Constitutional Opinions / Blackmun: Still Growing

...Those who argue that justice should be done have suffered the full force of his holy rage...

...Back in the fall Blackmun had previewed the position he would take in Callins when on "Nightline," an unusual place for any sitting judge to appear, he said he was no longer "certain at all that the death penalty can be constitutionally imposed...

...He is still popular in the West...

...The New Republic called him "Poland's most noble and intellectually scrupulous voice...

...Odd as it may seem, the first question that should be asked at his successor's confirmation hearing is whether the Constitution should have any role in deciding cases brought under it...

...And because we are an authentically Catholic college, our intellectual life is guided and nourished by the Magisterium of the teaching Church...

...Scalia admits this futility, too, but unlike Blackmun he asks whether the commands are in fact constitutional...

...This requirement means that a jury might undo what under a constitutional death-penalty statute it otherwise properly would do...

...He often cast votes against positions that stretched, or would have stretched, the Constitution and other law beyond their plain meaning...

...No doubt it is the subject of law review articles now in progress on the completed social vision of Justice Blackmun...

...cruel and unusual punishment...

...RADICAL" comes from the Latin radicalis—HAvING ROOTS—and at Thomas Aquinas College we offer an education that is radical in the purest sense...

...Michnik still preaches high ideals—tolerance, fairness, forgiveness—but in a new context...

...For example, in Furman v. Georgia (1972), Blackmun filed a dissent from the court's decision that the way in which the death penalty was then imposed ran afoul of the Eighth Amendment's prohibition against Terry Eastland is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center in Washington...

...Nixon got four chances to shape the Supreme Court, doing pretty well on his own terms with his appointment of now-Chief Justice William Rehnquist, okay with the man he installed as chief, Warren Burger, who retired in 1986...

...Unfortunately, it does not seem to occur to Blackmun that the Constitution is "the supreme law of the land...

...Jerzy Urban, the odious spokesman for the martial law regime, routinely denounced him as a proxy of Western imperialism...

...In Poland people say that Michnik zionie tolerancja, roughly, "reeks of tolerance...

...The Fifth and Eighth Amendments have contemporaneous origins, in the late 1780s and early 1790s—which is to say that the polity that ratified the Fifth also ratified the Eighth...

...Where Blackmun defers to the case law in order to condemn the Constitution, Scalia defers to the Constitution, judging the case law by it...

...and somewhat less than okay with his selection of Lewis Powell, who stepped down in 1987...

...He would inter the line of cases requiring unlimited jury discretion...

...Blackmun does not explain in Callins why during the sixties he thought the death penalty might not be constitutional...

...By the early 1980s, however, Blackmun would make this distinction less frequently as a different one came to preoccupy him—that between what he called "the real world" and the court's "ivory tower...

...The question is what to do about it, and Blackmun and Scalia offer quite different answers...

...As Justice Scalia points out, the Fifth Amendment provides that "no person shall be held to answer for a capital . crime, unless on a presentment or indictment of a Grand Jury, nor be deprived of life...

...The Communists had him locked up...

...Michnik appeared on a Paris talk show with Gen...

...I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed...

...On the other hand, those cases require who for the sake of a higher calling offered radical alternatives to the popular prejudices .of their day—men like Socrates, Dante, St...

...He even befriended Jerzy Urban, who now runs a semi-pornographic scandal sheet...

...Most Poles, for instance, are naturally proud of the fact that no show trials such as that inflicted on the Ceausescus in 1989 tarnished the rebirth of their democracy, but Michnik opposes any de-Communization, even on the largely symbolic Czech model, to say nothing of the systematic pruning carried out in East Germany...

...After that, I began to hear his name on Radio Free Europe again and again, through the static caused by jamming...

...Blackmun argues in Collins that the court should "admit the futility of the efforts to harmonize" the two "irreconcilable constitutional commands" and accept "the fact that the death penalty cannot be administered in accord with our Constitution...

