I AM THE CONSTITUTION
Among the stories that rank high in the pantheon of American political anecdotes is one told about Frank [Boss] Hague, mayor of Jersey City, New Jersey, from 1917 until 1947.
One day during the mayor’s reign, two juveniles were arrested for truancy. Brought to a police station where Hague was visiting, the boys told him they’d rather go to jail than back to school. Hague ordered that they be found jobs, but was told the law wouldn’t allow it because they were too young. The mayor’s classic response was: “Listen, here is the law! I am the law. These boys go to work!”
For at least the last half-century, judicial equivalents of Mayor Hague have sat on the Supreme Court of the United States, including “I-am-the-law” Chief Justice Warren and Justices Douglas, Marshall, Goldberg, Fortas, Ginsburg, Brennan—and of course John Paul Stevens.
Elsewhere, I have characterized Justice Brennan as the High Priest of the “Living Constitution” doctrine because, according to him, the Constitution of the United States of America “embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. * * * When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.” (My emphasis.)
Brennan’s successful promotion of constitutional-interpretation-by-collectivism has had a devastating effect on American constitutional law, on our previously shared cultural principles, and on the moral premises upon which this nation had long rested before the Living Constitution doctrine became ascendant.
Part of the reason for that devastation is because a “Living Constitution” is anti-democratic. It removes from the public forum and politically accountable officials, and thus from the electorate itself, important issues of social, economic, and other policy, and instead vests those issues in federal judges, especially in the Supreme Court’s nine unelected philosopher kings and queens who are appointed for life and accountable to no one.
Yet, when the Living Constitution’s acolytes invented new constitutional rights—e.g., abortion, affirmative action, police Miranda warnings, the right to travel—at least they apparently saw a need to nod to the Document itself, even as they twisted the facts and fudged the law. State abortion laws went down because of an alleged constitutional “right to privacy,” affirmative action was mere constitutional “equal protection,” Miranda warnings were constitutionally necessary to prevent “self incrimination,” the right to travel (and receive government handouts) was rooted in . . . constitutional “whatever.”
But now, at least for Justice Stevens, the nodding to the Constitution is over—as he shockingly revealed in the just-decided in Baze v. Rees, the Kentucky Lethal Injection Case. Now, Justice Stevens has moved from Frank Hague’s “I-am-the-law” to “I-am-the -Constitution.”
According to the syllabus prepared by the Supreme Court’s Reporter of Decisions in the Baze case, “Petitioners, convicted murderers sentenced to death in Kentucky state court, filed suit asserting that the Commonwealth’s lethal injection protocol violates the Eighth Amendment’s ban on ‘cruel and unusual punishments.’ The state trial court held extensive hearings and entered detailed fact findings and conclusions of law, ruling that there was minimal risk of various of petitioners’ claims of improper administration of the protocol, and upholding it as constitutional. The Kentucky Supreme Court affirmed, holding that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.”
To understand the Court’ ruling—which affirmed the decision of the Kentucky Supreme Court—a scorecard helps.
Chief Justice Roberts wrote an opinion for himself and Justices Kennedy and Alito. Essentially, they ruled that the Court had previously upheld capital punishment, that the Court’s cases had created a framework for evaluating the constitutionality of certain kinds of execution, and that the Kentucky protocols satisfied the constitutional requirements.
Justice Stevens concurred with his three colleagues as to the result—affirmance of the Kentucky Supreme Court decision—but somewhat grudgingly. He wrote that “[t]he conclusion I have reached with regard to the constitutionality of the death penalty itself [that it is unconstitutional] makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents [holding the death penalty constitutional] that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents . . . I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.”
We will return to Justice Stevens’s concurring opinion in a moment.
That made four votes to affirm the Kentucky Supreme Court.
Justice Breyer, too, despite reservations about the death penalty, voted to affirm, on the ground that the Kentucky protocols were simply not “cruel and unusual” punishment.
That made five.
Justice Thomas, in a concurring opinion joined by Justice Scalia, voted with his five colleagues to affirm, making it seven who agreed about the result.
However, unlike Chief Justice Roberts and Justices Kennedy, Alito, Stevens and Breyer (let alone Justices Souter and Ginsburg who dissented), Thomas’s concurrence in the Court’s judgment (joined by Scalia) shone an Originalist spotlight on “the plurality’s formulation of the governing standard” by which to assess the constitutionality of methods of execution. Justice Thomas rightly concluded that that standard “finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in this Court’s previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve.”
While Thomas’s development of this point is yet another fine demonstration of his Originalist analysis at its best, this essay is about Boss Frank Hague and Justice John Paul Stevens—and for that discussion I must turn to Justice Scalia’s opinion concurring in the result reached by his plurality colleagues.
Scalia could simply have concurred in the judgment, and his vote would have been one of the seven that affirmed the decision of the Kentucky Supreme Court.
But several things were—rightly!—bothering him. It was Justice Stevens’s separate opinion concurring in the judgment.
He began by taking issue with Stevens’s dubious policy statement that “[T]he imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,” noting that “[t]his conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes.”
Next, Scalia turned to his colleague’s railing against the death penalty per se—a quarrel with both the Constitutional text and Supreme Court decisions (in which Justice Stevens had joined): “But of all Justice Stevens’ criticisms of the death penalty,” Scalia wrote, “the hardest to take is his bemoaning of ‘the enormous costs that death penalty litigation imposes on society,’ including the ‘burden on the courts and the lack of finality for victim’s families.’ * * * Those costs, those burdens, and that lack of finality are in large measure the creation of Justice Stevens and other Justices opposed to the death penalty, who have ‘encumber[ed] [it] . . . with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it’—the product of their policy views ‘not shared by the vast majority of the American people.’”
By themselves, these comments by Scalia were more than enough to devastate Justice Stevens’s hypocritical whining about the death penalty and its consequences.
But Scalia was just getting warmed up, and in his next comments he drilled into the core of what was, by far, the worst part of what Justice Steven’s concurring opinion revealed about himself, his view of the role of the Supreme Court, and the Constitution of the United States of America.
Justice Scalia’s words deserve to be quoted in their entirety: “As Justice Stevens explains, ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. * * * I have relied on my own experience in reaching the conclusion that the imposition of the death penalty’ is unconstitutional.’ [Emphasis in original] * * * Purer expression,” Scalia continued, “cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as ‘the product of habit and inattention rather than an acceptable deliberative process.’ * * * The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. * * * The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a ‘thirst for vengeance. * * * It is Justice Stevens’ experience that reigns over all.” (My emphasis.)
Even Boss “I-am-the-law” Hague could never have contemplated that a Supreme Court justice would have the arrogance to believe that “I am the Constitution.” But, then, in his day there were no High Priests who worshiped at the altar of the “Living Constitution” and reveled in their own omniscience.