Scalia's Dissenting Rhetoric

The Supreme Court ruled today that state laws giving the death penalty for those under 18 were unconstitutional, in violation of the 8th amendment prohibition on cruel and unusual punishments. I'm not going to take a position either way on the ruling, since I really know nothing of the history or legal arguments. But I want to focus on the most fascinating part of Scalia's dissent in the case, where he uses - inconsistently, I will argue - the standard conservative rhetoric against the vague bugaboo of "judicial activism":

Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Josh Claybourn appears to agree with Scalia, when he says in making today's ruling the Court was "ignoring the voice of the people through representative democracy." But I think this is undue rhetoric. Isn't it true that any time the court overrules a law duly passed by a legislative body it is deciding that the judgement of the court determines the meaning of the Constitution, or whatever amendment is under consideration at the time, rather than the "will of the people" or the judgement of the legislature? Let's take the example of flag burning.

Scalia concurred in the 5-4 decision in Texas v. Johnson, the crux of which was the rather subjective question of whether symbolic actions like flag burning should fall under the fairly vague language of "freedom of speech" in the first amendment. In doing so, he subsituted his own judgement for the judgement of the legislature in Texas, and virtually every legislature in the nation for that matter. The polls also showed strong support for banning flag burning across America. So how is this different from the court deciding that the even more vague language of the 8th amendment was to be applied in a given manner here?

Perhaps one might argue that the key is in the word "subjective", that perhaps the court's ruling in the death penalty case was more subjective than the ruling in the flag burning case. I don't see any good reason to think so, but as I said I'm not up on 8th amendment history or jurisprudence to this point. Both the 1st and 8th amendments are written with very vague language that must be applied in specific situations, and in both cases legislatures and courts will sometimes disagree on how to interpret and apply such general provisions. If anything, the 8th amendment is even more general and vague than the 1st amendment and therefore more open to competing interpretations. But even if there was an objective means of determining that one interpretation is more subjective than another, all it really means is that the court is wrong, not that it's wrong for "ignoring the voice of the people through representative democracy."

That is the problem with this kind of rhetoric about the virtue of elected legislatures vs. unelected judges - it's only used when one disagrees with a decision. But even if one agrees with a decision, it's still unelected judges overruling elected legislatures, or in the case of the suit filed in California to stop the stem cell initiative or in Oregon to stop the assisted suicide law, unelected judges potentially overruling laws passed by a direct popular vote of the people. And if those cases win, many of the very same people who are screaming about the judicial activism of judges overruling legislatures will applaud them doing the very same thing (though I don't mean to imply that Josh will do so, as he is far more rational and consistent than the average person who uses this sort of argument). The only thing that changes is the outcome of the case and whether one agrees with it or not.

The ruling may very well be wrong, but unless one is going to argue against judicial review in all cases, the fact that the ruling substitutes the judgement of the court for the judgement of the people or their elected representatives has no bearing on that question.

Update: Much to his credit, Josh has updated his post with a link to this one and agreed that his rhetoric had initially "painted with an over-generalized brush to denounce all judicial review." That kind of intellectual honesty is why I read In The Agora regularly and why you should too.

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Josh Claybourn appears to agree with Scalia, when he says in making today's ruling the Court was "ignoring the voice of the people through representative democracy."

Poor Josh Claybourn. Unfortunately, he appears to be unable to recognize that that is the whole point of the Bill of Rights.

If enough of the people want to fry minors, they can get a constitutional amendment passed very easily.


In the realm of cruel and unusual punishment, you are going to find "activism" much more than in other realms. This is because the term "cruel and unusual," according to the Court, have to be decided by reference to "contemporary," and "evolving" standards. What's cruel and unusual in one day and age isn't necessarily so in another. At first glance, I don't think that's so absurd. Boring a hole through someone's nose, or branding them on the hand, and other very awful things, were considered perfectly legitimate at one time, and would now be pretty much universally considered cruel and unusual. A Scalia might reply that the death penalty for people who commit murder on their 17th birthday isn't as outrageous to the modern mind as is branding--and he would be correct, I think. But that doesn't change the fact that, at least to some degree, it is reasonable for the Court to say that the concept of "cruel and unusual" changes with time, and is a function of cultural values and mores. And if it is reasonable for the Court to do that, then the Court will engage in the bad things that people complain about when they use the sloppy term "judical activism"--such as, substituting their own personal views where the law ought to go.

