Part and Parsing: Why Antonin Scalia must be impeached.

In neo-fascist circles, Antonin Scalia is what passes for a major intellectual. I refuse to call him "Justice" Scalia because justice and Antonin Scalia don't belong in the same sentence. Like most ultra-right wing pseudo-intellectuals Scalia is well read but nothing that he's read penetrates the denser-than-a-black-hole certainty of his ideology. Mr. Scalia in interviews with Lesley Stahl and with the BBC has insisted that torture is not "cruel and unusual punishment". That terminology comes from, among other places, the 8th Amendment to the U. S. Constitution which reads in its entirety, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Mr. Scalia, being a "strict constructionist" and all, he obviously knows the language of the 8th Amendment. Since Mr. Scalia claims to be a legal scholar he obviously also knows the history that culminates in the 8th Amendment. He knows that it derives from the English Bill of Rights of 1689. He knows that the English Bill of Rights stems from nearly 400 years of almost constant civil war in England going back to the reign of Edward II. In those wars winners used such punishments as impaling their live opponents on stakes or drawing and quartering. Burning and beheading were also favorite forms of punishment. Of course, often as preparation for trial, what modern attorneys call the "discovery process", came torture, usually in forms that make water boarding look positively benign. Mr. Scalia's scholarship certainly includes reading in the history that led to the language of the 8th Amendment. Which is, of course, exactly the point. Mr. Scalia can read the history, read the records of the public debate leading to the 8th Amendment, read the entire history of the law's interpretation by our courts and have none of it penetrate his impenetrably black ideological certainty.

I do think that I understand Mr. Scalia's specious logic. I think he must be relying on a definition of punishment that beggars Bill Clinton's parsing of the word is. I believe that Mr. Scalia has convinced himself that punishment is something that follows adjudication. Since the people that we are and have been torturing over these last 7 years have not had an adjudication of their guilt or innocence, the torture is not, in Mr. Scalia's view, punishment per se. It may be cruel. It may be unusual, but absent an adjudication it cannot be punishment in the ideologocally benighted mind of Antonin Scalia.

In typical neo-fascist fashion, Mr. Scalia insists that what is sauce for the liberal goose can't even come close to the ultra-rightist gander. The Constitution which, as a "strict constructionist", Mr. Scalia believes does not enshrine a right to privacy does clearly enshrine a right to torture. He maintains this ideologically insane position despite the reading that clearly informs him that the right to privacy was of paramount concern to the framers of the Constitution and the Bill of Rights while torture was anathema to them.

Mr. Scalia lacks what is losely referred to as a "judicial temperament". His refusal to recuse himself from the deliberations in Cheney v. USDC for the District of Columbia shows that his ideology and friendships override his legal judgment when it suits him just as did his vote in Bush v. Gore. But now he has gone beyond the pale. He has shown himself willing to embrace the kind of "judicial activism" (albeit from the far right) and "moral relativism" so decried by his fellow neo-fascists. Once more we see that the people most apt to wrap themselves in the flag are those with the least respect for the Constitution that flag represents.

I would hope that my fellow Democrats and anyone with even modest respect for our Constitution, for civil and human rights would stop the nonsensical pursuit of a bill of impeachment against Dubya and Cheney and put that energy into a bill of impeachment against Antonin Scalia who is a clear and present danger to the U. S. Constitution.