Cruelty no longer so unusual

Here is Eugene Volokh, of the blog, The Volokh Conspiracy -, esteemed UCLA law professor, advocating amending the Constitution to sanction punishments, which can only be termed medieval. Volokh is no Glenn Reynolds, though he has similar political sentiments and a similar inclination to be ignorantly snarky, an inclination, which is only sometimes redeemed by careful reasoning.

Just for the record, I will say why punishing even a convicted serial murderer of children by publicly flogging, stabbing and then slow throttling, is not a good idea. It is simply this: what this man did to children was wrong; the State doing it to him is also wrong. This is not simply an abstract point. It is the difference between law, as fair and reasonable, and law as authoritarian.

Volokh's view derives not just from his personal atavistic streak, but from his authoritarian views on law and politics. An authoritarian's view of right and wrong, good and evil, is simple. What is done to me, is wrong; what is done to others, may be right. It is the view of a Serb, who sees a Croat killing a Serb as murder, and a Serb killing a Croat, as justifiable. (My apologies to the enlightened Serbs of the world; I could have used as an example, white American Southerners of the 1950's, who could not bring themselves to convict the murderers of negroes.)

Such a personal view of good and evil is understandable, but it is ultimately incompatible with the rule of law. What the Iranian authorities did to the convicted serial rapist/murderer was a (moral) crime, and ought to have been a legal crime, for the same, basic reasons, that what the murderer did to the children, who were his victims, was a moral and legal crime.

The view that what you did (to me and mine) was so heinous, that I am, morally and legally, released from any constraint against doing the same to you, is the foundation for the Bush Administration policy on torture and imprisonment without trial.

It can be given the formal sanction of law, I suppose, by the simple expedient of specious reasoning, or even by amending the law. I am sure the Iranians have laws mandating at least some of the punishments and humiliations, which they inflicted. The Bushies have the window-dressing of their bald assertions of Presidential authority and the invention of novel categories (e.g. illegal enemy combatant). But, fundamentally, this is about overthrowing the rule of law in favor of authoritarianism. What matters is not what you do, per se, but whether you have the authority to do it.

The narcissism at the heart of authoritarianism can be disguised by projecting the source of law away from ourselves and onto God. Behold, Scalia, Roman Catholic and Justice of the United States Supreme Court:

The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government. Few doubted the morality of the death penalty in the age that believed in the divine right of kings.

Do you see where Scalia is going with this? Can't believe it? Well, grow up. That's exactly where he's going. A Justice of the United States Supreme Court has declared himself opposed to democratic self-government and in favor of the divine right of kings.

You thought the Republicans just wanted to repeal the New Deal? Hah! These guys want to repeal the Enlightenment, and double-quick, thank you.