My brother Tom called me yesterday to say that if I hadn't read Cal Thomas' latest op-ed piece I just had to drop everything and read it. It was simply too inflammatory to let stand. Since I was in St. Louis visiting my grandparents (more on that in a coming post) I didn't read Thomas' rant masquerading as an essay until just now. Simply put, I am stunned. I've picked Cal Thomas apart here before, but I've always tried to be charitable enough to avoid using phrases like flamingly stupid or ignorant beyond the point of my endurance.
In my last dissection of a Cal Thomas piece, I wrote that "[h]e is more than capable of making a good argument, though he does it less and less these days. But he is trading good reason for a flamethrower, which is not only intellectually dishonest, but morally reprehensible." The more he writes, however, the more I have to wonder whether or not he really can construct a decent argument. After all, building a sound argument, like building anything else, depends first and foremost on where and how you start. If your argument doesn't have a good foundation then it will crumble, no matter what you put on top of it.
Here is the foundation for Thomas' recent blustering:
Which of the following scenarios constitutes cruel and unusual punishment, as prohibited by the Eighth Amendment to the Constitution: (1) aborting a baby with a fully developed nervous system and probably inflicting great pain; (2) murdering a nightclub manager in cold blood; (3) taking 34 minutes — twice the normal time — to execute the murderer of the nightclub manager?
While he is clearly trying to manipulate us into thinking that options (1) and (2) are so obviously cruel and unusual that it would be absurd for anyone to pick (3), in reality, per the way that he is setting up his argument, (3) is the only option one could honestly pick.
Why? Because here we are having a discussion on constitutional law, as Thomas makes clear with his reference to the Eighth Amendment. As such, we can only discuss - per the Eighth Amendment's prohibition against the state's imposing a cruel and unusual punishment on someone found guilty of violating a law - the constitutional value of actions committed by the state. So, the only actions which can be deemed by the Constitution to be cruel and unusual are actions by the state. See the trend here?
In scenario (1), Thomas' graphic depiction of an abortion, the state is not an actor. Thomas is free to argue that abortion is immoral, and he is even free to argue that in most or all cases abortion should be illegal. I am not entirely inclined to agree with him, as I think
a.) that abortion is under limited circumstances morally permissible, and
b.) that outlawing abortion would produce more harm than good, failing to attain the good aim of limiting the number of abortions while simultaneously maximizing the worst possible end, which is an even greater loss of lives as abortions are performed underground rather than in medical clinic.
But we could, of course, have that argument. An argument we could never have, however, is one about whether or not an abortion procedure counts as cruel and unusual punishment per the Eighth Amendment. This is, of course, because the state commits no action in an abortion. As being a fetus is not a crime, and certainly not a capital one; and as being aborted is not the mandated by our criminal justice system or imposed by any state; an abortion may have a positive or negative moral value, it may be deemed to be right, wrong, or somewhere in the vast middle, but it will never be cruel and unusual punishment per the Eighth Amendment, and to claim otherwise is recklessly stupid.
The same is true of scenario (2). While this situation is less morally problematic that the first one (is there a serious debate in this country about the moral value of murder?) it is still not a situation under the purview of the Eighth Amendment, as it was certainly not the state who murdered "a nightclub owner in cold blood." Rather, it is the state who has rightly deemed such an action to be illegal, and in need of the harshest justice which can be legally administered.
So, the only action which could be considered cruel and unusual per the Eighth Amendment is the one in scenario (3), as it is the only action committed by the state. As such, it should be considered apart from the actions in scenarios (1) and (2), as there can be no serious comparison between the three. They simply don't have anything in common.
Bracketing off the moral consideration in abortion, which Thomas has so recklessly introduced here to conflate the topic, I have to ask this question:
Do we want the standard for the moral and legal value of actions committed by the state to be determined by the worst criminal acts? Do we really want murder to be the standard for criminal justice? Do we really want the state to justify the taking of a person's life by saying, like a spoiled preschooler, "He did it first!" or "She started it!"?
If I'm reading Cal Thomas correctly, that's exactly what he's saying.
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