I Got The Eighth Amendment Blues

Before I end my Weekend At Ezra's, there's one issue that I've been really eager to put before you, his faithful readers. The category is Legal Philosophy.

Michael McGough, who I'm pretending is Dahlia Lithwick because I have a terrible schoolboy crush on her, argues that the Ten Commandments cases are transforming Antonin Scalia, wolfman-style, into a devotee of the "Natural Law" school of legal philosophy. Although this shift in philosophy is news, the underlying fact that Scalia is crazy as a moonbat pie really isn't, so whatevs.

I've written about this topic before; my previous posts on
the topic are here,
here,
and (sort of) here. But the thing I want to address here is this: The whole Ten Commandments thing was interesting, but there was also another controversy that braced the Court recently. I am speaking here of the kerfluffle over the death penalty for juveniles, in which the majority opinion rested (somewhat uncontroversially) on the Eigthth Amendment, and (totally super-duper-controversially) international legal opinion. But if McGough is right about Scalia, who is also an ardent internationalist anti-internationalist, I think Scalia's in kind of a pickle. Here's why.

Scalia argues that the SCOTUS should not look to international opinion as a substitute for the guiding imperatives of the Constitution. This is, to put it lightly, a trivial observation. No one that I can think of has proposed abrogating the Constitution in favor of any other source. Certainly, I haven't. But, looking at the Eigthth Amendment, the thing begs for some interpretation. Even the most hardened strict constructionist couldn't argue for interpreting the phrase "cruel and unusual punishment" as the founders - who found slavery and mass disenfranchisement palatable - would have.

So, what to do with it? The anti-internationalist would probably argue for strict attention to emerging American standards of justice. But this is where Scalia's naturalism, and that of anyone who defends the Ten Commandments monuments on the grounds that our laws come from god, comes in. If one really believes that our rights come from god, doesn't that make everyone in the world - not just Americans - essentially rights-bearers? Assuming Scalia doesn't believe in a god that only grants rights to Americans, where does natural law leave the anti-internationalists? It seems like if you want to consider what constitutes a violation of human rights - which is what the Eighth Amendment asks us to do - the naturalist view obliges you to pay attention to the considered opinion of everyone in the world. If you're a naturalist, in other words, is there any argument that allows you to avoid consulting international legal opinion?

- Daniel A. Munz

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