pageok
pageok
pageok
Kennedy v. Louisiana:
SCOTUSBlog is reporting that the Supreme Court struck down the Louisiana child rape statute 5-4 in Kennedy v. Louisiana on the ground that the statute punihses conduct not intended to cause death, with AMK writing joined by the four liberals. Stay tuned for more.

  UPDATE: The opinion is here. The opinion is rather Roper-esque, on a first read. AMK concludes that "there is a social consensus against the death penalty for the crime of child rape," and that the Justices in the majority agree with this consensus. From the conclusion:
  Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court's own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges.
  These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.
  One response to Justice Kennedy would be that only the Court "established" this proposition; it seems a bit curious to defend the Court's "enmeshed" role by saying that it must be because the Court has given itself that role (especially when its proper application in this case is far from clear). More broadly, does this passage categorically prohibit the death penalty in cases that do not result in death, such as treason? That would be quite a significant change.

  ANOTHER UPDATE: Justice Alito's dissent is pretty devastating, I think. From the dissent:
  A major theme of the Court's opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim," ante, at 35, and may discourage the reporting of child rape, ante, at 34--35.
  These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is "cruel and unusual" punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court's policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using " 'the aegis of the Cruel and Unusual Punishment Clause' to cut off the normal democratic processes," Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.
  Of course, there's a deeper question lurking in the opinions: Is the Eighth Amendment a general tool for invalidating criminal laws that the Justices think are too punitive and therefore unwise? Or is it only a specific tool for invalidating punishments that are way out of the mainstream? I think that's the real 5-4 split on the current Court, and that it explains the vote break-down in this case.
J. Aldridge:
"Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death."

hmmmmmmmmmmmmmmmmmmmm
6.25.2008 10:15am
J. Aldridge:
Tom Goldstein: The Justice Kennedy opinion in Kennedy v. LA is categorical -- the death penalty is forbidden for crimes against individuals that do not result in death.
6.25.2008 10:17am
Ex-Fed (mail) (www):
The cognitive dissonance in the SCOTUS haters today if SCOTUS finds a personal 2d amendment right will be hilarious to watch.
6.25.2008 10:18am
Dave N (mail):
The opinion is here.
6.25.2008 10:20am
Dave N (mail):
On an unrelated note, but I am not sure where else to post it, Justice Scalia wrote the opinion in Giles v. California that was released today. So much for the theory that his lack of a recent opinion meant that he was writing Heller.
6.25.2008 10:24am
3L:
At least we can all take solace in the fact that child rapists are universally reviled, even by mass murderers, and will be shanked to death in the prison yard.
6.25.2008 10:25am
Duh:
[quote]On an unrelated note, but I am not sure where else to post it, Justice Scalia wrote the opinion in Giles v. California that was released today. So much for the theory that his lack of a recent opinion meant that he was writing Heller.[/quote]

Uh, the theory wasn't a lack of a recent opinion, but rather that Justice Scalia is the only one from the MARCH session who has not written an opinion. That is still the case.
6.25.2008 10:26am
Duh:
BTW: This was a horrible decision. How on earth can the 8th amendment not permit the death penalty for this crime, when the very people who wrote the 8th amendment believed that this is a crime for which the death penalty applied?
6.25.2008 10:27am
FantasiaWHT:

A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, demonstrates a national consensus against capital punishment for the crime of child rape. Pp. 11--23.


I always love these arguments. So if 30 or so states started capitalizing child rape, despite such laws being unconstitutional under this case, would the court change its mind?

This approach is ridiculously hypocritical, because it a) recognizes that societal mores can change, b) decrees that such changes will be reflected in the constitution, but c) simultaneous prevents any further constitutional change.
6.25.2008 10:27am
J. Aldridge:
Goldstein says Scalia likely writing Heller, won't come up today.
6.25.2008 10:27am
J. Aldridge:
Ben Winograd: The Chief Justice has announced from the courtroom that the Court will issue all of its remaining opinions tomorrow at 10 a.m. Eastern.
6.25.2008 10:29am
L.A. Brave:
Dave N:
I believe HELLER and GILES are from different terms (i.e., the term in which the case was herd, not when the opinion was released). The rule is one opinion per term, so that means Scalia is on the hook for HELLER.
6.25.2008 10:31am
Chad:
Correction "AMK joined by the other four liberals . . . ."
6.25.2008 10:32am
J. Aldridge:
Ex-Fed wrote: "The cognitive dissonance in the SCOTUS haters today if SCOTUS finds a personal 2d amendment right will be hilarious to watch."

