Monday, November 14, 2005

Breyer v. Scalia

[A brief teaser from “The Language of Enlightenment,” a lecture I’ll be delivering at Stetson University in DeLand, Fla., tomorrow evening as part of Stetson’s Values Council Lecture Series]

It’s a battle for the ages: The Enlightenment as we knew it hangs in the balance, and it doesn’t look good.

If you look at the United States Supreme Court, you can actually see the battle like a spectator at ringside. In one corner, you have Justice Antonin Scalia, believer in God, the death penalty and originalism, in that order. In another corner, you have Justice Stephen Breyer, advocate of what he calls “the Living Constitution,” or “Active Liberty,” which is actually the name of the book he’s just written to define what he means, and to answer A Matter of Interpretation, the book Scalia published a few years ago to mark his territory. Breyer believes that the Framers didn’t write the Constitution as a static document to reflect their time only. They wrote it generally enough to apply universally in the service of two pragmatic goals: To protect liberty and to expand democracy and the ability of people to participate in democracy. “They wrote a Constitution that begins with the words, ‘We the People.’ The words are not ‘we the people of 1787.’” Scalia would disagree totally about the idea that the Constitution was an engine of democratic nation-building. He believes in the fundamentalist principle that what words say is what they meant at the time when they were written. “The text is the law, and it is the text that must be observed.”

Breyer wants the Constitution to reflect the world of 2005. Scalia wants the Constitution to stick to the meanings of 1787. Scalia thinks Breyer’s approach is blasphemous. He calls it “dice-loading,” or smuggling new rights that aren’t in the original text. Breyer thinks Scalia’s approach is “wooden,” or that it operates “in a vacuum,” whereas “in the real world, institutions and methods of interpretation must be […] capable of translating the people’s will into sound policies.” So who’s right? What you have here is not a failure to communicate. What you have are two radically different views of the purpose of both democracy and the Constitution.

Breyer believes in the Enlightenment’s principle of progress. He thinks human beings are perfectible, and democracy, guided by the Constitution, is that road to progress. Do we want to be a progressive society or do we not? For Breyer, the language of the constitution answers the question in a big, enlightened Yes. Justice Breyer would agree with Chief Justice Earl Warren, who said in a 1958 opinion that the Eighth Amendment ban on cruel and unusual punishments “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Breyer would interpret the entire Constitution according to those standards, and he’s not afraid to look abroad for ideas about who’s maturing more brightly. Scalia is radically opposed to that view. “I detest that phrase,” he said this year about the Earl Warren opinion. “I’m afraid that societies don’t always mature. Sometimes they rot.” So if the notion of progress is not written into the Constitution, he doesn’t want to hear about it. In Scalia’s view, the question of whether we want to be a progressive society is itself unconstitutional. If the death penalty was allowed in the eighteenth century, it should be allowed now. If it was allowed for juveniles and for mentally retarded people, and it was, it should be allowed now, because the framers couldn’t possibly have had capital punishment in mind when they proscribed “cruel and unusual” punishment. If you follow that sort of thinking, then if Florida wants to bring back branding and mutilation and banishment of criminals, it should be OK because it was common in the late 18th century.

But what am I saying? We essentially have branding and banishment in Florida now the way we treat sexual offenders, who are being literally banned from living in certain cities and are publicly branded on the Internet and on school walls. In 1779 Thomas Jefferson, proposed to eliminate the death penalty altogether except for treason and murder. It was being meted out for rape and sodomy at the time. For those, Jefferson proposed castration instead. And “for a woman who committed sodomy," Lawrence Friedman writes in Crime and Punishment in American History, "he suggested drilling a hole at least one half inch in diameter through the cartilage of her nose,” and for people who maimed or disfigured someone, he proposed maiming them and disfiguring them in kind. This is Thomas Jefferson, who was the Enlightenment in America. So if he didn’t think that sort of barbarism wasn’t cruel or unusual back then, does that mean it’s OK now? Scalia puts it this way: Maybe it’s not OK. But the Constitution does not ban it. Orthodoxy. Dogma. Constitution.

This is not theory we’re dealing with, but an interpretation of law that has direct bearing on our day to day lives. And it is an interpretation of law that the president loves, and that his new appointee and nominee to the court also love, potentially even more aridly than Scalia does. The president has three years to go, and very possibly one or two more appointments to the court, this time from the so-called liberal wing. John Paul Stevens is 85. Ruth Bader Ginsburg is 72. Last year Adam Cohen, an editorial writer at The New York Times imagined America “if George Bush chose the Supreme Court.” Here’s the picture he came up with: “Abortion might be a crime in most states. Gay people could be thrown in prison for having sex in their homes. States might be free to become mini-theocracies, endorsing Christianity and using tax money to help spread the gospel. The Constitution might no longer protect inmates from being brutalized by prison guards. Family and medical leave and environmental protections could disappear.”

But it’s not all a matter of if. The groundwork for this rollback has already been laid. By appointing justices in his rather fundamentalist image, the president is only fulfilling scriptures as he understands them. That explains, I think, why we are becoming harsher, meaner, nastier society than we ought to be, and why we’re not exactly in a position to be preaching democracy and Enlightenment to the rest of the world right now.