My point is: 1) We ought to expect more of such things in the 8th Amendment context than elsewhere in the Constitution, because the concept of, say, "commerce" should not change the same way as the concepts of "cruel and unusual"; and 2) When people complain about "judicial activism," it is often a worthless complaint, but often their complaints are valid. In this case, I think the Court really has done something wrong. Not "activism," but a wrong analysis. The death penalty is simply not cruel and not unusual, for teenage murderers.

Here's the difference, as I see it. When the majority struck down a flag-burning law, they did so because the clearly expressed will of the Texas legislature conflicted with the somewhat less clearly expressed, but probably there, will of the American people as expressed in the Constitution. If a statute and the Constitution conflict, then of course the Constitution wins.

Today's case was nothing like that. No one seriously contends that an execution of a a 17 year old who committed an unprovoked, premeditated murder for sport violated anybody's idea of "cruel and unusual" punishment as that phrase was understood by the framers of the First Amendment. Even Justice Stevens's concurring opinion acknowledged as much. Rather than relying on what anyone thought the Framers of the Eighth Amendment intended, they focused on world opinion and a faux consensus among U.S. states, neither of which is a remotely constitutional basis for doing anything.

If only elected representatives can decide what the meaning of "cruel and unusual" is, then what was the point of writing the amendment? Was it just intended as a helpful suggestion?

Thank you, Ed, for continuing to blog this over and over. It needs to be repeated ad nauseum to liberals and conservatives alike, but especially the latter. Sometimes it seems as if only legal-minded libertarians like yourself understand just how asinine the non-criticism of "judicial activism" is. I harp this myself over and over to friends and acquaintances. Without judicial review of law based on constitutional standards, we're not a republic anymore. We're some kind of mob-ocracy, where anything goes as long as 51% of the population likes it. It's so dangerous, it's not even funny, and it irks me to here people lambasting the entire concept of judicial review just because they are upset politically with the outcome of a ruling.

I have never understood the "cruel and unusual punishment" arguments used against the imposition of the death penalty since it is clear from the Fifth Amendment that the Framers did not consider the death penalty to be in and of itself to be cruel and unusual punishment.

Amendment V

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 implication here is clear, Constitutionally speaking, as long as a defendant is given due process he/she can be deprived of their life.
If opponents of the death penalty want to change this they are going to have to amend the Constitution to repeal the "deprived of life" section of the Fifth.

Or have I missed something?

By Troy Britain (not verified) on 03 Mar 2005 #permalink

Troy: The Fifth and Eighth amendments apply to the states through the Fourteenth Amendment. While the Fifth does indeed speak to deprivation of life without due process of law, that is a distinct concept from "cruel and unusual" punishments. That is, the Fifth speaks in general terms about the process that is due before the state can decide to deprive someone of life; the Eighth is concerned with the manner and method by which that deprivation is carried out. Quite clearly, the founders had the idea that some punishments (not limited to, but certainly including, death) could be imposed in a cruel and unusual way, and the Eighth seeks to prohibit that. Of course, one can argue that any means of carrying out a death penalty is cruel and unusual (an argument that has been rejected), but I didn't understand your question that way.

The Fifth and Eighth amendments apply to the states through the Fourteenth Amendment.
Yes, I know.
Quite clearly, the founders had the idea that some punishments (not limited to, but certainly including, death) could be imposed in a cruel and unusual way, and the Eighth seeks to prohibit that.
Obviously torturing someone to death could qualify as cruel and unusual, and it seems clear, to me at least, that the Framers intended to prohibit exactly that sort of thing via the Eighth. However it seems equally clear to me (because of the Fifth) that they never intended the Eighth to prohibit capital punishment of any sort.
Of course, one can argue that any means of carrying out a death penalty is cruel and unusual (an argument that has been rejected), but I didn't understand your question that way.
And I have heard just that argument from opponents of the death penalty and could never understand how such an argument could hope to succeed given the implications of the Fifth Amendment. It seems to me that to argue this is to basically argue that the Fifth and Eighth Amendments are in contradiction. The Fifth clearly implying that capitol punishment is, in at least some cases, permissible, while the Eighth (under this interpretation) prohibits it in all cases.
On a related note, it was recently argued in a case here in California, that death by lethal injection was cruel and unusual because the condemned mans First Amendment right to free speech would be violated by the first part of the injection which renders him unconscious and therefore obviously unable to speak or express pain of any sort.

By Troy Britain (not verified) on 04 Mar 2005 #permalink