[Spiff]

In urging approval of a constitution that gave lifetenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Excellent! I'm not well read on Supreme Court dissenting opinions - not at all. But is this dissent somewhat scathing? Slam! Go Scalia!

[lentulusgracchus]

[Your quote of Scalia's dissent] "What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years...."

Actually, I wouldn't let Hamilton off the hook. He was a practicing attorney and not above pushing a grift to get his way, as he did both in the Philadelphia Convention and in the ratification debates at home in New York, when he and fellow Federalist campaigner John Jay put it about, for the education of the Antifederalist yahoos upstate, that if Albany failed to move to ratify the Constitution, Federal-minded gentlemen in New York City might just take southern New York State with them and secede, and join the Union by ratifying the Constitution themselves as a new State. This was a canard, but it had some effect, and it shows Hamilton at his snarkiest. He also poured vitriol all over the idea of a Bill of Rights, including the Eighth Amendment, in Federalist 84, and continued to scoff at the idea in No. 85, the last of the series. Had Hamilton had his way, there would be no Eighth Amendment.

Further, Hamilton was accustomed to "work[ing] the treadles of slower minds" all his life, and any assuance he gave fellow New Yorkers in The Federalist that the Judiciary would remain "bound down" had to be, coming from an attorney, disingenuous. Because the first thing John Jay did, as the first Chief Justice of the Supreme Court, was to start handing down dicta that incorporated the principles of national amalgamation and nationalism that had been specifically repudiated by the Philadelphia Convention, the ratifying States, and the People generally -- a Supreme Court "instant tradition" of radical reinterpretation of the Constitution that Hamilton had to see coming, and which fellow Federalist John Marshall became notorious in perfecting when he became Chief Justice years after Jay.

This tradition had a consequence that was written in blood, by and by, when Abraham Lincoln relied on Federalist revisionist theories of the nature of the Union that had been compiled from Jay's and Marshall's opinions and dicta in the 1830's, in insisting on his theory of the Union that led directly to -- and justified -- his strenuous efforts to reconquer the Southern States after they seceded from the Union in 1860.

Jay's and Marshall's sausage-making cost America 620,000 battlefield dead and another 250,000 incidental casualties -- almost a million dead, in a nation that contained only 31,000,000 people at most in 1860. An equivalent proportion today would see about 9,000,000 war dead.