typical conservative reasoning about race in American life. I especially targeted the conservative exasperation with “affirmative action programs” that allegedly “keep old questions alive” by focusing on “past discrimination” against disadvantaged groups in American society. According to conservative reasoning, the Fourteenth Amendment to the United States Constitution bars governmental distinctions based on race, no matter whether those distinctions aim to help or hinder minorities. My satire attacked this reasoning on a simple premise: When discrimination affects whites, they have nothing to complain about. While it may hurt a white person’s feelings to lose a job or university seat to a black man, the fact remains that African-Americans do not have the same practical opportunities in American society as whites. History shows that “real racial equality” in American life is at best a farce, no matter what the law says. History caused the problems; and it will perpetuate them. Contrary to conservative rhetoric about race, racial problems did not disappear when the Civil War ended, nor did they disappear when the Supreme Court abolished state-sponsored segregation in 1954. Legal fiat does not produce practical reality. Yet this is precisely what conservatives believe: They think that legal equality translates immediately into practical equality. And when they see blacks arguing that life is still unfair for them, they say: “Haven’t we given you enough? Get over it, will you?”

Telling black Americans to “get over the race problem” in America is like telling an incurable cancer victim to “get over” cancer. Racism and race-based prejudice are alive and well in America. This country was born in racism and has lived its life in racism. Racism sustained our economy before the Civil War and mutual recriminations about racism have dominated our outlook ever since. Contrary to every conservative assertion, history has everything to do with continued racial problems in America. Until 1865, African-Americans were not legally “people” under the Constitution. Killing a slave resulted in a property damage suit, not a murder prosecution. After Emancipation, blacks in the South achieved illusory “legal equality” but still faced summary lynchings and mob justice. And as a practical matter, they faced every imaginable disadvantage in society. They could not live where they wanted. They had no skills and no education to win favorable employment. In short, they "advanced" from slavery into a permanent economic and racial underclass. Although Congress and the States made determined efforts to equalize the playing field for African-Americans, it does not take a genius to see that an average black man’s life circumstances barely resemble an average white man’s life circumstances in America. Blacks occupy prisons in far greater proportions than whites. They live in generally much worse housing. They generally earn far less income. And they are generally homeless in greater proportions than whites, too. These problems are endemic; they are not going away, no matter what Congress does. Our law has apologized for “official” racism. But its legacy—and its evil, practical cousin, actual racism—lives on. Just walk into a “black neighborhood” in an American city. Why are the “black neighborhoods” so poor? Why do they breed so much more poverty, hopelessness, joblessness and crime? Why is virtually every homeless person in New York City and Chicago black? Why is virtually every violent crime suspect on television black? The eye does not lie. Legal equality has not solved the race problem in America. There is something much more pernicious going on here.

Yet conservatives think that legal apology is enough to right the historical wrongs of slavery and State-sponsored segregation. They think that problems experienced in past generations do not spill over into modern generations. This is fatally mistaken. Slavery and Jim Crow made indelible impressions on their subjects. Black people in the United States have come to expect bad treatment in life, as well as unfairness, poor opportunity and likely failure. The law used to “officially” brand them inferior. Now they are inferior “in effect” because they do not have the social capital to fully assimilate into a culture that rejects their values. White American society is profoundly judgmental. It expects certain values from its members; if they do not have these values, they can expect ostracism and condemnation. It expects deference, some education, politeness and a remotely “decent upbringing.” But these values represent generations of work and comfortable heritage; if an “outsider” does not meet the criteria, he can expect no sympathy from “mainstream” American culture. In essence, white American society institutionalizes racism on a subconscious level. Even if most white people consider themselves “progressive,” “liberal,” “open-minded” and even “solicitous about black problems,” they typically live in all-white circles and practice all-white values. They do not see black people in familiar settings, nor do they really understand what it is like to grow up in a society with no practical opportunity. If anything, they see black people as “foreign curiosities,” not social equals. They might even admire black Americans for some special talent. But they still live in a radically different culture. Most white Americans will never grasp just how much historical weight an average black American carries on his shoulders every day. After all, most white Americans grow up with a sense that “anything is possible” in life. Black Americans, on the other hand, generally grow up thinking that they are playing a rigged game. “Legal equality” sounds great. But when you grow up destitute, surrounded by crime, without an education or a stable home, achieving “proper success” according to dominant white bourgeois values is sheer fantasy.

Reminding black Americans that they are “legally equal” is something akin to opening a magic door suspended 1000 feet above the ground, then saying: “OK, now it’s up to you to get in there.” It just doesn’t happen absent a miracle.

But conservatives can’t escape their own perspectives. They think that as long as the law treats everyone the same, it doesn’t matter what historical burden you carry. They think everyone born in America is an “American” with exactly the same advantages and opportunities as everyone else. They think that our Constitution is “color-blind” and that “race does not matter anymore.” That is easy to think when you are born with all the real, practical social advantages that make success possible under the unforgiving white American bourgeois value regime, such as maintaining a stable family, getting an education and enjoying affluent living quarters. Against this background, they cannot evaluate the issues from an average black man’s social perspective. This is why they fundamentally misinterpret continuing racial ills in the United States. They do not think black people need help because they “law has already made them equal,” so there is “nothing more to discuss.”