In light what was done to the 8th Amendment today, wouldn't surprise me the court would rule Osama bin Laden has a constitutional right to build an atomic bomb under Times Square.
6.25.2008 10:32am
therut:
The USSC is just pitiful. Let us have a National Referendum of the Death Penalty for Child Rape and see what "our norms" are. Arrogant to the core.
6.25.2008 10:33am
FantasiaWHT:
These types of constitutional decisions only can ever ratchet in one direction, which is why they are so horrible. Even if society changed the other direction,(society's pendulum swings back and forth, not just further and further in one direction) the laws that the court would use as evidence of the change can't be passed.
6.25.2008 10:34am
MJG:
Kennedy has obviously decided that he is the central Justice in these death penalty cases, and the "analysis" continues to go further and further afield. I mean the entire line of cases - which he has played the biggest role in - going beyond the "evolving standards of decency" to the explicit statement that the Court may "bring its own judgment to bear" on the Eighth Amendment is borderline ridiculous.

And I'm not even against this decision! Compare the squishiness of these Kennedy death penalty opinions with those Blackmun/Marshall or even Powell used to pen on occasion. The reality is that, however many years from now, when Kennedy is gone or the court's composition changes one way or another, future cases will wash away this kind of analysis. But the issue is that it will be easy to do so, when each one hangs on inference piled upon conjecture.
6.25.2008 10:35am
krs:
Too angry to say much... after Roper and after this case, I wonder how it is that Justice Kennedy's colleagues and former clerks respect him.
6.25.2008 10:35am
J. Aldridge:
6.25.2008 10:36am
krs:
Agreed with MJG. A Reinhardt or a Blackmun opinion reaching this result would probably be much easier to stomach.
6.25.2008 10:37am
PaulD (mail):
Ex-Fed wrote: "The cognitive dissonance in the SCOTUS haters today if SCOTUS finds a personal 2d amendment right will be hilarious to watch."

There will be no cognitive dissonance from me. I don't have a problem with the Supreme Court as an institution. I have issues with its liberal wing.
6.25.2008 10:38am
Raffi (mail) (www):
On the treason point, the court expressly excludes "crimes against the state" for some reason I can't get my head around (p. 26).

I'll be fascinated to hear learned discussion of this. On a quick flip, Alito's dissent is crushing to me, at least.
6.25.2008 10:38am
FantasiaWHT:
Argh, why do the liberals think that the legislative branches of states have the power to decree constitutional doctrine like this?
6.25.2008 10:43am
Kennedy sucks (mail):
If I ever see Justice Kennedy, I'll be sure to spit in front of him. What a poor excuse for a justice, thinker, and human being.
6.25.2008 10:44am
Jiminy (mail):
Real simple solution here. If they realize that they'd be killed for their crime, they would finish the act of rape with a murder. The ruling makes sense based on that likely outcome.
6.25.2008 10:46am
Dave N (mail):
To all of those who corrected me. You are right. My bad.
6.25.2008 10:47am
FantasiaWHT:
I mean, what wonderful logic - because most states don't allow for something, it must be completely and entirely unconstitutional to allow it!
6.25.2008 10:48am
krs:
Jiminy, that's a perfectly good reason for a state legislature not to make child rape punishable by death.

It's not a good reason for a court to say that the death penalty is "cruel" or "unusual" and therefore unconstitutional when applied to child rapists who don't kill or intend to kill their victims.
6.25.2008 10:49am
cjwynes (mail):
Most of Kennedy's arguments are the usual nonsense that comes into play when the court wrongheadedly takes it upon itself to review punishments for "proportionality", and clearly Scalia was right when he predicted the "direction of change" arguments would turn out to only work one way.

But as a practical matter, I think there's alot of merit in Kennedy's argument that imposing the death penalty in child sex cases presents a peculiar, and probably unacceptable, risk of wrongful execution. Of course, that same risk is unacceptable when it comes to committing somebody to prison for decades, which is all the more reason to overturn Maryland v. Craig.
6.25.2008 10:51am
LHD:
Kill 'em all! They deserve to die, and I hope they burn in hell! In fact, I pray that God will give us judges (b/c it is God who gives us judges, you know) who are comfortable with sentencing all felons to eternal damnation. Amen. Glory, glory, glory to You Lord, God of Love and Mercy. Now let's get some government-sponsored killin' goin'!

Ahem. Sorry. I just wanted to fit in.
6.25.2008 10:53am
FantasiaWHT:
Oh, Kennedy tries to answer my main question by claiming that the consensus won't ever swing back the other direction so it's not an issue. Cute.
6.25.2008 10:54am
DangerMouse:
Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application.

Evolving standards of decency is the biggest bunch of B.S. in the history of the court, even worse than the B.S. penumbras and emanations permitting baby murder.

There ARE no evolving standards of decency. Humanity is still as sinful as ever before. The only thing we're good at is hiding it. This entire rule of interpretation is built on a lie. If the state doesn't adequately punish baby rapists, you can bet your ass that vigilanties will.

This is a fundamentally unjust decision. The Court's dismissal of its role in the process is only based upon a ratchet that permits more restriction of the death penalty. There is nothing like that in the Constitution that permits laws to go only in one direction, with slowly increasing unconstitutionality. It is absurd. There is no way this decision can be defended on any rational grounds at all. It's merely an exercise in power.