...Wojciech Jaruzelski, Poland's martial law dictator, to help promote the general's memoirs...

...Our curriculum is rooted in the cumulative and hard-won wisdom of 2500 years of Western thought...

...THOMAS .AQUI1 AS COLLEGE 63 Adam's Curse by Radek Sikorski that a jury have unlimited discretion to consider any evidence a death penalty defendant might wish to offer in his own behalf...

...This note," the unidentified author observed, "does not yield firm predictors of how Justice Blackmun will respond in a given case...

...To deny the Fifth's embrace of the death penalty, Brennan and Marshall could not invoke the polity we have today, given polls consistently showing majority support (now above 75 percent) for capital punishment, not to mention the many state and federal death-penalty laws...

...171 Ow& Chobielin, Poland A dam Michnik used to be my hero...

...Justices Brennan and Marshall used the Eighth Amendment's prohibition against "cruel and unusual punishment" to trump what the Fifth Amendment provides...

...Real radicals have roots.Join us by calling Tom Susanka, our Director of Admissions, at 800/634-9797, or write to our Admissions Office, Thomas Aquinas College, Box 104, 10000 North Ojai Road, Santa Paula, CA 93060...

...Some law review, somewhere, however, surely might wish to assign a piece on how this opinion completes Blackmun's rejection of the Constitution and the rule of law—quite the opposite of what his sponsor, Richard Nixon, so many years ago intended...

...Not that he is inconsistent...

...In those days, you could hardly pick up a Communist newspaper without reading a slur about either Adam Michnik or his friend Jacek Kuron...

...In a footnote, Blackmun notes that as a federThe American Spectator April/May 1994 al appellate judge he voted (in 1962, 1967, 1968, and 1970) to enforce the death penalty even though he then stated publicly his doubts as to "its moral, social and constitutional legitimacy...

...W ith his highly personal and emotional 7,000-word dissent from the court's refusal to hear the appeal of a Texas inmate scheduled for executionCallins v. Collins is the case—Blackmun made sure that his view of the death penalty, shared by no current member of the court, would be well publicized...

...It is rare for members of the court to comment on decisions to take cases for review, and it is even 62 The American Spectator April/May 1994 rarer for a member to write an opinion in this circumstance as long as Blackmun's...

...Blackmun's description of the incompatible lines of jurisprudence since Furman is accurate, although he fails to give credit where credit is due: his antagonist in Collins, Justice Scalia, pointed out the conflicting case law four years ago, in Walton v. Arizona...

...Larded with references to himself—thirty Is, seven mys, and two mes, it reads like the effluent of a man-who can't stand the death penalty and is using the contradictions within the case law only as a pretext for renouncing it...

...The thought that raised reason above superstition and virtue above primitive passion...

...Our students are rooted in this thought by studying the original works of the greatest minds of our tradition, men Specifically, Blackmun finds incompatible two lines of reasoning found in the capital punishment cases the court has decided since Furman...

...EQUAL JUSTICE UNDER LAW, Blackmun: Still Growing by Terry Eastland p rovoked by the judicial activism of the Warren court, Richard Nixon vowed in his 1968 presidential campaign to appoint "strict constructionists" to the Supreme Court—justices who would judge according to the text of the Constitution, not make it up...

...First, he defended the special pensions Radek Sikorski's book about Poland, Full Circle, will be published next year by Simon & Schuster...

...The thought that launched heroic voyages of discovery and has created music and literature of unsurpassed beauty and power...

...Referring to the thirty-seven state death-penalty statutes enacted since Furman was decided, he said, "No combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies...

...He could not have thought it unconstitutional for the reason he now advances, because that reason is tied to cases decided after Furman...

...The justice who wrote the opinion was neither William Brennan nor Thurgood Marshall but Nixon's own man, Harry Blackmun...

...I first read his name in Opinia, a samizdat newsletter my mother brought home from the office sometime in the late 1970s...