Interestingly, this conservative myopia is not new. Since the Civil War, our Supreme Court has defined itself by grappling with the race problem in the United States. Most people know about Plessy v. Ferguson, 163 U.S. 537 (1896), the case in which the Supreme Court held that State-sponsored segregation was permissible despite the Fourteenth Amendment’s “equal protection” guarantee because the Constitution did not guarantee “social, as distinguished from political, equality…[nor was it intended] to abolish distinctions based upon color.” Id. at 543-544. In conclusion, the Court reasoned that States could lawfully segregate the races as long as the facilities were “legally equal.” Id. at 551-552. Further, such distinctions did not imply that blacks were “inferior” to whites. Id. Justice John Marshall Harlan famously dissented from the Court’s reasoning. He wrote: “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Id. at 559. Segregating the races, according to Harlan, stamped black Americans with a “badge of inferiority,” which in turn violated the “equal protection guarantee” under the Fourteenth Amendment.

Many scholars applaud Justice Harlan’s resistance to the majority in Plessy. In law school, our professors always voiced their support for his refusal to certify the “separate but equal doctrine.” Years ago, I agreed with them. But now, I see flaws even in Justice Harlan’s position. His arguments about a “color-blind Constitution” and “equality before the law” have been misappropriated and misunderstood in the century since Plessy. In recent Supreme Court cases, conservative justices have used Justice Harlan’s rhetoric to actually invalidate State efforts to help black people win employment in public contracting. See, e.g, Richmond v. J.A. Croson, 488 U.S. 469 (1989); Adarand Constructors v. Pena, 515 U.S. 200 (1995). In short, conservatives on the Supreme Court have used Justice Harlan’s language—which in Plessy expressed sympathy for blacks in America—in order to strike down legislation for discriminating against whites. For these conservative justices, a “color-blind” Constitution is a two-edged sword: It means that government cannot discriminate against anyone, even if it is trying to help the very groups that have traditionally suffered discrimination in American history.

This infuriates me. No one likes discrimination, but when discrimination falls upon whites—in order to remedy the gross historical wrongs inflicted on blacks—I see no problem. And I disagree wholeheartedly with the contention that the Constitution is “color-blind.” If the Constitution were color-blind, the Fourteenth Amendment would have been unnecessary. This country fought a Civil War over slavery because the racial problems it created stood in hypocritical contrast to the bold “equality principle” that supposedly defines us. By 1861, America could no longer argue in good faith that “all men were created equal” when it made some men property. The Civil War acknowledged that slavery represented an injustice in a country committed to justice—at least on paper. The Fourteenth Amendment represented an attempt to remedy past wrongs by helping black Americans find their way into American society. In essence, it was a discriminatory amendment; it assumed that Congress and the States would pass laws intended to help black Americans escape their historical disadvantages and make progress toward true equality. In that sense, Justice Harlan was wrong to suggest that the Constitution is “color-blind.” The Fourteenth Amendment implicitly required government to consider race to erase the entrenched legacy of racism in the United States. It implied that race was relevant in America. And it implied that government could not solve the problem without making some distinctions based upon race. The Fourteenth Amendment, then, is essentially remedial; it aims to remedy the legacy of slavery. More to the point, it even empowers Congress to enforce “the provisions of this Article…by appropriate legislation.” See U.S. Const. Amd. XIV, § 5. Such “appropriate legislation” includes favorable discrimination intended to carry out the Amendment’s remedial purpose.

For some reason, the conservatives do not understand this. Instead, they pry Justice Harlan’s mistaken “color-blind” language from its contextual moorings to argue that government can never consider race, even when it is attempting to fulfill the Fourteenth Amendment’s avowedly remedial purpose to help blacks. Justice Scalia often cites Justice Harlan’s “color-blind” shibboleth to support his position that “State and local governments” may never “discriminate on the basis of race in order (in a broad sense) ‘to ameliorate the effects of past discrimination.’” Richmond v. Croson, 488 U.S. 469, 520 (Scalia, J., concurring in the judgment). He thinks that any racial discrimination—even to advance the “benign purpose of compensating for social disadvantages,” and no matter whether it falls upon blacks or whites—is categorically impermissible. Id. Thus, if government believes that blacks need assistance in a social area in which they have suffered historical discrimination, government cannot adopt legislation intended to improve the situation, because that would “discriminate against whites.” And according to Justice Scalia, the Fourteenth Amendment does not tolerate discrimination against whites in just the same way it does not tolerate discrimination against blacks.

I think this reasoning fails to comprehend the Fourteenth Amendment. Congress and the States ratified the Amendment because they recognized that America had a one-way race problem: Whites dominated blacks and subjected them to every imaginable disadvantage. To correct that imbalance, the Amendment authorized government to adopt legislation intended to help blacks, even if that meant discriminating (in a literal sense) against whites. Despite all huffing and puffing to the contrary, whites have never lost their dominant position in American society. They never will. The fact that they must suffer some “abstract” discrimination once in a while will not change their dominant position. Yet Justice Scalia seems to think that any discrimination—even if it is abstract and has no bearing on white people’s unassailable dominance in American society—violates an Amendment that impliedly authorized “abstract” discrimination against whites so that blacks could stand at least a chance to achieve some practical equality in America. Considering the issue in this light, it may seem fantastic that Justice Scalia believes this. But he is not alone: At least three other Justices have expressly signed on to his deeply flawed belief that the Fourteenth Amendment is “color-blind.”