In response, I advocate more perp walks ala Lee Harvy Oswald - in public, surrounded by people with guns.
6.25.2008 10:55am
Kennedy sucks (mail):
I only wish Kennedy and the gang of four would hurry up and do what they really want to do and strike down the death penalty. Then we'd actually have a chance of impeaching the bastard or passing a constitutional amendment to correct the Court's errors in its capital punishment analysis.
6.25.2008 10:57am
runape (mail):
"More broadly, does this passage categorically prohibit the death penalty in cases that do not result in death, such as treason? That would be quite a significant change."

No. Kennedy explicitly distinguishes treason and other crimes against the sovereign later in the opinion.
6.25.2008 10:58am
FantasiaWHT:
Best line from the dissent:

The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society.


Damn straight.
6.25.2008 10:59am
SC:
Prof. Kerr, I'm not sure the Court intends the rule to acts such as treason that do not result in death, given the limitation it puts on its rule: "Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and *in cases involving individuals*, for crimes that that teh life of a victim."

Of course, it leaves room for the evolving standards of decency to trump the Constitution's own approval of execution for treason. Count me among Kennedy's (the man and the opinion) critics.
6.25.2008 10:59am
LHD:
Now that I've stirred up the hornets' nest, I have an actual, substantive question, the answer to which I don't know. Prof. Kerr said: "[I]t seems a bit curious to defend the Court's 'enmeshed' role by saying that it must be because the Court has given itself that role. . . ."

If you accept the implication of that argument, wouldn't you be committed to opposing, say, the (current) place of the Supreme Court vis-a-vis the Constitution &the political branches, a la Marbury?

Even if that's not the case, another related, but tangential question: does anyone (who is rational, thoughtful, or worth listening to (and just being controversial is not good enough reason to listen to someone in my book)) seriously argue that Marbury should go? Or is Marbury at that point where to overturn it would be to gut the meaning of stare decisis?
6.25.2008 11:00am
Dave N (mail):
I agree completely with FantasiaWHT. There may be valid policy arguments against the death penalty for child rape, but the "evolving standards" is a one-way ratchet and awful Constitutional jurisprudence.
6.25.2008 11:02am
L.A. Brave:
DangerMouse:
That is just badly and empirically false. Humanity is tremendously more peaceful today than in any other period of history, but believe whatever you want.

Whatever the merits of the case are, the zeitgeist is only moving in one direction. The death penalty is on its last throes.
6.25.2008 11:03am
runape (mail):
"Prof. Kerr, I'm not sure the Court intends the rule to acts such as treason that do not result in death, given the limitation it puts on its rule: "Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and *in cases involving individuals*, for crimes that that teh life of a victim.""

The Court explicitly distinguishes crimes against the sovereign on slip op p.26.
6.25.2008 11:03am
DangerMouse:
If I ever see Justice Kennedy, I'll be sure to spit in front of him. What a poor excuse for a justice, thinker, and human being.

Spit in front of him? Spit AT him. Kennedy needs to be shunned and humiliated for his despicable actions. I advocate protests at his house and his relatives' houses.
6.25.2008 11:06am
Really?:

Whatever the merits of the case are, the zeitgeist is only moving in one direction. The death penalty is on its last throes.


You do realize that there are many in society that will institute the death penalty by themselves, should some animal do something like this to a member of their family.

No law can change this fact. You might not like it, but I know that as a parent, if an animal did anything like this to my kids, they would receive the death penalty. No if's, and's or but's about it.
6.25.2008 11:07am
runape (mail):
Would that blogospheric updates of plain errors likely to feed frenzied partisans came as quickly as updates espousing the author's personal preferences.
6.25.2008 11:07am
krs:
worst Justice since Douglas
6.25.2008 11:07am
OrinKerr:
LA Brave writes:
Whatever the merits of the case are, the zeitgeist is only moving in one direction. The death penalty is on its last throes.
Putting aside the Cheney-esque phrasing, my understanding is that public support for the death penalty has actually been pretty steady in recent decades. See, for example, this chart.
6.25.2008 11:08am
DangerMouse:
Whatever the merits of the case are, the zeitgeist is only moving in one direction. The death penalty is on its last throes.

That is categorically false, or else this law never would've been passed at all. But have fun living in your delusion.
6.25.2008 11:08am
FantasiaWHT:

No law can change this fact. You might not like it, but I know that as a parent, if an animal did anything like this to my kids, they would receive the death penalty. No if's, and's or but's about it.


Same here. The sad thing is that you COULD (constitutionally) be executed by the government for what you did, although I would hope that no jury (or judge) would even convict you of 1st-degree, much less sentence you to death.
6.25.2008 11:11am
DangerMouse:
You might not like it, but I know that as a parent, if an animal did anything like this to my kids, they would receive the death penalty. No if's, and's or but's about it.

