So, let's bracket the question whether Justice Scalia's recent comments on torture, punishment, and the Constitution were as judicious and careful as we'd like judges' comments to be. And, let's also take as given that all of us here at MOJ do not believe that torture, even if effective, can be justified with reference to its expected (or actual) good consequences. What, exactly, did Justice Scalia say and why, exactly, was he wrong?
Start with this:
[Justice Scalia said that] aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.
''It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that,'' Scalia told British Broadcasting Radio Corp.
Now, it would be absurd (wouldn't it?) to say that precisely the same constitutional (and extra-constitutional) regulations that apply to garden-variety interrogations of suspects must apply, in the same way, to a "ticking timb bomb" interrogation. (No, to point this out is not to say that, in the "ticking time bomb" scenario, morality does not bind or anything goes.) So, what do we think the public authority could do differently in the ticking-time-bomb scenario? We need not -- as a moral matter, putting aside whatever the current constitutional-law doctrines might be -- it seems to me, issue Miranda warnings and call lawyers. And, I would think, we may use more aggressive techniques than we would otherwise want to use. No, we cannot torture, no matter what. But, are we sure it would be immoral to "smack in the face" someone we thought was hiding the ticking bomb? It seems to me that "waterboarding" is on the other side of the line. But, is a smack in the face?
Here's more:
Scalia said that determining when physical coercion could come into play was a difficult question. ''How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction,'' he told the BBC's ''Law in Action'' program.
Isn't Justice Scalia right here? That is, it *is* a "difficult question" -- isn't it? -- to determine "when physical coercion could come into play" and to determine the moral limits to the "coercion" that could ever be employed. Does anyone think these are "easy" questions? We all agree that human-dignity commitments constrain what may be done, even for good purposes, and even to bad people. But, we would justly be criticized (using Scalia's term) as "smug" if we suggested that these commitments translate easily, neatly, and non-controversially to interrogation regulations.
There's this:
''Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth.''
Right again, right? It is immoral, I believe, to punish someone with indefinite incarceration; it is not immoral to detain someone who refuses to give information to which the public authority has a legitimate right.
With respect to the death penalty (which I oppose), Justice Scalia said:
''Europeans get really quite self-righteous, you know, (saying) 'no civilized society uses it.' They used it themselves -- 30 years ago,'' he said, adding that a majority of Europeans probably supported capital punishment anyway.
The first point is obviously correct. And, with respect to the second, it is, in fact, the case that the abolition of the death penalty in Europe was not brought about democratically, and that there is more popular support in Europe for capital punishment than European nations' legal regimes would suggest.
So, and again -- torture and the death penalty are, in my view, wrong. And, I would rather Justice Scalia not amuse himself by being quite as candid and provocative as, it seems, he likes to be. Still . . . to say this is not at all to establish that what he actually said is wrong.
Monday, February 11, 2008
What do, or should, we think of this? Ruth Gledhill has some sharp criticisms of the Archbishop of Canterbury's recent suggestion that aspect of shari'a law be adopted into British law, in the interest of maintaining "social cohesion." (The article has lots of links.)
Continue reading
Sunday, February 10, 2008
Here's more information about a conference, on religious freedom and church-autonomy, that will be of interest, I suspect, to many MOJ readers. If you are in or near DC, please consider attending. The invited presenters make up a rock-star list: John Garvey, Patrick McKinley Brennan, Kenneth Grasso, Carl H. Esbeck, Nicholas Wolterstorff, Thomas C. Berg, Ira C. "Chip" Lupu, Robert W. Tuttle, Michael P. Moreland, John H. Mansfield, Douglas Laycock.
Here's a summary of the agenda:
Church autonomy issues are at the forefront of contemporary debates in church/state law. Such issues arise whenever the government seeks to impose a regulatory burden on a church or any religious organization. Often the regulatory burden comes in the form of generally applicable legislation that is facially neutral with respect to religion. The regulation may also take place through developments in the common law, such as claims sounding in tort, contract, trust, or real property.