Neither our Constitution nor our society is “color-blind.” And contrary to Justice Harlan’s assertion, the United States does “tolerate classes between citizens.” Although the law does not make black Americans “property” anymore, it is evident that black Americans still do not enjoy the same average advantages as white Americans. Legal equality does not translate into practical equality. Worse, I believe that the United States has no interest in securing equality for all. This is why I believe that Justice Harlan’s rhetoric about “a classless, color-blind society” is totally unfounded. No one wants to be equal in America. Americans want to outdo one another. They want to be unequal in wealth, power and status. They want to be “better” and “more privileged” than their neighbor, not “the same.” Whether or not black people achieve equal advantages means absolutely nothing to an average white man who just wants to make money and go home at night. For most white Americans, the fact that blacks have “technical, legal equality” is more than enough. They can “sort through the rest” on their way to success. This, of course, completely overlooks the monumental social handicaps blacks still face in our country. White Americans might empathize with these handicaps, but they really don’t care all that much about them. After all, whether a black man suffers does not affect whether a white man keeps working at his career. White Americans simply say: “They do not live like us, and it makes no difference to me. I need to get to work.” That indifference allows them to turn a blind eye to continuing racial inequality in America. It just really does not matter to an average white American.

If equality were really a concern, black Americans and white Americans would all go to prison in the same proportion. Black Americans and white Americans would live in relatively comparable housing and there would be just as many “bad white neighborhoods” as “bad black neighborhoods.” Black Americans and white Americans would all score about the same on standardized tests, and both races would earn roughly comparable incomes. Yet blacks and whites are not equal in these practical realms. Legal equality has not translated into practical equality. Classes do break down along racial lines. America does tolerate “classes” and “castes.” Sadly, those “classes” and “castes” reflect a fundamental racial divide more than 140 years after a Civil War intended to mend it. No matter what Justice Scalia says, racism is alive and well in America. And it affects blacks in a way that no white American can ever imagine.

PUNISHING "BAD WORDS" : MORALITY, JUDGMENT AND THE FIRST AMENDMENT

OESTERHOUDT STRIKES

I like May and June because they are the months in which the Supreme Court issues its most contentious opinions. This not only invigorates my critical spirit; it also gives me plentiful fodder for satire. After all, with a bitter conservative majority on the bench determined to buck Democratic control in Washington, I expect especially rancorous and divisive opinions this year. I have often written that I have lost much faith in the Supreme Court. In recent years, it appears to me that the Justices merely translate their own political beliefs into “opinion-speak,” then try to fool their readers into thinking that they actually made principled decisions. Although I have greater contempt for conservative justices than liberal ones, both sides are guilty. Doctrines that avoid questions altogether—like standing, political question and “constitutional avoidance”—typically arise when the prevailing side uses it to win the case. For example, Justice Scalia may extol “judicial restraint” by “deciding only the statutory question” if the statutory question will lead to conservative victory. But when conservative victory depends on “ignoring the statutory question” and interpreting the Constitution, all his “restraint” rhetoric goes out the window. At the same time, the liberals will argue “restraint” when the conservatives interpret the Constitution, and they will interpret the Constitution when the conservatives argue “restraint.” It is pitifully predictable. It is pitifully political. In short, the Supreme Court has become expedient. They merely dress up their prejudices and subjective inclinations in perplexing jargon. But prejudices and subjective inclinations they remain.

I find this disheartening because I truly believe that the Constitution stands for something greater than ourselves. When justices infuse their own foibles and political judgments into questions involving lofty principles such as the “freedom of speech” or “Equal Protection,” they forget what the Constitution really means. In my view, “constitution” is a good word. It brings to mind abstract freedom, liberty, justice, rights, humanity, goodness and compassion. I think most people share that impression. Even R&B King James Brown echoed this “positive” impression about the Constitution in his 1971 recording “Get Up, Get Into, Get Involved” when he sang: “We don’t need Revolution/ We Got to have Constitution/ We don’t need sorry fools/ We got to have better schools.” Revolution of the Mind Album (1971). Mr. Brown thought that the Constitution represented America’s great solution to burning social problems. In his view, we did not need revolution because the Constitution already provided us all the liberty and justice we need. And he equated the Constitution with “better schools.” Schools are good. In other words, the Constitution, too, means something good. It is so good that we do not need to revolt against our government. In the popular view, the Constitution is good. It stands for all the great ideals that Americans think represent America: justice, equality, freedom, etc., etc.