When they outlaw guns tomorrow, you'll be forced to use a knife.
6.25.2008 11:14am
Raffi (mail) (www):
Was anyone else struck by the connection between the recitation of the facts highlighting L.H.'s changing story with Kennedy's later claim that the death penalty in these circumstances was bad because of unreliable child testimony? Maybe not significant, but i thought it interesting.
6.25.2008 11:15am
cjwynes (mail):

The rule of evolving standards
of decency with specific marks on the way to full
progress and mature judgment means that resort to the
penalty must be reserved for the worst of crimes and
limited in its instances of application.


This from the last paragraph really cements it. Read those last two paragraphs, and it's clear that the majority sees the law as being on a road to a destination, and that destination looks like it includes -- among other things -- total abolition of the death penalty. There are "marks" along the way, and Kennedy has dutifully taken us one step at a time along that path, but obviously we are only going to be allowed to move in one direction along this line until we reach "full progress" and have completely matured.

This is the most smug, elitist garbage I've read all term. And it shows how lefties completely miss the point of our nation's existence. The Constitution is not a "progressive" document leading the way toward some future evolution of society and law. The Constitution is a recognition of the unchanging, eternal, natural and inalienable rights of man, and sets forth a way for men to govern themselves while respecting those rights. It's time for Trop v. Dulles to be overturned, "proportionality" review to be forbidden, and a less malleable definition of "cruel and unusual punishments" be put in place.
6.25.2008 11:17am
FantasiaWHT:
Raffi, that was my first thought when I started reading the fact section, too. However, the further the facts progressed, the less concerned I was.
6.25.2008 11:18am
Jiminy (mail):
I am not even close to being a lawyer, so my comments come from a simple equation of logic and emotion. I don't pretend to understand how the Justices are supposed to rule or decide, and if I'm supposed to hate them or thank them for their decisions.

At least we can see how they arrive at their conclusions and judge them based on that evidence. Our lawmakers and executives do their best to hide that information and instead tell me that Daddy knows best.
6.25.2008 11:19am
L.A. Brave:
Orin:
As Pinker notes in his talk, there was a crash in violence and crime over history, bottoming around WWII, with a little pick up starting in the 60s. This rise peaked in the 90s and have been pretty much receding since then. Those peaks and valleys seems to coincide with the chart, but we'll see how things ultimately pan out.
6.25.2008 11:20am
Really?:

When they outlaw guns tomorrow, you'll be forced to use a knife.


The could try to outlaw guns, (although I think Heller will go our way), but that doesn't mean I would obey any such laws.

"From my cold dead hand".
6.25.2008 11:21am
OrinKerr:
Dangermouse at 10:06am: Back on your meds, please.
6.25.2008 11:23am
krs:
At least we can see how they arrive at their conclusions and judge them based on that evidence. Our lawmakers and executives do their best to hide that information and instead tell me that Daddy knows best.

"Daddy knows best" is about what the reasoning in Justice Kennedy's opinion comes down to. Unfortunately, we can't vote him out in November.
6.25.2008 11:24am
AJR (mail):
Per Professor Kerr's initial question above:

p.26-27 of Justice Kennedy's opinion: "Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken."
6.25.2008 11:27am
DangerMouse:
The could try to outlaw guns, (although I think Heller will go our way), but that doesn't mean I would obey any such laws.

True. Routine violations of laws will be common as the nanny state clamps down. As state legislatures are forbidden to punish child rapists, as our government is required to release terrorists on bail, as guns are outlawed, people will increasingly take the law into their own hands.

Given our disgusting court system that sees its own power as its only goal, I have to think that people taking law into their own hands is on the whole a good thing.

Amazingly enough, the court sycophants that normally inhabit this blog are scarce today.
6.25.2008 11:28am
DangerMouse:
Dangermouse at 10:06am: Back on your meds, please.

Kennedy is a disgusting person and deserves complete contempt. Why in hell should I respect the man at all?
6.25.2008 11:29am
Jiminy (mail):
krs, can you or someone who understands the concept of the "one-way ratchet" please explain why the legislature could not write a new law that permitted the death penalty for the rape of a child? I see some commenters make note of that, but I guess I don't see how the executive or legislature are prevented from correcting an erroneous Supreme Court ruling by making new law.
6.25.2008 11:33am
Kennedy sucks (mail):
Orin,

I'll grant you that protesting outside his relatives' houses is a bit absurd, but I can certainly understand the anger DangerMouse is feeling right now. (And protesting outside his own place isn't a crazy idea. I don't agree with it, but it's not something that justifies your comment.)
6.25.2008 11:33am
lawstudent:
There sure is a lot of hate on this comment thread . . .
6.25.2008 11:36am
omarbradley:
I hope Kennedy and the liberals are proud of themselves. In the span of a week or so they've ruled in favor of terrorists and child rapists.

