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Though it’s pretty clear that Nadine Strossen of the ACLU is a little over matched here, she does catch Scalia trying to essentially argue that America and society in general has not become more equal, fair, open, and free since the adoption of the Constitution. Sure Scalia can provide examples to the contrary, but its impossible to say that, in the aggregate, these principles have not grown over time.

I think this is clearly where the conservative argument for a static constitution falls flat and I wish Strossen had pushed Scalia a little harder on it. Scalia tried to mock civil libertarians (and dare I say mockery in argument is a sign of internal weakness) by saying that they believe the 8th Amendment to mean “to each his own” on cruel and unusual punishment. But what Strossen should have said is that the Bill of Rights is designed for judges to shape the law based on the prevailing societal norms of the time. No this doesn’t mean that the courts should reflect public opinion, far from it. Rather the courts should evaluate society in a historical context in order to evaluate, for instance, what exactly is cruel and unusual.

Sure this puts a lot of power in the hands of judges, but in light of the fact that societal norms have changed since the writing of the constitution, it’s difficult to identify a better way. If judges look at the law and at society in its context and decide that it’s OK for the state to put to death its own citizens in the form of capital punishment, I’m OK with that. I think that’s the wrong decision, but I think it was decided in the correct way.

I was also somewhat astounded by the fact that Scalia explained the ban on the death penalty in the German Constitution as the work of Nazi sympathizers. Maybe it was actually due the the fact that the state had just put to death millions people, many of whom were their own citizens, and they didn’t really think it would be appropriate to continue that practice, even in a limited respect.