At least, this is what people believe. If they went to law school and read some Supreme Court cases, they would discover the sad truth that our Constitution does not always lead to justice. While the Constitution theoretically offers America a path to justice, more often it operates simply as a “governing document” that provides for “basic peace, security and stable commerce.” True, the Constitution guarantees individual rights against governmental interference. But rights are hazardous. If the people have too many rights, the government could not get anything done. Recognizing this, the Supreme Court has done much to curtail the “majestic generalities” contained in constitutional language. For example, while the Fourteenth Amendment, § 1 reads: “No State shall…deny to any person within its jurisdiction the equal protection of the laws,” this does not literally mean that States must treat everyone equally. Indeed, the Supreme Court has effectively eviscerated this hopeful-sounding language by allowing States and the Federal government to make whatever legal distinctions they wish, provided they can show that the distinction “rationally relates” to a “permissible State interest.” See, e.g., Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-176 (1980). Sometimes the State must show greater justifications. But the point is that constitutional language does not mean exactly what it says, no matter how nice it looks. The Supreme Court limits it until the original language becomes a virtual mockery unto itself. Nonetheless, most Americans do not know about Supreme Court decisions. They cling to the idea that the Constitution is good. They continue to think it stands for liberty and justice.

Consider the First Amendment. I deeply care about the First Amendment, especially its protection for “free speech” (“Congress shall make no law…abridging the freedom of speech, or of the press…). U.S. Const. Amd. I. The First Amendment has assumed mythical status in the American value system. After all, what would “freedom” mean if we could not speak out on issues without fear of governmental sanction? How could we claim “liberty” about anything if our own government could punish us for speaking our minds? What would individuality mean if the State could punish individual expression? To my mind, “freedom of speech” is my core liberty. Without it, I could not express my own ideas. I could not challenge, criticize, satirize or lampoon my government. Perhaps I could, but I may go to prison for it. Yet that would be quintessentially “un-American,” wouldn’t it? After all, Americans think that they have the right to criticize the government and to speak their minds on virtually any issue. That’s what makes us “free.” According to this common understanding, the First Amendment stands for much more than the freedom to say things. It stands also for the freedom to think for ourselves and to have a conscience, even if our thoughts cause tension with others. To my mind, the First Amendment is a glowing beacon of liberty in otherwise cold and remorseless legal world. It is my shelter to be who I am, and to say what I think, even if it is not “appropriate,” “decent,” “moral,” “just,” or “appetizing.” That is breathtaking liberty. And that is why people think that the Constitution is “good.” After all, if it stands for such wonderful rights, how could it be bad?

But the First Amendment has not escaped the Supreme Court’s pruning shears. While the Court sometimes strengthens the First Amendment and sings praises to the fundamental liberty it guarantees (see, e.g, New York Times v. Sullivan, 376 U.S. 254 (1964)), more often it steps in to “put a sock” in speakers’ mouths. Especially in recent decades, true “freedom of speech” has been whittled down into an illusory guarantee, in much the same way the “equality principle” housed in the Fourteenth Amendment has been qualified into oblivion. How could this happen? How could the bastion of our rights as individual citizens be interpreted away like this? Easily: Because the Supreme Court is a political institution. Justices in our times do not think about liberty in the abstract. They think about how they can disguise political judgment as constitutional law. That approach has savaged our constitutional liberties. Not only can we not speak as freely as we could in times past, but we are also not as secure in our persons, property and dignity as we once were. It is much easier for the police to wring confessions and search homes today than it was in 1970. Through an endless series of fact-based exceptions, qualifications, explanations and limitations, the Supreme Court has stripped our liberties, rendering them technical shibboleths with no romantic appeal at all. Our “freedom of speech” is no exception to this trend.

When the Supreme Court takes a wrecking ball to the First Amendment, I get upset. When justices impinge upon our liberty to speak by disguising their own moral and political prejudices in fancy legalese, my blood boils. Recently, the Court broke out the demolition equipment again in the case F.C.C. v. Fox Television Stations, Inc., 556 U.S. ___ (2009). Here, the Court revisited the “indecency in broadcasting debate” that began with the classic case F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). In essence, Pacifica held—without precedent—that “indecent, nonobscene” language in broadcasting could be banned because it had a “unique power to offend,” it was “uniquely pervasive” and it was “uniquely accessible to children.” Even though there was no constitutional basis to ban such “nonobscene” speech outright, the Court created a special “category” for so-called “indecent speech” that might “injure a listener who does not want to hear it” because it had “lower value” than other protected speech. In the usual case, the First Amendment’s free speech guarantee prohibits government from regulating speech based merely on its “content” or “message.” Rather, the government may only regulate speech based on content if it fits a “traditionally proscribable category,” such as “fighting words,” “obscenity,” “incitement to riot,” or “libel.” In Pacifica, the Court admitted that the broadcast at issue was not obscene—it merely “deliberately and repeatedly” referenced “sexual and excretory functions and organs.” Nonetheless, based on “moral considerations” and “context,” it decided that government could fine a broadcaster for crossing the “decency line.” After all, according to the Court, such language has “low value.” In essence, the Court made a moral judgment. It concluded that certain otherwise constitutionally protected speech has “lower value” than other speech. Because the Court found the broadcast “patently offensive” on moral grounds, it fined the broadcaster.

