Of Pods and Men: Thoughts on the U.S. Constitution

Wednesday, May 7, 2008

Some people, including a certain number of Republicans, wonder why I support John McCain and, in spite of his faults, will vote for him in November. It's because even if he's not as conservative as I'd wish, I am convinced he's an earthling and not a pod.

-- Burt Prelutsky

I have a new nominee for pod person. Nat Hentoff writes: "On April 17, the U.S. Supreme Court -- by a walloping 7-to-2 majority in Baze v. Reese -- declared constitutional Kentucky's method of death penalty by lethal injection..." and he has plenty to say about that decision. Read the full article here:
"http://worldnetdaily.com/index.php?pageId=63537" and see whether you identify any evidence of extra-terrestrial reasoning.

Vaguely recognizing the name, but not knowing anything about Hentoff, I followed a google link to that great repository of information Wikipedia: "http://en.wikipedia.org/wiki/Nat_Hentoff". There, I found that Hentoff describes himself as "a Jewish atheist civil-libertarian pro-lifer." A glance at his biographical notes suggests that he is a very respectable thinker, consistently applying his civil libertarian values to speech on both sides of the political spectrum. He is also pro-life.

He also argues against capital punishment, but I can respect that view, particularly since he is also against abortion and euthanasia. I find it incomprehensible that one could be (as many American liberals are) for killing the innocent yet against killing the guilty. I am against killing the former and for killing the latter, but it seems perfectly reasonable to be against killing either.

The problem is with his reasoning on the Constitution. Read again the pith of Hentoff's argument:

But after 33 years on the Court, Stevens did, however, scandalize Thomas and Scalia by calling for the actual abolition of the death penalty! "I have relied," he said, "on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible or social public purpose. (Such a penalty) is patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

His colleague, Scalia, exploded: "What prompted Justice Stevens to repudiate his prior view and to adopt the astounding position that a criminal sanction, the death penalty, expressly mentioned in the Constitution, violates the Constitution?"

Has Scalia -- an "originalist" to whom the Constitution's language, as written, is strictly determinative -- forgotten that our founding document does not include Negro slaves as "free Persons" with constitutional protections? That no longer being the case, the Constitution is not entirely frozen in time.

And he concludes by commending a quote from early Chief Justice John Marshall: "a Constitution ... is intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs".

Now, I sense the occasional penumbration of judicial activist thinking, but to read it in black and white is breath-taking. Let's take this argument apart. Supreme Court Justice John Paul Stevens, a liberal nominated by a Republican president, has reached the conclusion that capital punishment is "pointless and needless" and therefore "excessive and cruel and unusual," violating the Eighth Amendment. For reference, here is the text of the amendment in question:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the amendment begs the question: what sort of bail or fine is "excessive"? And what sort of punishment is "cruel and unusual"? Justice Stevens suggests that any form of capital punishment fits the bill. I am not sure I can understand what definition of "unusual" capital punishment would fit, since it has been a staple in Western Civilization and in cultures throughout the world for centuries. Hardly what I would call rare. Perhaps Justice Stevens understands "and" in the sense of "or" and finds that capital punishment is "cruel". He can then describe the death penalty as "cruel [or] unusual" punishment and thus discover that it violates the Eighth Amendment.

But just one minute, says Supreme Court Justice Antonin Scalia, the only Reagan nominee who has remained conservative, how could "cruel and unusual punishments" possibly refer to the death penalty across the board when the Fifth Amendment--adopted simultaneously with the Eighth Amendment--makes two references to capital punishment?

For reference, the Fifth Amendment:

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.

The Fifth Amendment mentions "capital" crimes and crimnals "deprived of life." How, then, can the Eighth Amendment's "cruel and unusual punishment" possibly include all capital punishment? Three quarters of a century later, the Fourteenth Amendment again mentions depriving "any person of life ... without due process of law."

Here is where alien wisdom comes to Justice Stevens' rescue. Scalia errs, because he is an "'originalist'"--apparently a moniker deserving of quotation marks--who thinks the language of the Constitution is "strictly determinative" and "frozen in time." Scalia assumes two things that Hentoff finds offensive: (1) that the Constitution should be interpreted according to the intentions of those who wrote it, and (2) that the best determiner of original intent is the language of the document itself.

But this is a bad, archaic idea, suggests Hentoff. After all, the Constitution did not originally abolish slavery. And I might add to Hentoff's argument that the Constitution did not guarantee suffrage for blacks or for women. Nor did the Constitution permit income taxation. Nor did the Constitution establish Prohibition. Nor did it repeal Prohibition. Whatever would we do if we didn't have Supreme Court justices who could mold the Constitution as a living document? Wait a minute. Isn't that what amendments are for? The U.S. Constitution is indeed a living document. It is a living document, because it can be amended. And it has been amended--27 times.

If the people of the United States overwhelmingly agree with Nat Hentoff and Justice Stevens that capital punishment should be abolished, such a change could be accomplished with an act of Congress. Even the means of amending the Constitution could be amended. We could amend the Constitution such that the Supreme Court can amend the Constitution at will. But until we do so, it is the duty of the judiciary to interpret the law, not write it. The rule of law is meaningless unless the words with which the law is written are "determinative" and their meanings "frozen in time." If you want to change the law, change the words. Don't pretend to change the definitions.

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