Conservative Justice Antonin Scalia routinely pretends that his approach to the law is merely to follow the clear language of the Constitution, and anyone who does not reach the same conclusions he does must be doing it wrong. In truth, however, Scalia’s rhetoric far more often just exposes how simplistic his vision of the Constitution truly is. Consider a speech he gave earlier this week at a conservative think tank:
Scalia calls himself a ‘‘textualist’’ and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.
So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn’t think so and neither does he.
‘‘The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,’’ Scalia said at the American Enterprise Institute.
This is the opposite of true, at least for someone who claims to take the text of the Constitution seriously. Take, for example, the death penalty. The Constitution prohibits “cruel and unusual punishments,” but it provides no other guidance on just how vicious a punishment must be to become “cruel” or how uncommon it must be to become “unusual.” Does the fact that the death penalty is increasingly rare in the United States meet the threshold of unconstitutionality? The Constitution doesn’t say.
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