Lean Upon Justice

ELBOW

If it Please your honour, I am the poor duke's

constable, and my name is Elbow: I do lean upon

justice, sir, and do bring in here before your good

honour two notorious benefactors.

ANGELO

Benefactors? Well; what benefactors are they? are

they not malefactors?

ELBOW

If it? please your honour, I know not well what they

are: but precise villains they are, that I am sure

of; and void of all profanation in the world that

good Christians ought to have.

Measure for Measure, II.1

I began this blawgging enterprise by focusing on a nun-in-training, Shakespeare’s “Isabella” in Measure for Measure. Indeed, this blawg is named for the “true complaint” Isabella lodges against The Establishment, revealing the tawdry things she has experienced while trying to save her brother from a capricious death sentence:

ISABELLA

O worthy prince, dishonour not your eye

By throwing it on any other object

Till you have heard me in my true complaint

And given me justice, justice, justice, justice!

This past week, a full-blown nun visited the law school where I teach: Sister Helen Prejean. Sister Helen is a Roman Catholic social-justice celebrity and a leading advocate for abolishing the death penalty. During her visit, she discussed two books about her experiences serving as a spiritual adviser to people on death row: Dead Man Walking and The Death of Innocents. While ruminating about the various political, cultural, and religious forces that explain the death penalty’s resilience in parts of this country—most notably, in the Deep South—Sister Helen’s feisty, funny, poignant commentary focused primarily on the role poverty plays. She quoted the adage, “No one with capital gets capital punishment.” In passing, she also mentioned that Martin Luther King, Jr. had noted that a nation’s budget is a moral document, as it identifies a country’s social priorities; she then suggested there is something odd about the vast sums of money that states continue to spend on executing a handful of people while so many other needs go unmet. For some sobering stats, see http://www.deathpenaltyinfo.org/costs-death-penalty.

I was curious about what precisely MLK had said on this front. What I discovered was that he made the following statement in his famous anti-war speech: “A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.” That speech, "Beyond Vietnam: A Time to Break Silence," was delivered on April 4, 1967 in NYC’s Riverside Church—exactly a year to the date of King’s assassination (on April 4, 1968). A sobering synchronicity.

Another person of interest whom Sister Helen quoted during her talk was Justice Antonin Scalia. Also a Roman Catholic. Also a powerful advocate for various policy positions, though on the other side of the death penalty issue from Sister Helen. During her talk, Sister Helen noted Justice Scalia’s preference for textualism, a particular approach to construing legal documents (such as constitutional provisions like the Eighth Amendment’s prohibition of “cruel and unusual punishment”); and she noted the limitations of that approach by reminding that every decision to engage in textual interpretation (aka hermeneutics) begins by selecting the text upon which one decides to focus. Sister Helen then used as an example of such selectivity comments Scalia made during a conference on Catholicism and the death penalty in America that focused on passages from the Old Testament that describe a wrathful God, quite comfortable with meting out the death penalty. I found the implicit analogy that she attributed to Justice Scalia fascinating. He contends that textualism permits reading the Constitution’s Eighth Amendment as compatible with the modern death penalty just as American Catholics can read religious doctrine as being compatible with the death penalty. But at least the latter only works, as Sister Helen suggested, if a person is rather selective about the text upon which you focus. If a Catholic wants to find support for the death penalty in religious doctrine, texts like Leviticus are, for instance, quite helpful. See, e.g., Leviticus 20:2 (requiring death for any who “giveth any of his seed unto Molech”); id. 20:9 (ordering that “every one that curseth his father or his mother shall be surely put to death”); id. 20:10 (condemning all adulterers to death); id. 20:27 (prescribing stoning for anyone who “hath a familiar spirit, or that is a wizard), etc. The textualist argument is, however, more difficult to make if the text upon which one focuses is in the New Testament, e.g., John 8:7, which quotes Jesus as saying to a mob preparing to stone a woman caught in the act of adultery: "He who is without sin among you, let him throw the first stone at her."

In short, the limitation of textualism as an approach to legal texts is exposed when the same argument is scrutinized in other contexts. The foundational premise—that someone interpreting legal text should start and, preferably, end with the “plain language of the text”—contains its own deconstruction. Because textual interpretation begins with an act of framing, “just looking to the text” for answers about that text’s meaning is not really possible. Finding the means to interpret texts justly is, I think, a better, less pretextual goal.