I’ve read Justice Scalia’s dissent to this week’s Supreme Court decision that outlawed the death penalty for 16- and 17-year olds. (In 1988, the Court outlawed the death penalty for anyone under 16.) As often happens to me when I read Supreme Court cases, I start off with a one opinion and then read the opposing view and think, “Well, actually, he’s got a point, too.” I’m particularly susceptible to Scalia’s opinions in this regard, because — despite his arrogance — he’s such an effective writer. If only he would use his powers for good.
Scalia rails against Justice Kennedy’s majority opinion for saying, in Scalia’s words, that “American law should conform to the laws of the rest of the world.” Kennedy cited the fact that a majority of nations have outlawed the death penalty for minors as support for outlawing it in the United States as well. (Cultural conservatives must be furious with Kennedy, a Reagan appointee; in addition to this case, he also wrote the majority opinion in Lawrence v. Texas, which not only outlawed anti-sodomy laws but cited the European Court of Human Rights in doing so.)
Except what Kennedy wrote is not what Scalia said he wrote. Kennedy did not write that “American law should conform to the laws of the rest of the world” but that “[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” (My emphasis.)
Doesn’t it make sense to look outside our own nation when interpreting the Eighth Amendment? Any interpretation of the amendment turns on the phrase “cruel and unusual punishments.” One writer notes that the phrase “cruel and unusual punishment” first appeared in the English Bill of Rights of 1689. Shouldn’t it be okay to look outside our own nation in interpreting a phrase that we borrowed from another country? If “cruel and unusual punishment” no longer means in its country of origin what it used to mean, why should it be static in our own?
Scalia sarcastically writes that if we’re going to look at what Britain does, we should also follow Britain’s lead in “relaxing our double jeopardy prohibition” and “curtail[ing] our right to jury trial in criminal cases since, despite the jury system’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.” But double jeopardy and trial-by-jury are procedural issues. We’re talking about killing people. The fact that Scalia can’t make the distinction speaks for itself.
Anyway, we’re not talking about letting world opinion control us here; that’s just the icing on the cake. In any event, we shouldn’t ignore the rest of the world completely. I’m sick and tired of hearing about American exceptionalism. Our country is not inherently better than any other country. To believe otherwise is just childish.
And you know what? Screw constitutional interpretation and legal opinions. I think the death penalty is wrong, and that’s that. Killing someone when you’ve already got that person behind bars is unjustifiable. Scalia can bloviate all he wants about the right of “the people” to make their own laws. But if it’s democracy versus human life, I think human life should win. Scalia, unfortunately and unsurprisingly, is blinded by his ideology.