Liberty took a significant hit in Pacifica. In the ensuing decades, the Federal Communications Commission began policing broadcasts for “indecent speech” that could potentially “offend an unwilling listener” with “sexual or excretory” language. Over the years, the Commission developed a torturous, morality-laden common law by which it analyzed whether particular words were “patently offensive,” looking to such details as whether the “words were deliberate or repeated,” whether they “literally referred to sexual or excretory function” and whether “they merely were fleeting, expletive uses” that would not offend as many people. In other words, it would be “indecent” to broadcast: “I need to take a shit” because that “literally refers to excretory function, but it would not be indecent to broadcast: “Oh shit! I’m on fire!” because that is merely a fleeting, expletive “non-literal” use of the word. Under this labyrinthine common law, referring to real excrement was “indecent,” “disgusting” and “offensive.” But merely making an “exclamation” was not.

In the Fox case, Justice Scalia tightened the “indecency” noose even further. In a predictable 5-4 decision (conservatives Roberts, Scalia, Thomas, Alito and Kennedy v. liberals Stevens, Souter, Breyer and Ginsburg), the Court concluded that the Commission could fine Fox for broadcasting the words “fuck” and “shit” during the Billboard Music Awards in 2003. Cher uttered her bad word when she lashed out at her critics: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. Fuck ‘em.” See slip opinion at p. 6. Paris Hilton and Nicole Richie uttered their bad words with a joke about “cleaning cow shit from a Prada bag; it’s not that fucking simple.” Id. The Commission said that Fox violated its rules prohibiting “indecent language” on the airwaves. See, e.g., 18 U.S.C. § 1464. In the Commission’s view, even “fleeting, non-literal” “bad words” could be “patently offensive,” despite a prior rule to the contrary. The Board reasoned that the word “fuck” was always offensive “because that word has an inherently sexual connotation” and “[it] is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.” Id. at p. 7. Why exactly is “fuck” so offensive? According to the Commission: “Because it invariably evokes a coarse sexual image.” Id. And why was Cher’s “fuck ‘em” comment so offensive? According to the Commission: “Because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.” Id. Justice Scalia implicitly agreed with this linguistic analysis, adopting the Commission’s reasoning: “An expletive’s power to offend derives from its sexual or excretory meaning.” Id. at p. 8.

Justice Scalia proceeded to expressly reject a constitutional challenge to the Commission’s action, choosing instead to review the case as “an administrative matter” under the Administrative Procedure Act, 5 U.S.C. § 551. See slip opinion at pp. 9-12. Under that deferential standard, the broadcasters were doomed to fail. The Commission merely had to show that its reasons for adopting the new “no expletive” policy were not “arbitrary or capricious.” Id. at p. 9. To meet that standard, the Commission simply had to say that it explained its reasons and believed them. Id. at p. 11. Justice Scalia even refused to apply a somewhat “heightened review” to the Commission’s action because its “policy change” did not “contradict any previous factual findings,” nor did the old policy engender “serious reliance interests.” Id. at pp. 11-12. After all, this was merely a case involving “bad words.” There was no need to bring up the First Amendment.

This reasoning outraged me because it so dismissively rejected the constitutional implications inherent in the Commission’s action. In my view, no matter how offensive a word may be, it is still “speech,” and if government has a problem with the content, it must proffer a very compelling justification to suppress it. See United States v. O’Brien, 391 U.S. 367 (1968). Worse, the Court implicitly adopted the Commission’s rhetoric that a word’s “power to offend” flows from “sexual or excretory meaning.” This is not constitutional law, nor even detached legal analysis. This is pure value judgment. According to this logic, any word that has a “sexual or excretory meaning” has “the power to offend.” It follows, then, that not just “fuck” or “shit” would be “offensive,” but also “coitus,” “intercourse,” “copulation,” “defecate” or “poopie.” All those words have “sexual or excretory meaning,” and thus—according to this preposterous analysis— “the power to offend.” What does this moral oversensitivity have to do with the liberty to speak and use language? To me, this is Puritanism masquerading as constitutional analysis. And value-laden Puritanism is no basis upon which to make decisions that impact every American’s rights under the First Amendment.

Under the Court’s reasoning, Cher could have said: “Intercourse my critics” and the Court would still have approved a fine for “indecent speech.” Nicole Richie could have said: “Have you ever tried to clean cow dung from a Prada bag? It’s not so copulatingly simple” and she still would have used words that “have the power to offend” because they have “sexual and excretory meaning.” Further, the Court agreed that the phrase “Fuck ‘em” was “bad” and “offensive” because it “metaphorically suggested a sexual act as means of expressing hostility to [Cher’s] critics.” It also said that the word “fuck” “invariably evokes a coarse sexual image.” This is pure rubbish. Anyone with a rudimentary understanding of English slang knows that the word “fuck” is immensely versatile. It is not always sexual, nor does it always “evoke a sexual act or image.” Dictionary.com provides the following definition: “Fuck (verb used with object): 2. slang to treat unfairly or harshly.” Cher used the verb in exactly this sense. She expressed harsh contempt for her critics. It had nothing to do with sex. In that light, the Commission’s linguistic reasoning is demonstrably false and exaggerated.