It's amazing that the same liberals who think the death penalty is so wrong for taking a life and should be abolished completely or only used for the most serious of crimes seem to have no problem saying that there is a constitutional guarantee to be able to take a life when it comes to abortion, and for the 4 liberals a constitutional guarantee that the state has to pay for it and supply it.

Kennedy is an awful justice. Even if he does affirm the DC Circuit tomorrow his opinions are among the worst in the history of the Court.

This just shows the importance of getting that 5th conservative on the bench. It looks like an uphill battle for McCain but if he is able to win he woulod be able to save the court.

On the bright side, Alito's dissent was oretty strong, although I'm surprised that Scalia or Thomas didn;t write in this case. They usually write in death penalty cases, especially ones as awful as this one dealing with the evolving standards claptrap.

The only thing I can think of is perhaps Scalia was focused on keeping Kennedy on board for his Heller opinion so he didn't want to do anything to rock the boat by criticizing him here.

Also, based on the past few terms, I think it's fair to call Alito and Roberts good choices by Bush.

Well, we all know Kennedy can't wait for Salzburg now. Rights for terrorists and child rapists, he'll be the returning hero.
6.25.2008 11:38am
JWisconsin (mail):
"Amazingly enough, the court sycophants that normally inhabit this blog are scarce today."

Perhaps the ratio of sound to noise in the comments of this thread have led to the conclusion that most of those people posting aren't interested in a discussion? I know that's my conclusion. Professor Kerr succeeds in being civil, polite, and substantive in his post. Could those commenting perhaps strive for the same qualities?
6.25.2008 11:42am
Sarcastro (www):
This decision isn't just wrong, it's Evil! I mean, when one of the parties are Bad People (Terrorists, Child Rapists, or Liberals), they really shouldn't ever get ruling going their way ever! The fact that Kennedy has supported both these groups leads me to believe that he is some kind of Terrorist Child Rapist.

I say we send him to Gitmo and then spit at him. Then we burn him as a witch for consorting with Satan.
6.25.2008 11:44am
justme:
"The Arrogance of Justice Anthony Kennedy" indeed.

The SCOTUS has become the morality police of our country. Wonder what people would think if the "evolving standards of decency" turned suddenly ultra-conservative?

Think it's bad now, wait until Obama is president and we have 4 SCOTUS retirements.
6.25.2008 11:45am
MJG:
I think these opinions from Kennedy would be better if he was less interested in writing florid language about this or that fundamental value and spent more time responding to the dissent's conceptions. I think this would bring his opinions back down to earth. It seems in these cases at least Kennedy likes the style of just announcing The Law as It Must Be and As It Is instead of writing a persuasive opinion and responding to critiques.

I don't really agree that Alito's dissent is "devastating," but I do agree that in the absence of a realistic attempt to counter the dissent's concerns the majority opinion is severely weakened. I just dislike this style of opinion.
6.25.2008 11:46am
U.Va. 3L:
This comment section reads like the letters Hugo Black used to get after desegregation decisions.

(That's not intended to compare the merits of the cases. Only the tone of the commentary.)
6.25.2008 11:47am
OrinKerr:
Dangermouse,

You certainly do not have to respect Justice Kennedy, but I don't think it's civil to urge spitting on him. And you have no basis to call him "a disgusting person," as you do not actually know him. You may not value civility, but I do, and your bizarre personal rants are not welcome here. It lowers the value of this blog and coarsens it; if you want to comment here, keep it civil or I will not permit you to comment.
6.25.2008 11:48am
Kennedy sucks (mail):
JWisconsin,

There are times for sipping cocktails and politely discussing the issues of the day and then there are times where outrage and protest are the proper response. This decision is getting as much respect as it deserves.
6.25.2008 11:50am
JWisconsin (mail):
I'm not suggesting that one has to respect the decision. I'm suggesting that one might choose to respect the people engaging in discussion of it. Or, more to the point, there might be able to be substantive discussion of it if the bulk of the comments showed any interest in such.
6.25.2008 11:53am
Justin (mail):
That's a pretty interesting definition of devastating, particularly since the quoted passage attacks only a minor part of the majority opinion.
6.25.2008 11:54am
stephen jaros (mail):

Justice Kennedy's position is absurd.

The "evolving standards" principle doesn't require that the DP be "restrained" or "limited" to only the "worst of crimes". The principle holds that Amendment 8 should be interpreted in light of "evolving standards of decency of a maturing society", which must mean that the evolving standards are to be respected regardless of whether those standards evolve in a direction towards limiting, OR expanding, the use of capital punishment. After all, we have no way of knowing whether having the DP for a given crime is a mark of societal "maturity" or not.

What an abject failure on the part of Justice Kennedy ...
6.25.2008 11:59am
FantasiaWHT:

krs, can you or someone who understands the concept of the "one-way ratchet" please explain why the legislature could not write a new law that permitted the death penalty for the rape of a child? I see some commenters make note of that, but I guess I don't see how the executive or legislature are prevented from correcting an erroneous Supreme Court ruling by making new law.


