I have recently decided, based on an opinion I completely disagree with, that Justice Antonin Scalia is nonetheless, not a total ass.

This week the United States Supreme Court ruled that a lower court must hear new (or changed) evidence that could prove a man on death row innocent. I applaud them. Justice Scalia (along with Justice Thomas) wrote a dissent, and I sort of have to applaud him too.

I am 100% against the death penalty. I think our judicial system is corrupt (or at least inadequate), and if Mr. Troy Anthony Davis is innocent, he won’t be the first innocent man (or woman probably) on death row. I absolutely think if there’s new evidence he should have the opportunity to present it. This is another perfect example of the kind of famously ridiculous opinion Justice Scalia is famous for. I wrote an indignant blog post sometime last year outraged at a statement he made stating that it was ok to torture terrorist suspects because they hadn’t been convicted of anything. If they haven’t been convicted, he reasoned, they aren’t being subjected to cruel or unusual punishment. You don’t punish someone who has yet to be convicted. You just torture them, and that’s a-okay according to Justice Scalia.

That combines with the more recent statement that it’s ok to execute an innocent man: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” It really makes Justice Scalia sound like a monster. Maybe he is. But I think I’m beginning to understand his thought process, and while I disagree with the particulars, I sort of get the theory.

In my high school government class (which was half a lifetime ago, so bear with me if I’m completely wrong) we talked about two different approaches to the constitution. I don’t remember what they’re called. They boiled down to Spirit of the Law vs. Letter of the Law. If you follow the Spirit of the Law, you believe you have to keep in context the reason for the laws in the first place, you have to believe that the laws are mutable. This is the argument, for example, that some use to repute the second amendment. They claim, quite rightly, that the second amendment didn’t actually have a whole lot to do with defending yourself from buglers and rapists. The second amendment had to do with civilian militias, and isn’t particularly relevant (ok, that could be debatable, but let it go for now) today. Letter of the Law proponents however, say that it doesn’t matter what it was FOR, it’s in the constitution and therefore stands. (Note: I realize this issue is way more complicated, I’m just using it to illustrate a point. Ok? Stop yelling. I’m not trying to take away your guns.)

If Justice Scalia is in the Letter of the Law category, he doesn’t necessarily believe that an innocent man deserves to be executed, or tortured. All it means is that he believes the Law, and in particular the constitution, is more important than the fate of a single individual. I hate to admit it, but I kind of, almost, agree with him.

We tend to be pretty casual these days about the constitution. We talk about our “constitutional rights” in reference to things that are not even hinted at in the document, and we dance around with the idea of adding amendments as though they were decorative fonts. All the talk of adding a “marriage protection” amendment scares the spit out of me, and not only because I’m a proponent of gay rights. That people can so easily contemplate adding any amendment at all, much less one that RESTRICTS rights rather than protects them, is terrifying.

Obviously, since the constitution has semi-recent amendments, the constitution CAN (and should) be changed if the circumstances call for it. My point is just that the constitution is important. It is supposed to protect us from the government, corrupt businesses, each other. Even small changes can have unintended consequences. It should not be twisted or taken lightly.

Which brings us to Justice Scalia, and this week’s court case. As far as I remember, the role of Supreme Court is to rule on whether things are constitutional. It is not the role of the Court to rule on whether things are fair. Under the constitution we have the right to fair trial. One. Singular. We can appeal a decision, but we do not have a constitutional right to another fair trial.

Of course it could easily be argued that if an innocent man is convicted, the trial was in someway unfair. In this case there are allegations of police leaning on witnesses and all sorts of shenanigans. The problem is that we can never know anything for sure. Relying on our justice system means sometimes innocent people will be incorrectly convicted of things they did not do, and sometimes guilty people will walk free. It is an imperfect system. A “fair” trial has to be judged by the court having the trial.

I don’t agree with the dissent, I think the court made the right choice. I still don’t think it’s ok to torture anyone, convicted or not, regardless of bombs they may or may not have planted, ticking away. The role of the Supreme Court is not only to read the law, it is to interpret it. If the constitution exists to protect the rights of the individual citizen, it is problematic to claim the paper is more important than the individual. I do however understand the strict, literal reading of the constitution, to the exclusion of any judgment of fairness. The constitution is a big deal, so interpret it, yes, but please do not stretch it all out of shape.

On the other hand, Justice Scalia is still a jerk, and whenever he opens his mouth, he completely weakens his case.

*Photos by Thomas Roche and Ralpe.