Diary: More On Rights And Justice Scalia

While it's not productive to beat a dead horse, as an adage tells us, verbally whacking a live Supreme Court judge is therapeutic for the soul for us who care deeply about the United States Constitution and the direction the nation has been on the past three decades. So I will take a shot at Justice Antonin Scalia because of his "philosophy" of "originalism" as it applies to the Eighth Amendment to the Constitution. How "originalism" applies to the body of the Constitution was covered in "Protecting Our Constitution From Those Who Would 'Save' It" : < click here > Scalia claims to adhere to the clear meaning of the Constitution and says judges must obey the specific intent and words of the Founders. Let's see how that works with the Eighth. The Eighth Amendment says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In a recent death-penalty case Justice Scalia sided with the majority indicting he doesn't fully understand the Eighth Amendment prohibition on "cruel and unusual punishments." The majority cited cases from the 19th Century which, on their face, were very cruel to moral people in the 21st Century, but modern understanding was brushed aside by the judges who used long-outdated standards. That decision was covered in the article "Supreme Court Botched Important Cases" < http://www.opednews.com/maxwrite/diarypage.php?did=8023 > so we won't revisit it now, but if the court will go back more than a century or longer for a definition of "cruel" it's only fair we also go back for a definition of "excessive." We will consider the "excessive" clauses of the Eighth to see how they apply to Scalia's views of originalism. The Fourteenth Amendment places prohibitions on the states in that it prevents states from abridging the privileges and immunities for all citizens of the United States or to deprive any person of life, liberty or property without due process of law or the equal protection of the law of all persons within a state's jurisdiction. Those three prohibitions cover most of the Bill of Rights. It must be noted here in a brief aside that the protection of "privileges and immunities" applies to citizens of the US. "Equal protection of the law" and "due process of law" apply to all persons regardless of citizenship or immigrant status. The creators of the Eighth knew what they were doing when they used "citizens" in one place and "persons" in another. That means under state jurisdictions people considered "illegal immigrants" or "undocumented aliens" must be treated exactly the same as citizens and have the same rights to due process and equal protection of the law, whether politicians like it or not. All issues with "illegal immigrants" must be dealt with by the federal government which doesn't have this equal-protection clause hindering it. In considering excessive fines and bail we first have to examine the Fifth Amendment's description of "due process." That amendment laid out due process as indictment, trial, conviction and punishment which means every thing in the Constitution relating to those four principles constitutes due process. Bail of the Eighth Amendment applies as part of due process. What was considered excessive bail at the beginning of the nation under its Constitution, impacts Scalia's concept of "originalism." Scalia, would apply that standard today if he were consistent with his stated beliefs, and one of his stated believes is that constitutional meanings never change. The Seventh Amendment sets $20 as the trigger point to invoke a trial in civil suits. That figure is ridiculously low by today's standards, but it does give us a clue as to what "excessive" might have meant by 1789 standards, when the proposed amendment was introduced, or by 1791 standards, when the amendment was adopted as an official part of the Constitution. There was no federal government department when the amendment was introduced in 1789 to keep track of economic statistics, but we can make an educated guess that the average annual income at the time amounted to a few hundred dollars or less, and a few thousand dollars was a fortune. When FDR first proposed a minimum wage in 1935 (struck down by a right-wing Supreme Court that didn't want government action trying to combat the Great Depression), the law set the minimum wage at 25 cents an hour, or about $500 a year for a full-time job. When the minimum wage was finally accepted in 1938 the minimum was still 25 cents. Suppose a man is charged with the kidnapping and rape of 7-year-old girls. As part of due process he is entitled to bail but that bail can not be excessive. If we are required to use 1787, '89 or '91 concepts of excessive bail it is just possible that $10,000 was excessive at that time, so the kidnap-rape suspect would have to be released on bail at a pittance instead of a logical amount in modern dollars. It is this type of ridiculous situations that would be caused by Scalia's concepts. The same problem exists for "excessive fines." Would a negligent company causing the deaths of numerous workers through sheer uninterest in their safety be fined $20? Is the deaths of a dozen or so miners in a mine collapse worth a pittance and would such a fine be of any deterrent to mine owner to avoid future deaths? The answers are obvious, as obvious as are Scalia's nonsensical views of our Constitution. Scalia flatly denies that the Constitution is the "living Constitution" that it must be to have the flexibility to accommodate changing definitions of unspecified value words as "cruel" or "excessive." If his standards were adopted across the board, the Constitution would be a static dead document. James Madison used the phrase "dead letter" in the Federalist Papers. Scalia got one thing correct. In a recent appearance of CBS's 60 Minutes newsmagazine program he told interviewer Leslie Stahl that the Eighth Amendment prohibition of "cruel punishment" didn't apply to interrogation techniques used on detainees in the "war on terror," appalling most people who heard the statement. As stated in other articles, the Eighth is an extension of the Fifth, Sixth and Seventh Amendments that cover trials, both criminal and civil, but which have little or nothing to say about punishments. The Eighth ties up those loose ends in that it discusses punishment following adverse judgments in trials, and since detainees aren't covered by the Fifth, Sixth or Seventh trials the Eighth's "cruel punishment" ban doesn't apply. This is one of few areas where Scalia doesn't completely suck as an interpreter of our Constitution. A mystery of our times is why the Harvard University School of Law would award this man a law degree. We can surmise why President Ronald Reagan championed him for the Supreme Court. Reagan also wanted Judge Robert Bork for the court, but enough progressives in Congress wouldn't accept that; why they accepted Scalia is puzzling. For those not fully aware, during the mid-1970s Watergate scandal, President Richard Nixon ordered his attorney general to fire independent special prosecutor Archibald Cox who was closing in on Nixon's subversion. Two principled Republicans (that's an oxymoron not heard in George Bush's America) refused and left their posts rather than subvert justice. Bork took the opportunity to fire Cox; justice be damned. That made him perfect in Reagan's eyes to sit on the Supreme Court. Apparently the ability to put politics above justice and a strong disdain for our Constitution were also factors in Scalia's selection and he proved that in the disastrous Bush v. Gore Supreme Court case that prevented the apparent rightful election winner from taking the presidency. The greatest act of patriotism Justice Scalia could perform is to leave the United States Supreme Court before he can do any more damage to our Constitution. The second greatest act would be to take the remaining members of the RATS faction (Roberts, Alito and Thomas) with him. An addition here that doesn't restrict itself to Scalia is the phrase "cruel and unusual punishment" that is constantly bandied about by everyone, except the author. The Eighth doesn't say that; it prohibits "cruel and unusual punishments." The "s" makes a huge difference to those who use the English language properly. Adjectives modify nouns; they never modify other adjectives. So the adjective "cruel" modifies the noun "punishments" just as the adjective "unusual" modifies the noun "punishments." That means that "cruel punishments" are forbidden and "unusual punishments" are forbidden. But for some reason, people who obviously didn't pay attention in high-school English classes constantly use "cruel and unusual punishment," which is not literate. If both adjectives are to be used, they must be compounded to get "cruel-and-unusual punishments." Apparently most Americans are as ignorant of their language as they are of their Constitution.