The other two branches can only "correct" the Supreme Court when the issue is one of statutory (or regulatory) interpretation. When the issue is whether a law is constitutional as written, the only way any other branch can correct it is by amending the constitution. Or appointing Justices who would be willing to overturn this new precedent.

Any law passed by the federal or state governments making child rape a capital crime will be unconstitutional from its inception, now. Conceivably, they could still pass them, but they couldn't be enforced (and remember, one of Kennedy's arguments is that even among the few states that permit execution of child rapists, enforcement of that execution is rare).
6.25.2008 12:00pm
OrinKerr:
Justin,

I didn't mean to suggest that the quote was devastating, but rather that the opinion was devastating. That's why I said the opinion was devastating, not the quote.
6.25.2008 12:02pm
krs:
Justin, what part of the majority opinion is not addressed by the dissent?
6.25.2008 12:02pm
Dan Simon (mail) (www):
I really don't understand all the vitriol being directed at Justice Kennedy. He's just one of five justices in each of his awful majority opinions, and he's obviously writing the opinion primarily because he's the swing vote, not because he's particularly influential or militant in promoting his point of view.

I suspect that what gets rabid political partisans so worked up about Kennedy is that he's perceived as a turncoat, which is worse than a diehard opponent. Ginsburg is Ginsburg, after all--but Kennedy was supposed to be on "our" side!

Personally, I see one consistent trend in Supreme Court opinions: sometimes the left wins, sometimes the right wins, sometimes "originalism" wins, and sometimes "living Constitution" jurisprudence wins, but through it all, the Supreme Court's power to overrule the democratically elected branches of government, and replace their wishes with its own, always seems to expand, and never to retreat. And the number of people who complain about that consistently--as opposed to only when it suits their political preferences to do so--always seems to be vanishingly small.
6.25.2008 12:07pm
Orion:
As a firm opponent of the death penalty, I wish I could feel vindicated by this decision, but instead I just feel nauseated. So first, we engage in this ridiculous exercise in state counting. So what the federal constitution says depends on what the state legislatures do, and if enough states pass unconstitutional laws, suddenly they become constitutional. I cannot believe that opinions endorsing this absurdity continue to gain the support of five justices of the supreme court.

Then, of course, we must weigh in with "our own judgment" on the issue -- ugh, don't even want to go there.

I've long considered myself a believer in the idea of the "living constitution", but as time goes on, I become more and more convinced that Scalia-style originalism is the only principled philosophy of Constitutional interpretation (as much as the results might often be unpalatable to me as a matter of policy).
6.25.2008 12:09pm
alkali (mail):
Duh writes:

This was a horrible decision. How on earth can the 8th amendment not permit the death penalty for this crime, when the very people who wrote the 8th amendment believed that this is a crime for which the death penalty applied?

I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)

Incidentally, if that's correct, I don't think that would provide a basis for holding that such crimes are not constitutionally punishable by death. To the contrary, I think that would show the limited value of looking to historical context to establish what crimes may be punishable by death.
6.25.2008 12:10pm
JWisconsin (mail):
Regarding the one-way ratchet problem...Eric Posner just posted the following on the Convictions blog on Slate.com. I'm not entirely persuaded (and would argue that anti-abortion legislation provides a counter to the claims about legislatures not passing laws they know are unconstitutional) but it's a good explanation of the argument:

"Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a "national consensus" against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that punishment in any remaining state that continues to use it or any state that introduces it.

This rule acts as a ratchet. When a punishment falls to the 10-state threshold, it ceases to be permissible. If people in the various states change their minds and come to believe that the punishment is justified, legislatures will not be able to enact the punishment without violating the Constitution. It seems likely that they will therefore not bother, and so a new consensus in the other direction cannot get started. Perhaps, in the rare instances when a national consensus will develop quickly, dozens of states will enact the law even though it violates the Constitution, and courts will recognize a change in the consensus. But this is likely to be rare, and it loads the dice against national consensuses developing in favor of harsher punishments.

If the Eighth Amendment is just about national consensus or some such thing, why can't a consensus emerge in favor of a punishment that previously had been barred? The dissent in Kennedy v. Louisiana makes this argument, which is acknowledged but rejected (without any attempt at justification, as far as I can tell) by the majority.
Is there any justification in political, constitutional, or moral theory for such a ratchet? I don't see one. There is an old, simple-minded Whig view that human history reflects progressive moral development, and perhaps the idea is that courts can prevent temporary backsliding caused by public overreaction to ephemeral events—and such rhetoric about society "maturing" can be found in Justice Kennedy's majority opinion. But this view took a hit in the 1930s and has never recovered. And even if it were correct, a society might "mature" by introducing new harsh punishments against behavior—such as spousal and child abuse, or, say, honor killings of daughters—that earlier generations found unobjectionable. Current Eighth Amendment jurisprudence, or at least the logic behind it, would block such moral evolution."
6.25.2008 12:10pm
Ben Franklin (mail):
I used to have a Japanese boss who, when hearing certain American ways of phrasing things, would simply reply "that has no meaning." "Evolving standards of decency" is one of those phrases that is content free. It can mean whatever you want it to mean and thus means nothing. You would think that with all of the money spent on their legal educations they could come up with a better fig leaf for writing their preferences into law. The lack of effort in such direction points to either a lack of intellect or a lack of shame. I am not sure I would find one more comforting than the other.

