The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.Trop v. Dulles (1958), plurality opinion.
I just did a quick search of this blog. It appears that I've used the word "decency" in nine prior posts. The nine posts were on a variety of topics, and the word was used in different contexts. I was surprised to see that I've only quoted Trop once.
I bring this up because of Bill Otis. In "Condescension and the Death Penalty," a post on the Crime & Consequences blog yesterday, he began with a part of that quote.
What is the abolitionists' favorite phrase? "Evolving standards of decency." What this is used to suggest is that anyone whose thinking has "evolved," at least in the direction of "decency," opposes capital punishment. And that is almost certainly what Justice Brennan intended it to imply. Analysis, you see, is not required when your side's conclusion is built into the vocabulary of the discussion before it begins.He then explained that when he debates the death penalty, he points out that
the death penalty was not only supported but used by Dwight Eisenhower, George Washington, FDR and Abraham LincolnPretty heady company, he suggests, and asks his opponent in debate
whether he knows of any reason to believe that abolitionists know more, or are attuned to some Higher Morality, than these men.It's a cheap rhetorical trick, of course, though I imagine that it might be effective if whoever he's debating has been insisting that the death penalty has always been wrong but that we've been too morally backward to know it until now. But for anyone who's actually trying for intellectual honesty, the trick won't work.
First Problem: Selective Quotation. There's a difference between "evolving standards of decency" and "the evolving standards of decency that mark the progress of a maturing society." It's not so much that the latter is clearer than the former. It's at least as squishily devoid of meaning. Rather, the latter makes a different (albeit mighty nebulous) point: As society matures (whatever that means), the measure of decency (not decency itself, its measure) changes, too.
As society changes, so do our needs. Moral verities remain, but they're applied differently. The New Testament Jesus brought mercy to the rigid justice of the Old Testament God. Sir Artegall, the embodiment of Justice in the fifth book of The Faerie Queene, learns at the court of Mercilla (mercy) that justice without mercy is incomplete. This isn't relativism. It's a recognition that context matters. By ignoring part of the phrase from Trop, Otis manages to pervert its point.
Second Problem: Straw Men. Tossing up Eisenhower, Washington, Roosevelt, and Lincoln (and oddly listing them in that order) suggests a universality of view. Choose your moral exemplars and it's easy to claim that those who don't share a perspective with them can't measure up.
Same game: Jesus may not have opposed executions, but he insisted that the first stone be cast by one without sin. There's a moral exemplar. Surely Otis wouldn't claim that Eisenhower and the others were "attuned to some Higher Morality" than Jesus. So perhaps he'd claim that they had executioners who were themselves wholly pure and sinless? Nah.
Third Problem: Wrong Details. Otis may think he's got us all hornswoggled with that line about how Justice Brennan wrote "evolving standards of decency" as part of scheme to end the death penalty. But the facts just won't bear it out.
First of all, Trop isn't a capital case. It's about whether the Constitution permits a wartime deserter to stripped of citizenship. Second, Brennan didn't write those words. The plurality opinion, from which the phrase was taken, is Chief Justice Warren's. Brennan didn't even sign off on it. (Had he, it would have been a majority opinion.) Rather, writing for himself alone, Brennan never looked explicitly at the Eighth Amendment, focusing instead on general principles of delegated authority and, it seems, due process.
That much said, it's important to acknowledge that if Otis is wrong about evolving standards, Scalia is right. The whole idea of "meaning from the evolving standards of decency that mark the progress of a maturing society" is hopelessly muddled. I don't know what those standards are. I don't know what it means for a society to mature, unless it means that the median age is increasing, which doesn't seem to be the point.
The Court has given the formulation something like meaning (not meaning, but something like it) by declaring that you look to what most states are doing and to trends and things like that. It's nebulous, but something.
Still, the truth is that the "evolving standards of decency that mark the progress of a maturing society" are whatever five justices of the Supreme Court happen to declare them to be. That's hardly a basis on which to build. As Gertrude Stein didn't say of standards of decency, "There's no there there."
We can talk about morality. We should. But there's much to be said for speaking truly and accurately and with words that have actual content. Those evolving standards just don't.
Still, that's a quibble about one of those sloppy gnomic utterances Earl Warren put out for the Court 52 years ago.
Otis speaks today. He plants himself on the moral high ground through some combination of tricks, dishonesty, sloppiness, and ignorance. For the right words on Otis, we turn to Joseph Welch.
Have you no sense of decency, sir, at long last? Have you left no sense of decency?Joseph Welch to Senator Joe McCarthy.
*It might be even more effective if Otis bothered to l