Some of the pressing topics in the area of church autonomy include ministerial exceptions to employment discrimination claims, IRS tax exempt status and political speech, unconstitutional conditions on public benefits, and bankruptcy litigation. An older and still important line of cases deals with intra-church disputes in which two factions litigate ownership of church property. Finally, there is the matter of tort claims against a church for clergy sexual abuse, a particularly difficult area that has arguably eroded the scope of church autonomy in other contexts.
To explore these issues in detail, the Federalist Society has gathered some of the leading law and religion scholars in America. Among the topics addressed at the conference will be the theological and historical roots of church autonomy in both the Catholic and Protestant traditions, the constitutional basis for the church autonomy doctrine in the First Amendment, and particular applications of church autonomy in torts, employment, and other areas of law.
As Michael S. just noted, Professor Bill Stuntz has a characteristically thoughtful essay, "The Inconvenient Truths of 2008," over at The Weekly Standard. Professor Stuntz writes -- and I agree -- that conservatives need to understand the "inconvenient truth" that "[m]ost of today's illegal immigrant population is here to stay (along with their descendants) and will pay no significant price for getting here outside the legal channels." (I would note that not all conservatives share the talk-radio obsession with "the illegals", and also that -- although the press, conveniently, does not remark on the fact much -- there is plenty of anti-immigrant sentiment among the Democrats' "base", too.) And, he seems right-on-target in reminding Democrats that for "the foreseeable future, domestic policymaking will have more to do with arranging incentives than with dispensing largesse[.]"
He also contends, though -- echoing the argument he has made in other contexts -- "that the political phase of the culture war is over", that "the crusade to end abortion and reform the culture by means of electoral politics was lost several election cycles ago", and that "[i]f pro-life evangelicals--of whom I'm one--wish to persuade our fellow citizens to protect unborn life, we must persuade them, not prosecute the ones who disagree."
Now, we have discussed Prof. Stuntz's thesis about the legalization of abortion, abortion rates, and legal moralism here at MOJ before (for example, here, here, and here). And, he is right to remind us that "cultures are powerful and mysterious things; the idea that laws and politicians can direct their paths is, to say the least, lacking in empirical support."
That said, a few thoughts: First, no one has ever suggested that those who "disagree" with the pro-life position should be "prosecute[d]." It is sometimes suggested that the law should permit the prosecution of those who perform certain abortions, on the theory that abortion involves an act that, usually, we think is eminently prosecution-worthy, i.e., the direct and intentional killing of a human being. Prof. Stuntz is entirely right that those who are pro-life should not focus entirely on politics, to the neglect of witness. (And, pro-lifers should conduct themselves in politics in a way that does not undermine efforts to be effective witnesses.)
Second, although I fear Prof. Stuntz is right that it is not now the case, and perhaps never will be (again), that the public would support a full-scale criminalization of abortion. It does not follow from this, though, that the "political phase" of the pro-life movement is over. It is still the case that a great many issues (federal funding, mandates to hospitals, development-aid, regulation of abortion facilities, ultrasound machines, partial-birth abortion, etc.) that pro-lifers do (or should) care about are very much "political", and very much "in play." I know it is popular, in some circles, to say that President Bush's anti-abortion views have not made a difference on the issue, but this mistaken claim (which, to be clear, is not Prof. Stuntz's) gets no truer with repetition.
Finally, there are the judges. The "political phase" of the "culture war" -- I should say that I'm not entirely comfortable with this way of thinking about the struggle to protect religious freedom and the dignity of human life -- is not over, because it has not really been permitted to begin. It is a live, and entirely political, question who will be (and who will pick) our federal judges, and it is a live question whether our federal judges will decide to let the political process decide whether, and to what extent, to regulate abortion. If Roe is reversed, would abortion disappear? Of course not. But, pro-lifers do and should care that they be permitted to take a shot at the "political phase" of the pro-life struggle. This is why judges matter, and this is why politics (still) matters. For some, it might be an "inconvenient truth", but it is a truth nontheless -- it matters, for the pro-life cause, what happens in politics (as well as in conversation).
