Esoteric Dissertations from a One-Track Mind

February 14, 2008

Scalia’s Interview with the BBC

Filed under: politics — Tags: — codesmithy @ 12:35 pm

Supreme Court Justice Antonin Scalia did an interview with BBC Radio 4 Program “Law in Action.” In the interview, Justice Scalia talked about the death penalty and torture. His originalist stance on the 8th amendment, namely “cruel and unusual punishment” on the surface seems fair. However, the argument is not whether the death penalty per-se is prohibited, but rather does executing someone via lethal injection or the electric chair constitute cruel or unusual punishment. The answer to that question will not be found by looking back at founding fathers, nor particularly insightful. With modern medical knowledge, we can discover facts about a person’s final moments that simply were not known at the time it was introduced. Moreover, with the advancement of DNA fingerprinting, we are finding an astonishing number of people, particularly in capital punishment cases, wrongly convicted of crimes. Was it not cruel or unusual punishment for the people we executed later to find they were not guilty?

The point is “cruel and unusual punishment” was one of those things left intentionally vague, so judges have the freedom to interpret it according to currently available evidence. So, when Justice Scalia points to originalism for his decision, we must also consider which evidence he chooses to ignore.

His most reactionary positions expressed in the interview were on torture and Guantanamo. He expressed his fascination with a ticking time-bomb scenario and extended it to cover what has become known as enhanced interrogation techniques for the typical Bush apologist stance. The argument is convoluted. Torture, something that is specifically banned under U.S. Code and Geneva Conventions, is also illegal as a punishment by the 8th amendment, but according to Scalia ,because the accused hasn’t been convicted of anything yet, it isn’t punishment, so it isn’t illegal. Is this man really a Supreme Court Justice? The 5th amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. (source)

“No person shall be… deprived of life, liberty, or property, without due process of law.” In other words, one can’t be punished by the government without having their day in court. Yes, there are some complications, but those are covered under due process, and other amendments make further guarantees. The language surrounding “life, liberty, and property” is slightly less clear today, but Scalia, as a Serious scholar and originalist should know that it comes from Locke’s “Second Treatise of Government.”

Man being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of Nature, equally with any other man, or number of men in the world, hath by nature a power not only to preserve his property- that is, his life, liberty, and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. (source)

Life, liberty and property are not separate guarantees. They are a package that Locke builds up in his work. Locke is talking about a person’s welfare when he says “life, liberty, and estate.” The founders took many of Locke’s ideas wholesale, as they clearly did in this instance, the wording was changed slightly. However, what they meant is perfectly clear. Justice Scalia is flat-out wrong on this point. No harm can come to a person but by those of punishment for a crime and the minimum of necessary evils needed to support due process. Torture to gather information is a non-starter. He may think slapping someone around is justified, but that isn’t the law and something the founders explicitly prohibited.

The other surprising point was about Guantanamo. Justice Scalia is correct that certain guarantees are not made to all citizens. But, on the other hand, the intent of the judiciary is to check the powers of the executive branch. The executive branch does not become judge, jury and executioner just because they secured some “safe-haven” somewhere else. They are still officers of our government and subject to our laws. I would like him to point to the passage in the Constitution which says U.S. laws don’t apply in territories underneath our direct control. However, this hole will probably have to be patched up via a Constitutional amendment.

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1 Comment »

  1. […] in American politics without invoking the illustrative and disastrous example from the past.  When a Supreme Court Justice defends the use of torture as an interrogation tactic, what is the substantive difference?  How can due process exist if the judicial system will […]

    Pingback by Keith Olbermann FISA Special Comment for 2/14/08 « Esoteric Dissertations from a One-Track Mind — February 15, 2008 @ 2:25 pm


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