Whoo-wee, what a judge-and-pony show that was! Seriously, though, it was quite worthwhile to get to hear Mr. Scalia talk about his life, his judicial work, his long-time friendship with fellow Supreme Ruth Bader Ginsberg, undsoweiter. I doubt I had ever actually heard the man talk, only read his opinions and transcripts of his many sessions bumping uglies with the panoply of lawyers who have argued cases before the Court. He certainly seems like an intelligent person (the very, very least I would expect from someone in his position), and displayed a dry sense of humor that I did not expect.
He seemed to steer the interview—conducted by CBS’ Leslie Stahl—away from some of the more controversial rulings in which he has been involved as of late, only brushing up against them briefly (convincing his fellow justices to help hand the keys of the kingdom over to the Clown Prince comes to mind). He did however wax judicial on his personal philosophy of Originalism and how it might relate to questions of Constitutionality in certain high-profile instances. Abortion, for instance.
In fact, Judge Scalia brought up Roe v Wade in this context at least three times during the interview, stating over and over again that a woman’s right to an abortion was not outlined in the Constitution and should therefore not be protected as a right under the purview of that document. He goes on to say that legislation on the other end of the spectrum, making an unborn human fetus subject to all the protections of a fully-developed and delivered human being, would be equally unconstitutional. This is supposed to make him appear very even-handed and impartial, I imagine. However, this is the same guy who, after the overturning of Texas’ anti-sodomy laws in Lawrence et al vs Texas in 2003, in his written dissent groused that same “effectively decrees the end of all morals legislation”, which one must assume he believes to be a bad thing. Interesting then that the word “moral” does not appear in the Constitution anywhere. Neither do the words ethical, righteous, virtuous, or any of their derivations. So where does this impulse to protect “morals” legislation come from?
Funny, isn’t it, that the right of police to break into a home and arrest a couple of consenting adults for anal-genital copulation is no better represented in the US Constitution than is the right of a woman to an abortion, and yet Mr. Scalia interprets this most sacred of texts as being in support of one while in opposition to the other. Just sayin’ is all.
However, this was hardly the cake topper of the evening. That came when Stahl brought up the allegations of torture of detainees at Guantanamo Bay, asking Scalia whether such allegation, if true, would violate the Constitutional prohibition against cruel and unusual punishment. His answer, in a nutshell: no, because interrogation is not punishment.
I won’t bother adding the record-scratch noise to this post; just imagine that you’re hearing it now.
Okay, Tony, I think your slavish adherence to the letter of this most treasured of national user’s manuals certainly has its charms, with its heady, well-aged redolence of simpler times and better days, when men were strong and women were disenfranchised, etc, etc. But Originalism, much like a blisteringly literal interpretation of the Bible, simply must have its limits. Just as no rational human being believes that those who work on the Sabbath should actually be put to death, I think most folks would tend to agree that oh, say, breaking someone’s fingers during interrogation is by any reasonable definition a form of punishment, and a cruel one at that. If nothing else, it acts as a punishment for the “crime” of being in the wrong place at the wrong time. Even if one abandons this argument, there is the unimpeachable assertion that the freedom on the part of law enforcement to inflict bodily harm on a suspect during questioning will often as not result in a false confession and imprisonment. Under this scenario, is not the entire process, by its very nature, cruel and unusual?
It is just this sort of ossified, black-and-white thinking, masquerading as clarity of vision, that gives me a massive case of the crawls. I suppose it’s too much to ask that someone who has been appointed to the highest court in the land comport himself in a wishy-washy, shades-of-gray kind of way, particularly while being interviewed on a prominent national news program (even is Stahl did little more than lob him softballs; where’s Mike Wallace when you need him?). But going on national television and saying in front of God and everybody that torturing people isn’t unconstitutional because it isn’t punishment is just a hair too much clarity for my taste.
That’s the kind of clarity of vision that, in its purest form, makes the cattle trains run on time.