| Entertaining as Scalia’s
histrionics may be, however, the mere fact that he
isn’t laughed off the bench is more than a little
troubling. Pragmatically, I support the recent incremental
steps limiting the death penalty, and if the Court
were to decide that the death penalty itself was a
violation of the Eighth Amendment, I’d think
it was a good move. But the justification, leaving
a bizarre opening to Scalia’s ridiculous arguments,
troubles me.
The jurisprudence surrounding “cruel and unusual”
has become, through long precedent, a process of assessing
what society’s consensus is on whether a given
punishment should be considered cruel and unusual.
Thus significant portions of Kennedy’s opinion
are taken up with discussions of how many states outlaw
executing teenagers and when they outlawed it, along
with mentions of international consensus and other
indications of agreement. Similarly, in the most recent
previous opinion knocking off another incremental
portion of the death penalty, in Justice Stevens’s
opinion for Atkins v. Virginia (2002) prohibiting
execution of the mentally retarded, the opinion is
appendixed by pages and pages of polling data.
Fighting fire with fire, Scalia’s dissents
to both cases are full of irate trumpeting of his
own interpretations of what constitutes a consensus—there
aren’t enough states prohibiting this type of
execution, it hasn’t been long enough to indicate
a stable consensus, you should only count state legislatures
to form a consensus, and so on. Scalia even (repeatedly)
insists that we shouldn’t count states who outlaw
the death penalty entirely in the “states that
think executing X group is cruel and unusual”
roll for the purposes of determining consensus. (I
guess Scalia’s much-vaunted legal brilliance
doesn’t extend to Venn diagrams.)
The problem I have with the whole discussion is
that, if taken to its logical extreme, the argument
demonstrates that there is no need for an Eighth Amendment
at all. The Court has agreed that the practices of
state legislatures are the best way to judge consensus,
and after that the arguments are all a matter of degree.
And who, really, is to say in principle that 26 states
form a more legitimate consensus than 50? Why shouldn’t
Scalia’s arguments that we need to see an overwhelming,
near-unanimous pattern of behavior to judge a consensus
hold water? (In fairness, he actually agrees with
me that changing societal consensus shouldn’t
be a basis for constitutional interpretation, but
his opinion is that the definition should be entirely
static—what was cruel and unusual in 1789 is
all that’s cruel and unusual now. So watch out,
7 year olds, the hangman’s coming for you next!)
Judging the meaning of the Eighth Amendment by opinion
poll is harmful because if our assessment of ‘cruel
and unusual’ is really societal consensus, then
there’s no reason to have it in the Constitution.
We might as well hold a referendum every year asking
people to tick boxes that fit what they think are
cruel and unusual, or go ahead with Scalia’s
demands for a rigorous demonstration of consensus.
Consensus, after all, is simply another way to phrase
majoritarian democracy.
The point of the Constitution is that it seeks to
prevent abuse of majoritarian power. Even if all 50
state legislatures were to pass a law tomorrow that
outlawed saying “President Bush is a moron,”
it would still be unconstitutional in violation of
the freedom of speech clause. Why should prohibiting
cruel and unusual punishment be different?
Scalia decries this type of thinking as legally
elitist, saying that it privileges judges over the
people’s democratically elected representatives.
But his issue shouldn’t be with the five Justices
on the other side of the vote on a particular issue—that
should be with the men who wrote the Constitution,
and the larger group of men who voted to ratify it.
Of course it privileges judges, but that’s the
point of judicial review. To argue with Scalia over
what constitutes a consensus seems like tacit approval
of approaching the Constitution as demanding a barometer
of public opinion, when it is meant to be principles
above the ebb and flow of daily majoritarian politics.
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