I find these matters critically important, even if they involve only “vulgar speech.” Although the Commission identified “fuck” as a “bad word” because it was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” I defend language for its own sake. I like knowing that I can use whatever word I please to describe my own thoughts and impressions. Words are not evil in themselves, nor should we ban them because they engender moral revulsion in faint hearts. If we entrust governmental agents to screen out certain words based on their own, regressive moral sensibilities, we cede our individual liberty to their judgments. And if the Commission and the Supreme Court represent the “standard” for “decency,” we can expect to cede a great deal more.

I often criticize dominant morality because it is not based in reason. Rather, morality derives from age-old intuitions concerning a general societal belief that something is “disgusting,” “revolting,” and thus “blameworthy” and “inappropriate.” Yet the Constitution and individual rights should be based in reason, not intuition. The Constitution is not a moral treatise. But the Fox case, as well as the whole “indecency doctrine” in general, make morality the entire basis for constitutional decisionmaking. Reason did not influence the Commission’s rationale for banning “offensive” speech. Rather, intuitive moral revulsion influenced the rationale. Some overly moral tightass got uncomfortable when he heard the word “shit,” then prevailed upon his fellow overly moral tightass friends in power to ban the word. The Supreme Court majority in Fox agreed in principle with these overly moral tightasses, even if it disguised its moral approval with vacuous legal nonsense about “standards of review” and the “Administrative Procedure Act.” These legal mechanisms represent a mere technical subterfuge for brazen moralizing. And Justice Scalia’s refusal to address the constitutional dimension to “indecency bans” reflects his own moral belief that “indecent speech” is “bad” because it is “disgusting.” Again, this is not constitutional analysis. It is value judgment.

Reason should guide the United States Supreme Court, not morality. In many cases, reason and morality can coexist. But when it comes to constitutional liberty, morality must give way to the abstract guarantees to which citizens are entitled. Morality is intensely subjective. It plays upon emotion and passion. Indeed, any belief system that draws upon disgust necessarily disparages reason. As such, any so-called “constitutional jurist” must handle morality with the greatest care when addressing constitutional questions. Morality has the power to introduce concerns that have no place in the pantheon of constitutional liberty. The First Amendment contains positive abstractions that favor the individual and his expression. Morality, on the other hand, provides a basis to judge other individuals and their expression “revolting.” A prudent jurist will recognize that tension and rule for abstraction over morality, even if he finds the individual’s expression “disgusting.” In the Fox case, the Court should have addressed the constitutional dimension to the Commission’s morally charged rule-making. When morality treads too harshly on core constitutional guarantees, a conscientious jurist must address the constitutional issues. The fact that the Court here did not even broach the First Amendment bespeaks its modern-day malaise—and even cowardice.

If we truly are a “Nation of laws,” our Supreme Court would disapprove the “indecency doctrine.” Law dictates that only certain “speech categories” may be banned. “Indecency” is not one of them. The Court allowed morality to tarnish its respect for liberty. Pacifica was a mistake. Fox perpetuates its error. Until the Court recognizes that liberty must win over morality, we can expect more absurdities in the future, as well as less freedom to speak.

And I don’t give a damn about the children. Parents should start paying attention to what their children are watching. I cannot bear the fashionable rhetoric that justifies reducing constitutional liberties to protect some fanciful child. Our Constitution is timeless. Our children are not. I would rather have my liberty than overprotected children who will wind up speaking vulgarities anyway. It is a harsh world. “Bad words” will reach them some day, somehow.

JUSTICE SCALIA TO PRESIDENT OBAMA : KISS MY WHITE ASS

By : Mr. Antonin G. Scalia, Associate Justice, United States Supreme Court, Seat 10 (1986-present)(Appointed by President Ronald Reagan); Law Professor, University of Chicago School of Law (1977-1982); Constitutional Originalist; Republican.

In the usual case, Supreme Court justices do not volunteer their opinions on political matters. See Baker v. Carr, 369 U.S. 186 (1962); Goldwater v. Carter, 444 U.S. 996 (1979). We are, after all, detached and independent legal scholars under our constitutional system. See, e.g., U.S. Const. Art. III, § 1; Federalist No. 78 (Hamilton). We could not perform our neutral interpretive role in if we constantly embroiled ourselves in Washington politics. Our allegiance lies with constitutional principle, not petty political loyalties. We do not squabble for votes or ridicule our political opponents. We render reasonable opinions consistent with the Constitution and laws of the United States. Personally, I do my utmost to remain faithful to the Constitution as our Framers understood it. If the People want to change the Constitution, they are welcome to do so. See, e.g, U.S. Const. Art. V. It is not my role to “invent rights,” “expand liberty” or “make things up” from the text. I just read and recite. I do not create. In virtually every case, I exercise judicial restraint; provided I agree with the law at issue.

But we live in extraordinary times. Never in my life have I witnessed such a stupid President. Contrary to my usual practice, I must speak out about President Obama. This man is going to run America into the ground unless someone stops him. Yes, I know the American People voted to elect him in large numbers. They are entitled to do so under Article II, § 1 and the Twelfth Amendment. Still, when the American People act in an irrational manner by electing a buffoon, I must assert my constitutional authority to protect them from themselves. See Marbury v. Madison, 5 U.S. 137 (Cranch) (1803).

