Immoral Maxim #5: Due Process of Law

Immoral Maxim & Rhetorical Repartee #5: Formal Procedures versus Duty, Substance and Reality

Constitutional Issue #5: Due Process of Law in Amendments 5 and 14:
“No person shall be ... be deprived of life, liberty, or property, without due process of law...” Amendment V.

“... nor shall any State deprive any person of life, liberty, or property, without due process of law;” Amendment XIV, Article 1.

Immoral Maxim #5:
“There is no basis in text, tradition, or even in contemporary practice ... for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” Scalia, concurring in Herrera v. Collins (1993) [F1] [F2] [F3]

A More Commendable Maxim:
“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Mugler v. Kansas, 123 U.S. 623, 661 (1887)

In my view, this and similar remarks by Antonin Scalia have rendered him morally unfit to be an Associate Justice of the Supreme Court. While it is quite true that a judge is always constrained by the laws of the society in which he or she lives, no judge has the right to simply ignore the actual facts of the case. [ F 5-4 ] Mr. Scalia did not take an oath of office to a purely formal constitution that only applies legal rules, jurisprudential formulas, and constitutional formalism to theoretical issues. The final test of any decision is not whether it was — at the time it was rendered — legally proper on its face. The final test is whether the decision and its implementation serve the real people who are both protected and punished in the actual execution of the law. Mistakes in any human enterprise are, of course, inevitable. However, one of the essential functions of our Supreme Court is to be the Country’s Court of Final Appeal. When credible and even compelling evidence of important legal error is disregarded because the Supreme Court justices believe that their important legal obligations are only the formal requirements (1) to implement traditional practices, [ F5 ] and/or (2) to adjudicate legalistic conflicts in the Courts below [ F6 ] and/or (3) to implement their particular ideology of jurisprudence [ F7 ] they have abandoned their fundamental responsibility to the People of the United States, and have substituted a mere Paper Parchment for the Constitution of the People of the United States.

There is no justification for hypothesizing that punishment of the actually innocent is a matter of legal indifference to the United States Supreme Court in a death penalty case or in any other case which the Court might consider. The very real limitations of the U. S. Supreme Court should never become a blanket excuse for judicial error, prosecutorial misconduct or other juridical error. In my view, Scalia’s statement is an example of Constitutional malfeasance. [ F 5-8 ] To celebrate the advantages of our legal system, including its formal features, is a natural — if overworked — disposition for many people including judges. However, to proudly ignore the limitations of our legal system while failing to combat them is to become a partner in tyranny. [ F 5-9 ]

Justice Samuel Chase, who served on the Court from 1796-1811, was a real rascal, aggressively pursuing Democratic Republican under the infamous Alien and Sedition Laws. But he recognized bull when he saw it. We end this section with a quote from a 1798 opinion:

“A law that punishes a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law... It is against all reason and justice for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit, of our State Government, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.” — Justice Chase in Calder v. Bull, 3 Dallas 386-389 (1798).


NOTES: Footnotes, Citations, & Bibliography

Appendix E — FOOTNOTES FOR TOPIC #5 (Due Process)
[Footnote 5-1] The full sentence: “There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the [506 U.S. 390, 428] Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
[Footnote 5-2] Scalia continues to churn up the waters. Recently he dissented in a certiorari petition with these words, “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” [Justice Scalia (dissenting), “In re Troy Anthony Davis,” a petition for Habeas Corpus granted on August 17, 2009.]
[F 5-3] The following quotation has been attributed to Scalia: “Mere factual innocence is no reason not to carry out a death sentence properly reached.” However, while this might accurately reflect the implications of Scalia’s words, I was not able to verify that these were in fact his actual words so I will not refer to them further. Sometimes Scalia looks over the cliff — and decides not to jump off.
[ F 5-4 ] More precisely, those facts of which they are aware. Facts which have not been properly presented in the legal sense can almost never be given the deference which legally determined facts are provided.
[ F 5-5 ] For example, The Supreme Court must rule on certain disputes between the States and various matters of International Law.
[ F 5-6 ] The Supreme Court does not have the time or resources to correct all errors which inevitably occur in the Courts below. Consequently, it has usually been understood that the Court should focus its energies on those errors and problems which best further the rule of law. Thus, the Court is particularly alert to cases which — while presenting similar legal issues — have been decided by different legal standards in the Appeals Courts and other lower courts.
[ F 5-7 ] This, of course, is the issue here. Scalia’s willingness to blithely ignore facts, precedents, and arguments which conflict with his own legalistic predispositions is unusual for any judge - let alone a Supreme Court justice. Roger Taney’s Dred Scott decision, Lochner, and the “Four Horsemen” of the Thirties come to my mind.
[ F 5-8 ] Impeachment or censure are political issues and require a minimal political consensus. We are not likely to achieve such a consensus in Scalia’s lifetime. However, at some point the legal historians are going to either seriously analyze the moral turpitude of Scalia’s jurisprudence or become active participants in organized injustice or tyranny.
[ F 5-9 ] Scalia’s memo to Marshall in the McClesky case [challenging racial discrimination in a Georgia death penalty case] is a striking example of such ‘principles’ in action. “It is my view that the unconscious operations of irrational sympathies and antipathies, including racial, upon jury decisions is real [and] ineradicable.” (Quote from the memo is found in in Schultz and Smith (1997), page 195.) [To me Scalia appears to be saying ‘I, Antonin Scalia, am helpless in this matter. I am only a Supreme Court Justice.’]


CASES CITED:
Calder v. Bull, 3 Dallas 386-389 (1798)
Dred Scott v. Sanford, 19 How. 393 (1857)
Herrera v. Collins, 506 U.S. 390 (1993)
In re Troy Anthony Davis, 557 U.S. ____ (2009)
Lochner v. New York, 198 U. S. 45 (1905)
Mugler v. Kansas, 123 U.S. 623, 661 (1887) [Harlan opinion]


BOOKS:
Schultz, David Andrew & Smith, Christopher E. (1996). The Jurisprudential Vision of Justice Antonin Scalia. Rowman & Littlefield Publishers, Inc.: Lanham, MD.