Thursday, August 20, 2009

For Mark Shea ... (he's as likely to read my blog as Antonin Scalia is to read his!)

Mark Shea is an intelligent man but some days he can manage to be extraordinarily stupid. Today is one of those days. He decided to take issue with a [PDF ALERT!] dissenting judgement handed down by Antonin Scalia, associate justice of the US Supreme Court. There is nothing wrong with that, of course; Scalia is as deserving of critical examination as any other jurist. Shea however is lazy and disingenuous in his criticisms. Scalia would have denied an appeal from a man under sentence of death; he did so on the straightforward grounds that there was no constitutional provision (and no legal precedent) allowing the US Supreme Court to hear the case. So far, so routine you might think. Scalia, as is typical for him, expressed himself in forthright language; the sort of language that reminds me of Kenneth Tynan's description of Brendan Behan "ribald, flushed, and spoiling for a fight". Shea parlays that into "Essentially, Scalia argues that it is more important to execute the innocent than to stop the System from killing somebody the System has found guilty according to the System" and goes on to say that
I have this wild notion that if it's a choice between killing somebody who is innocent and bowing down in reverence to the smooth machine-like functioning of a manmade system of rules and regulations, the manmade system can go to hell. And the Constitution is, at the end of the day, a manmade system.
Now this is about the most asinine and idiotic thing that Shea has managed in a disputatious public life that is about 2/3 good sense and 1/3 near criminal idiocy.

The first piece of Sheavian idiocy is that Scalia actually issued a 6 page dissent that is freely downloadable from the US Supreme Court website; Shea never links to it and shows no evidence that he has actually read it. He certainly never quotes from it except at second hand. That is simple laziness, or worse, deliberate neglect of basic diligence. What Shea does link to is a website that is thoroughly hostile to Scalia, and he then takes their version of events as Gospel.

The second piece of Sheavian carelessness is that you get no clue from his blog post that the defendant in the case had a full jury trial, an appeal, a State supreme court appeal and a clemency hearing from the Georgia board of pardons and paroles. The last named element alone took one whole year as they re-examined all the previous proceedings and re-interviewed witnesses and so forth.

So having failed to take account of the argument Scalia actually made, and then having demonstrated total ignorance of every element of the case itself, Shea informs us "I don't have a burning interest in the brilliant defenses of why it's okay to hang an innocent man". I'm not at all clear how someone who has as little acquaintnace as Shea does with this case can know that the defendant is innocent. He doesn't present any argument at all for why this might be the case and he certainly doesn't show how the original trial got things wrong.

Now none of this should be taken to mean that Scalia is necessarily right about the case of Troy Anthony Davis; he might or might not be. What is clear to me is that it is incumbent on anyone choosing to comment publicly on such a matter to inform himself about what has actually happened. Furthermore, if you want to criticise an argument then READ that argument, NOT someone else's secondhand threadbare precis of it.

Lastly, Mark Shea needs to engage in a little quiet reading. He could start with the text of the United States constitution; it's a great document but as he can't even manage a six-page text, he might find it a bit of a stretch. Anyhow, he'd find the separation of powers laid out pretty clearly there. The US Constitution is all about power; taking it, breaking it up and sharing it around. It makes the powerful struggle with each other, so that no one of them gets to have the whole coercive machinery of State at their disposal. Thus Federal battles State, Executive battles Legislature and Judiciary (Federal and State) fights everyone! This marvelous system of decentralised and limited government has lasted since 1787 but because of this one case, which he hardly understands, Shea says that the US Constitution "can go to hell."

So we're left with a distinguished Catholic apologist who is an intelligent man (read his blog, he is definitely a Bear of Big Brain) and who really should stick to apologetics. From would-be constitutional reformers of that stamp, dear Lord deliver us!


berenike said...

From would-be constitutional reformers of that stamp, dear Lord deliver us!

And they are so oddly legion :-(

I think A Man for all Seasons should be compulsory reading, at least once in school and once in university.

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