I join my learned colleague John G. Roberts in denouncing President Obama as an idiot. Chief Justice Roberts wrote several months ago that he was “determined to make life difficult” for President Obama by issuing “occasional, irrational conservative judicial opinions” during his Presidency. See text at: http://reasoncommercejustice.blogspot.com/2008/12/word-from-chief-justice-john-g-roberts.html. Chief Justice Roberts referenced our institutional power as Supreme Court justices to resist inane Executive and Legislative measures by striking down laws inconsistent with our views. In a later article, Chief Justice Roberts soundly castigated Obama and the cult that reveres him. http://reasoncommercejustice.blogspot.com/2009/01/message-from-chief-justice.html. In that article, the Chief Justice rightly took offense over the liberal news media’s attempt to paint him a fool for misstating the President’s oath of office during the Inauguration Ceremony on January 20. Chief Justice Roberts spoke well when he said: “Screw you liberal assholes. I’m Chief Justice. You’re just a bunch of European-loving reds.” Id. True to his leadership role, Chief Justice Roberts swore that he would make “constitutional law personal” by opposing any law bearing Obama’s name. He also promised to abandon customarily polite Supreme Court rhetoric when writing opinions by including sentences such as: “Obama has his head up his ass if he thinks he can pass this bill, so help him God.” Id.

I fully agree with the Chief Justice’s sentiments. I fully support both his efforts to issue occasional, irrational conservative judicial opinions during Obama’s tenure, as well as his desire to “make constitutional law” personal by scrapping our usual reserve when writing opinions. Nonetheless, I believe that we must go further as an institution because our country has never elected such a dangerous man. I will not just occasionally issue irrational, conservative judicial opinions; I will always issue irrational, conservative judicial opinions. And unlike Chief Justice Roberts, I have no qualms about making constitutional law personal. I have been tongue-lashing my colleagues since I came on the bench in 1986. I never had a problem calling Justice O’Connor a country gal dingbat with fake hair, nor did I hesitate calling Justice Marshall a wheezy African Che Guevara. Believe me, I know how to call my current colleagues idiots, nincompoops, blundering old sots (Justice Stevens), screechy feminist hags (Justice Ginsburg) and anally overperfumed putzes (Justice Breyer). In fact, last year I opened an Institute celebrating my approach to collegiality: The Justice Antonin Scalia Society for Insulting, Degrading, Denigrating and Humiliating Your Professional Colleagues. See original opening remarks at: http://reasoncommercejustice.blogspot.com/2008/09/supreme-court-minute.html. Basically, when it comes to constitutional law, there is no room to be nice. It’s a war in here. You’re either right or you’re wrong, and I’ll tell you straight out when you’re wrong. I don’t waste my time with this “politeness” bullshit. If you get an argument wrong, I’ll at least publicly call you a butthead—and probably more. I might even call your ancestors stupid, since dumb usually gives birth to dumb. The press loves me. If it weren’t for me, they would only hear gibberish in the Supreme Court building like “estoppel,” “collateral bargaining agreement,” “justiciability,” “prudential grounds” and “oyez.” But when I’m on the bench, they get some entertainment with phrases like: “Moron, please be quiet; you’re giving me a headache;” “You whiny ACLU hell-bitch, would you please shut up?” “Wait a second, so you’re saying there’s a constitutionally-protected liberty to perform semi-public cunnilingus?!?” “I should hold you in contempt for just being an imbecile;” “What part of ‘Stop talking’ did you not understand?” and “My God, are you really that stupid?”

But this is not about entertainment. This is war. President Obama threatens to destroy the constitutional system as we know it. He undermines our free market system by providing government funds to private banks. He brutalizes private contract rights by rescuing homeowners from default and bankruptcy. He promises “change we can believe in” by freeing terrorists and allowing “second chances” to drug dealers, child molesters, rapists, gang thugs and hired killers. He tarnishes America’s influence on the world stage by groveling in Europe and withdrawing our troops from Iraq. He even has appointed left-wing ideologues to run the Justice Department, guaranteeing bothersome, costly investigations into important private business dealings. He even said he would repeal the Defense of Marriage Act (DOMA), compelling States to recognize same-sex marriages under the Full Faith and Credit Clause. See U.S. Const. Art. IV § 1.

This is not progress. This is tyranny. And I have only one thing to say to the “President:” Kiss my white ass.

Did you notice that the President is black? What the hell were the American people thinking? We jail and execute black people; we do not elect them President. Believe me, I know we jail and execute them. I handle the appeals. They are almost all black. Our Framers wrote the Constitution to make sure that black people stayed where they were. Yes, yes, I know we have an “Equal Protection Clause” and a whole bevy of communist laws from the 1960s that try to assure “equal rights” to blacks (Civil Rights Act of 1964, Voting Rights Act of 1965, blah, blah, blah). But come on, that’s all just guilty rhetoric. We never meant to allow a black man to become President. And I can assure you that neither Madison, nor Hamilton, nor Washington, nor Adams, nor even Lincoln ever dreamed that a black man would occupy the Oval Office. For the record, I am not a racist; I am just telling you about our traditions and original intent.

