The View from Planet Scalia

Last week I chanced to tune in NPR to a BBC interview with Justice Scalia on the subject of torture.  Actually the interviewer and Scalia were both using the word “waterboarding”, which I really hate because it sounds like a sport. I prefer the original Spanish “tortura del agua.”  Anyway, I sat there in the car as snow fell round about me, listening intently until Scalia said something like, “of course, the police don’t have the right to slap a suspect around.” At that point I decided the next time Congress vets a Supreme Court nominee, they need to check more carefully which planet the nominee has been practicing law on, and went into the nice warm house.

 Of course the police have the right to slap a suspect around.  In fact, they have the right to slap anybody around, but preferably people in handcuffs, either to get information, or to exact appropriate deference, or to punish a prior attack on the police.  Similarly, “correctional officers” have the right to do the same sort of thing to prison or jail inmates.  We all know that because one tv cop show after another shows cops and guards doing this kind of thing after being clearly labelled as the good guys.  The viewers always applaud, even when some jackal of a criminal defense lawyer has the nerve to complain.  Americans want the police to be above the law.  Or, more accurately, Americans want the police to be above any law that might otherwise protect bad guys.

Remember Abu Ghraib?  Most of the “bad apples” who brutalized prisoners there were, in their civilian lives, prison guards.  And back home out of their Army uniforms, they were probably never considered “bad apples” for behaving exactly the same way.  They may have been aberrations in the Army, but not in the civilian prison system.

All of which is distantly related to the history of corporal punishment in American culture.  Anyone who has ever been to law school knows that touching any other person without that person’s consent is battery.  Let me repeat that:  TOUCHING ANY OTHER PERSON WITHOUT THAT PERSON’S CONSENT IS BATTERY.  Which is both a crime and a tort.  Doesn’t matter whether the person is injured or killed.  A mere pat on the back will suffice.  When I was a first-year law student, of course, we all got a big kick out of the concept.  It was kind of like “medical student’s disease,” in which the student feels the symptoms of every illness he studies.  Law student’s disease causes the student to feel aggrieved at every criminal or tortious action committed against her.  Being stuck in an elevator is false imprisonment.  Having to listen to a student of the opposite sex tell a dirty joke is sexual harassment (unless you laugh.)  We were all well aware that most unconsented touching, and indeed, most unconsented hitting, never arouses the interest of the criminal justice system. 

We hadn’t thought about how such an utterly chowderheaded concept as common law battery ever found its way into the law books in the first place.  Those of us who, later, had occasion to deal with “domestic violence,” might know that, until fairly recently, men were presumed to have the right to hit their wives, so long as no serious damage resulted.  We might even know that, until about fifty years before that, an employer was presumed to have the right to “chastise” a servant or employee (again, this side of serious injury.)  We were all well aware that teachers and parents had the right to “discipline” children.  It never occurred to any of us to try to square those realities with the dogma of common law battery. We just chalked up the latter as one of those legal fictions that occasionally shade all the way into legal fantasy.  So, one suspects, did law student Scalia, in his day.

I haven’t researched this question at all, and maybe the facts are lying around for any interested scholar to see.  If I do stumble upon them later, I’ll get back to you.  In the meantime, I’m pretty sure I know what really happened. 

The common law concept of the inviolability of the person of the free citizen was never meant to apply to prisoners, criminal suspects, women, workers, or children.  It was, in fact, a perk of the upper classes.  In the Army, it still is.  Enlisted personnel can slug out their mutual hostilities with relative impunity, so long as nobody gets seriously hurt.  But an enlisted man/woman who raises a hand to an officer can be court-martialed. 

Once we stopped admitting we had an upper class, we Americans had to at least nominally believe that every adult was entitled to personal inviolability.  It was a gradual process, which has only very recently barred teachers from hitting students, and has not yet (in the US) extended to parental “spanking.”  But it has never extended to the “criminal classes,” and probably never will.  The Europeans generally take the concept all the way, but we Americans don’t.  The closest I’ve seen to an explanation of the difference came from James Q. Whitman’s Harsh Justice (Oxford, 2003), which suggests that, when democracy hit the US, it led us to decide that everybody is a peasant, while, when it hit Europe, it led the Europeans to decide that everybody is an aristocrat.  So Americans punish everybody the way we all used to punish peasants, while Europeans use the more humane methods previously reserved for aristocrats.  Our law books, on both sides of the Atlantic, all endorse the personal inviolability of all adults, but only the Europeans really believe it.  And some of them think children should be immune from corporal punishment too, so we know they can’t really be taken seriously.

(Does Scalia spank any of his 10 kids? It would be interesting to know. But I digress.)

I still remember 1968.  Specifically, I remember the episode at the Chicago Democratic National Convention, at which the police charged into a crowd of demonstrators and indiscriminately beat them up.  I wasn’t there (I left before that happened, and got tear-gassed in the process,) but I heard the police spokesman who later explained/justified the event by saying, “They were insulting our mothers. We couldn’t let them do that…”  Later explanations claimed the demonstrators had been throwing stuff at the police, probably because by that time some lawyer had advised the police that mere insults were not legal justification for the use of force.  I tend to believe the earlier story.  But the police, and most Americans (judging from the outcome of the elections that year) were quite convinced that a demonstrator who insulted the cops completely deserved any force used by the police, even where serious injury in fact resulted (as it did in a few cases in 1968.) In fact, most of us apparently believed that anybody who happened to be in the vicinity of people who were insulting the police deserved to be hit.

I’m not even going to talk about gun violence, which probably makes me the only blogger this weekend who doesn’t, other than the cooking experts.  But American culture endorses violence, with and without weapons, as a way to enforce authority.   We need to pay serious attention to this problem, and decide whether we really want to carry it into the 21st century.

There is nothing inevitable about it.  We can change our culture.  The Swiss used to keep their economy going by hiring out as mercenary soldiers.  They had a really nasty reputation among those who hired them.  The Scandinavians, of course, got their start as Vikings, some of the nastiest thugs you would ever not want to meet in a dark alley.  The Dutch were pirates.  You get the idea. And all of them, these days, are utterly opposed to interpersonal violence.  The Scandinavians don’t even spank their kids any more.  It may take us another 400 years to catch up with them, but isn’t it time we got started?

Red Emma

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