BTW, I don't think it would necessarily be a bad policy to limit the death sentence to murderers but that would be only my own policy preference. Unfortunately, not everyone seems able to make such distinctions.
6.25.2008 12:17pm
Orion:
By "Scalia-style originalism is the only principled philosophy of constitutional interpretation" I mean to say that I fear that any interpretational philosophy that tries to take into account "evolving standards" must inevitably devolve into deciding cases based on the policy preferences of the judge(s). I'm not ready to say that constitutional interpretation should necessarily be restricted to what those who wrote it intended to say at the time, but I also don't see any way to get around this problem.
6.25.2008 12:17pm
H. Tuttle:

AMK concludes that "there is a social consensus against the death penalty for the crime of child rape," and that the Justices in the majority agree with this consensus.


I cannot express fully my growing disdain and disgust for a jurist I once admired, but who, IMHO, has abandoned his proper role on the Court in recent years. It's not for the court to ferret out "social consensus" but to state whether X is or is not Constitutional. The dissenters are absolutely correct.
6.25.2008 12:22pm
AngelSong (mail):

Think it's bad now, wait until Obama is president and we have 4 SCOTUS retirements.

From your lips to God's ears...
6.25.2008 12:23pm
Student:

I guess I don't see how the executive or legislature are prevented from correcting an erroneous Supreme Court ruling by making new law.


In our system the Constitution is the "highest" law we have and other laws (like statutes passed by the legislature or executive orders) that conflict with it are invalid. By purporting to find a constitutional prohibition of the death penalty in these cases the court invalidates both existing statutes, and prospective statutes (new ones the states might enact in the future) that don't comply with what they think the Constitution says. The only "solution" (if you think the law should be something different) is a new decision by the court overruling this one (new justices are appointed and they think this court "got it wrong") or a constitutional amendment (requiring 2/3 vote in Congress and ratification by 3/4 of the states).
6.25.2008 12:24pm
krs:
Dan Simon, the vitriol is because Justice Kennedy writes such awful, lawless, self-indulgent opinions, particularly on the death penalty. He makes things up as he goes along, no argument is too weak to be included, and at the end of the day it comes down to his own personal morality, which apparently comes from his books.

The other eight Justices are either better at dressing up their personal preferences as "law," or they're better at being actual judges. Justice Kennedy trotted out the state-counting approach in Roper, and now that it doesn't support the result he wants in this case, he's pulled it back.

I have no idea what he's like as a person, but as a Supreme Court Justice, he deserves nothing but contempt.

And the vitriol isn't necessarily partisan. His opinion in Gonzales v. Carhart (2006-07 term, partial birth abortion) was similarly awful, and his concurring opinion in Hein v. Freedom From Religion is just a joke.
6.25.2008 12:25pm
Student:

I think these opinions from Kennedy would be better if he was less interested in writing florid language about this or that fundamental value and spent more time responding to the dissent's conceptions. I think this would bring his opinions back down to earth. It seems in these cases at least Kennedy likes the style of just announcing The Law as It Must Be and As It Is instead of writing a persuasive opinion and responding to critiques.



One almost gets the sense that the court no longer believes its opinions need be persuasive. Of course given the number of decisions that are really hard to defend and yet still respected, who can blame them?
6.25.2008 12:28pm
justme:
I used to have a Japanese boss who, when hearing certain American ways of phrasing things, would simply reply "that has no meaning." "Evolving standards of decency" is one of those phrases that is content free. It can mean whatever you want it to mean and thus means nothing.

I couldn't have said it better.

"It should not be introduced into our justice system, though, where no death has occurred" (p.30)

What the heck not Justice Overlord Kennedy?
6.25.2008 12:29pm
Corkie the Dog:
L.A. Brave:

That was a great talk. Thanks for providing the link.

Sincerely,
Corkie the Dog
6.25.2008 12:30pm
justme:
And he quotes Lenor Walker... I wonder whether the feminists will see today's decision as a crime of violence against women...
6.25.2008 12:33pm
FantasiaWHT:

Regarding the one-way ratchet problem...Eric Posner just posted the following on the Convictions blog on Slate.com. I'm not entirely persuaded (and would argue that anti-abortion legislation provides a counter to the claims about legislatures not passing laws they know are unconstitutional)


I don't think this case leaves any sort of grey area where states can test the boundaries with various types of restrictions, as they can with abortion.
6.25.2008 12:34pm
AngelSong (mail):
Am I the only one who found irony in Justice Alito writing a dissent in support of capital punishment?