On the other hand, I can understand electing a black Vice President or appointing a black Supreme Court justice. After all, Justice Thomas poses no threat whatsoever to the American people. He just does what I tell him. But my God, the President controls the military. Would you trust Justice Thomas to control our nuclear arsenal? I know I wouldn’t (no offense to Justice Thomas; you’re a great guy and you play ball, but you’re not ready to wage war). And let me tell you, President Obama is not an easy-going black man who keeps his mouth shut like Justice Thomas. He is a firebrand radical who goes to Baptist churches that perform frightening quasi-voodoo rituals. And unlike Justice Thomas, he actually claims to understand constitutional law. Obama is not a pushover; he is a black liberal Muslim revolutionary. But I’m not going to let him destroy our country. He can kiss my white ass.

In times like these, even Supreme Court justices must take sides. In calmer days, it was easier for me to simply apply constitutional principles without political overtones. But today, I have a duty to protect America from Obama. I believe I am uniquely situated to repel Obama’s attacks on American life. Along with Chief Justice Roberts—who shares my commitment to resisting Obama—Justices Thomas, Alito and Kennedy have already expressed a desire to block Democratic initiatives. We no longer have the luxury to abstain from political disputes in Washington. We are the Third Branch. Obama controls the other two. That makes us America’s final defense against socialism and equality. Thankfully, our Framers foresaw times like these. They knew that radicals may one day control both the White House and Congress. And they knew that, in such times, only the Supreme Court could protect lasting principle against frenzied partisan radicalism. We are the antidote against revolutionaries like Obama and Nancy Pelosi. We refuse to allow Obama to reinvent American society. We refuse to allow universal health care, government bailouts, mandatory disability insurance or “free rides” for terrorists, illegal immigrants and killers. We are the last bulwark against humanity and progress. Without us, America will transform into Europe. If we do not fight back now, America will commit itself to decency, compassion and mercy.

I like America the way it is, Mr. Obama. You can kiss my white ass before you transform our country into France, Belgium or Holland. We do not want utopia. We want protected contract rights.

America needs leadership, not reckless reform. Neither the President nor Congress can effectively lead this country. For that reason, the Supreme Court must step in to correct the imbalance. Although I traditionally refrain from political disputes, desperate times demand desperate measures. Unless the Court acts now, there is no telling what damage Obama, Pelosi and deranged Democratic agency heads will do to this country. For that reason, the Court must use every constitutional weapon at its disposal to stop this madness. We must first abolish the Case and Controversy Requirement. See U.S. Const. Art. III, § 2. We do not have time to wait for an actual “ripe controversy” to develop in the lower courts. We must issue theoretical opinions today, not overly pragmatic, technical opinions ten years from now. Contrary to accepted rhetoric, we do have the power to decide political disputes. We have invalidated elections before. See Bush v. Gore, 531 U.S. 98 (2000). To stop Obama, we should follow that precedent. We must declare the election results from 2008 invalid, then name a new President. To support our decision, we must merely note the colossal threat Obama poses to the American order. President Obama has already breached his oath to support the Constitution (see Art. II, § 1, cl. 8) by violating the Contracts Clause (Art. I, §10, cl. 1) and the Due Process Clause (Fifth and Fourteenth Amendments). His bailout plans unfairly distinguish between citizens without justification. We can only expect that President Obama’s plans will continue to ignore the Constitution. We will not tolerate them. He can kiss all of our white asses (including Justice Thomas’, whose ass is—for all concerns and purposes—white).

Time will justify our outrage against President Obama. He has no respect for the Constitution because he is committed to liberty, equality, justice, compassion, mercy, humanity and honor. Our Constitution does guarantee such things; it guarantees only orderly government and healthy interstate commerce. We are Supreme Court justices. We know what the Constitution means. President Obama may have been an uppity Ivy League law professor with “opinions” about the Constitution. Opinions about the Constitution are like assholes; everybody has one. But only we know what the Constitution really means. It means what we say it means, because we know what the Framers meant. And I know for a fact that the Framers did not want a black man in the White House, nor did they want a government that saves people from their own bad decisions. Put simply, President Obama is a traitor to our traditions. He has not supported the Constitution, nor has he defended the values for which it stands. In our system, we imprison terrorists; we do not free them because Europe scolds us. President Obama may think he is “fighting for equality and justice” in America. But we say he is acting illegally.

I cannot sit by in good conscience while President Obama destroys our constitutional order. As a Supreme Court justice, I intend to use every means available to oppose him. He might control Congress and the White House. But he does not yet control this Court. I will lampoon, criticize, castigate, denigrate, insult, demean and denounce him until my dying breath. And I will invalidate any law he signs. I will revile any document bearing his signature. I owe him nothing. I have my job for life, and there is nothing he can do about it. See U.S. Const. Art. III, § 1. Chief Justice Roberts rightly declared that he will boldly oppose Obama at every available opportunity. I will go a step further. No longer will I refrain from political entanglements. It is time to get personal because Obama got personal with America. I hope President Obama is ready to rumble, because if he isn’t, he can kiss my white ass. He can expect no quarter from me—or Justice Thomas.

The era of judicial restraint is over.

OUR PROUD COLONIAL TRADITIONS : WHAT IS THE SUPREME COURT THINKING?

AN ESSAY

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.