...I yield to no one," he wrote, "in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty...

...The more the Communists abused him, the more I liked him...

...without due process of law...

...Blackmun will probably retire this summer or the next...

...For Scalia, something must be wrong with a conclusion (the death penalty is unconstitutional) so plainly at odds with what the text of the Constitution clearly provides...

...In his early years on the court, interestingly, Blackmun was not, generally speaking, a judicial activist...

...From this day forward," he wrote, melodramatically, "I no longer shall tinker with the machinery of death...

...Blackmun's renunciation of the death penalty, answered by Justice Antonin Scalia in four tart paragraphs, won front-page coverage and editorial praise...

...Regardless of what the relevant law in a given casemight say, Blackmun more and more often got down into that real world to do what one of his politically liberal admirers called "intuitive justice...

...granted to the nomenklatura by the old regime, and opposed the return of property seized by the Communist party...

...Michnik has said that de-Communization would be like denazification in Germany and epuration in France—"expiation of col64 The American Spectator April/May 1994...

...0 ne would think that in any contest between the Constitution and something else, a judge would side with the Constitution...

...The Constitution is clear in its acceptance of capital punishment...

...But, having correctly identified the justice's belief in "a dynamic, evolutionary view of the judiciary," the author—wherever he or she might be today—surely was not surprised this February when Blackmun evolved in a predictable way, as he let the world know that, notwithstanding what he said twenty-two years ago in Furman, the death penalty is unconstitutional...

...The idea here is to make sure that the death penalty is meted out for the same kind of heinous crimes...

...A mere two days after he was sworn in for a second term, long before the troubles of Watergate would drive him from office, Nixon absorbed the news that the court, in violation of even a loose, much less a strict, construction of the Constitution, had declared abortion a constitutional right...

...Many Poles, however, have watched the political transformation of Adam Michnik with growing bewilderment...

...Then he praised the very man who had kept him in jail—General Kiszczak, who used the months during Poland's transition to democracy to destroy thousands of inconvenient documents...

...for them, the death penalty was in all circumstances cruel and unusual punishment...

...B lackmun does not go the Brennan-Marshall route in his Callins dissent, although it is possible that privately he has taken it...

...every federal and state death penalty statute was thereby nullified...

...That, of course, is the charitable interpretation of his opinion...

...And then there is the story, surely depressing for Nixon, of his other choice, Harry Blackmun, now 85 and in his twenty-fifth year on the high court...

...He now uses the idiom of liberalism to browbeat not Communists but anti-Communists...

...They have been accused not only of intolerance but also of the "politics of hatred," of "troglodyte" and even "zoological" anti-Communism...

...What they had to do was, in effect, read into the Eighth their own moral views, which they did at least 1,441 times in their stock joint dissent...

...The outside world agreed...

...The underground press printed his books and leaflets, which had heroic names like Letters from Prison or History of Honor in Poland...

...You can hardly read a story from Eastern Europe in the New York Times without an authoritative quote from Michnik...

...Thomas Aquinas, the Founding Fathers of our nation...

...A 1983 note in the Harvard Law Review hailed (and no doubt reinforced) "The Changing Social Vision of Justice Blackmun...

...Michnik calls his own position "anti-Communism with a human face...

...The case law about the Constitution is for him "the supreme law...

...in 1991, Polish television showed Michnik going off with Urban to a birthday party for another prominent Communist...

...Czeslaw Milosz said that Michnik represented "the best tradition of the Polish intelligentsia, that of liberalism and tolerance," and compared him to Gandhi...

...Only the regime's stooges thought otherwise: in those days, he was the most eloquent voice of free Poland...

...But, distinguishing as any proper non-judicial activist would between a judge's personal views and what the Constitution requires, he went on, "We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these...

...On the one hand, those cases require that a jury's discretion to impose the death penalty must be closely confined in order to eliminate arbitrariness and prejudice in its administration...