Scalia, Breyer Bandy About How to Decide
Cases
By BETSY BLANEY
LUBBOCK, Texas
-- One of the most conservative justices on the
U.S. Supreme Court and one of the most liberal
ones sparred Friday over capital punishment, the
direct election of senators and various other
constitutional questions during a rare public
debate that highlighted their philosophical
differences.
Antonin Scalia,
74, the longest-serving current justice,
appointed by Republican President Ronald Reagan,
and Stephen Breyer, 72, appointed by Democra Bill
Clinton,
shared the stage in front of a crowd of
thousands during a West Texas event organized by
They
particularly clashed on the question of capital
punishment.
Scalia argued
that while there's room for debate about whether
the death penalty is a "good idea or a bad
idea," it is not cruel and unusual punishment.
"There's not an
ounceworth of room for debate as to whether it
constitutes cruel and unusual punishment
because, at the time the Eighth Amendment was
adopted - the cruel and unusual punishments
clause - it was the only punishment for a
felony. It was the definition of a felony. It's
why we have Western movies because horse
thieving was a felony."
Breyer said 200
years ago, people thought flogging at a whipping
post was not cruel and unusual.
"And indeed
there were whipping posts where people were
flogged virtually to death up until the middle
of the 19th century," he said. "If we had a case
like that today I'd like to see how you'd vote."
The two bandied
about other issues, including Brown vs. The
Board of Education, the landmark high court
decision in the 1950s that outlawed school
segregation case, cable television rulings, and
how they view cases that come before them.
Later, Scalia
returned to the issue of flogging, saying it's
"stupid" but "not unconstitutional, which is
stupid. There's a lot of stuff that stupid
that's not constitutional."
Scalia said he
has no interest in what legislators intended
when making a particular law. Breyer countered,
saying judges need to go back and find out the
purpose legislators had when crafting a bill.
"I don't at all
look to what I think the legislature thought,"
Scalia said. "I frankly don't care what the
legislature thought."
Breyer responded
quickly, saying, "That's the problem," which
brought thunderous laughter from the crowd.
"You've got to
go back to the purpose of the legislation, find
out what's there," Breyer said. "That's the
democratic way, cause you can then hold that
legislature responsible, rather than us, who you
can't control."
At the end, the
two were asked what they would change about the
Constitution.
"Not much,"
Breyer said. "It's a miracle and we see that
through" our work.
Scalia called
the writing of the Constitution "providential,"
and the birth of political science.
"There's very
little that I would change," he said. "I would
change it back to what they wrote, in some
respects. The 17th Amendment has changed things
enormously."
That amendment
allowed for
Breyer countered
that change has sometimes been needed.
"There have been
lots of ups and downs in the enforcement of this
Constitution, and one of the things that's been
quite ugly - didn't save us from the Civil War -
is that there is a system of changing the
Constitution through amendment. It's possible to
do but not too easy."
|