||[Feb. 22nd, 2016|09:50 pm]
One of Scalia's famous bits was how, the Constitution doesn't actually forbid the execution of the factually innocent if due process was followed. |
And this is one of those things that's both better and worse than it sounds.
It's better than one might think, because really, the law doesn't give a damn about reality - it can and must be cared about what can be properly established. If the police use an illegal search, and find perfect evidence of criminal behavior on my part, and the courts toss that out, and toss out everything that they derived from that evidence (under the "fruit of the poison tree" doctrine), it's *true*, it's a *fact* that I've engaged in criminal behavior - but as far as the law is concerned, I'm perfectly innocent.
And, yes, if I'm convicted of a crime, by a jury finding, having had all of my rights respected, in the law's eyes, I'm guilty and under the state's authority... even if there's evidence that I'm perfectly innocent. (This is far stronger if that evidence was introduced at my trial and the jury disregarded it - or if the prosecutor discovered it, handed it to my attorney during discovery, and we chose not to follow up on it.)
The Constitution really shouldn't muck around with truth, because what is obviously, objectively true to some people will be an obvious fraud to others. Instead, the Constitution can and should deal with human institutions in a way that's fair, and with transparency - so everyone knows what's going on. For example, jurors should be aware of their duties, and their powers, and what it will mean if they return a finding of fact that isn't true. Similarly, those who provide information to those jurors should be constantly aware of what it means, and be in proper awe of their power and responsibility.
Because the Constitution can't - and won't - make guarantees about evidence or truth, so long as due process is followed A statement to this effect is both accurate and true, and it's hardly nasty to point it out... most of the time.
Ah, but there's the rub. Scalia is not just writing about the Constitution for a lecture or a presentation. He was, in fact, seated as a justice who was given the power and authority to decide if a potential injustice should be reconsidered, and possibly reversed.
The Constitution can't care about abstracts like truth - it must leave that to people. And he, in essence, stated that he was willing to lay down that duty, and instead, do only what the law required.
I'm never *glad* about a person's death. The closest I'd come is being glad that someone's suffering has ended. But I am glad that Scalia will no longer judge my country's laws, or its people.