Also, I would point out to the vermin who are shrieking that the sky is falling that this wasn't a habeas proceeding. It's not like the alternatives in this case are death or freedom. Life with no possibility of parole is not exactly a trip through the Elysian fields. In fact, many of us who oppose the death penalty might suggest that a quick and painless death is too good for the rapist.
6.25.2008 12:34pm
Poorly Conceived Statement (mail):
Professor Kerr or others:

What can it possibly mean to say, as Justice Kennedy does at 9, that retribution, of all the rationales of punishment, "most often contradicts the law's own ends"? Justice Kennedy then goes on to make the point that the retributive rationale for the death penalty "risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." Setting aside the argument that this represents a very thin and unsatisfying understanding of retributivism, why cannot the other functions of punishment mentioned by the Justice equally "contradict the law's own ends...transgressing the constitutional commitment to decency and restraint." With all due respect to Justice Kennedy, this was a completely unnecessary and unsupported statement. Why make it, other than to pad a decision with something that sounds profound?
6.25.2008 12:36pm
DangerMouse:
OrinKerr,

Fine, I won't advocate personal injury to the Justices HERE. But if you think that what I'm saying is out of the ordinary, you need to get out more. People in America know that the Court is a sham, and that people like Kennedy are tyrants hiding behind a curtain, and they're not going to put up with it much longer. The delusion is that by treating as respectible what normally should be contemptible, you're acting civilized. All you're doing is putting lipstick on a pig.
6.25.2008 12:39pm
krs:

Also, I would point out to the vermin who are shrieking that the sky is falling that this wasn't a habeas proceeding. It's not like the alternatives in this case are death or freedom. Life with no possibility of parole is not exactly a trip through the Elysian fields. In fact, many of us who oppose the death penalty might suggest that a quick and painless death is too good for the rapist.


For my part, I couldn't care less about whether Patrick Kennedy is lethally injected 15 years from now when his habeas stuff fails or whether he dies in prison. What bothers me is the lawlessness of the decision.
6.25.2008 12:43pm
avery:

Dangermouse wrote:
Given our disgusting court system that sees its own power as its only goal,


It's a good thing that the Executive and Legislative branches never do anything to increase their power - indeed it is a good thing that legislators and executivese are so power averse that they never even seek re-election.
6.25.2008 12:53pm
J. Aldridge:
alkali wrote: "I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)"

It was considered serious on a federal level. In 1807 when Congress limited the use of the death penalty for many crimes, death for rape remained.
6.25.2008 12:58pm
Talkosaurous:
AngelSong wrote:

Also, I would point out to the vermin who are shrieking that the sky is falling that this wasn't a habeas proceeding. It's not like the alternatives in this case are death or freedom. Life with no possibility of parole is not exactly a trip through the Elysian fields. In fact, many of us who oppose the death penalty might suggest that a quick and painless death is too good for the rapist


I'd like to point out the irony of asking for civility while calling everyone who doesn't agree with you 'vermin'. One can also call attention to the fact that many times heinous offenders lack real social functionality to begin with, and that the structured life of prison, complete with meals taken care of and entertainment accessible, is personally acceptable to them. I understand that proposition would be absurd to a normal person, but heinous offenders are most time far from normal people. So there exists on principal the situation that you may put an offender into a situation of acceptability for them, on the publics money, as 'punishment'.

Even so, that's all off-topic to the central issue, and in that this reminds me of the SSM topic(s) of awhile back. The Judiciary goes beyond legal boundaries into purely subjective social choices that should be handled by the Legislator, and proponents of the social outcome cheer. In this case, the thread is suspiciously filled with folks not dealing with Judiciary conduct, but the convenience of this decision to the anti-Death Penalty crusade.
6.25.2008 1:04pm
Aultimer:

"Evolving standards of decency" is one of those phrases that is content free. It can mean whatever you want it to mean and thus means nothing.

Can you seriously advocate that "cruel and unusual punishments" is content-rich?

I'm for killing rapists of all kinds (among certain other non-murderers), so I WOULD appreciate a practical explanation of what I'm supposed to do to help those standards evolve, rather than being dismissed as missing the point.
6.25.2008 1:07pm
DiverDan (mail):
The Kennedy opinion is indeed disturbing in its level of arrogance, and its complete disregard for the policy decisions of the democratic branches. But please, don't heap ALL your scorn on Kennedy - remember, this opinion would be powerless but for the four sniveling weasels willing to join it in order to achieve their own ends of seeing the abolition of the death penalty.
6.25.2008 1:07pm
MarkField (mail):

I hope Kennedy and the liberals are proud of themselves. In the span of a week or so they've ruled in favor of terrorists and child rapists.


I can't speak for all liberals, but speaking for myself only, I am very proud of the Court for these decisions.

OTOH, the rage I see expressed on a blog even such as this is disturbing in the extreme.
6.25.2008 1:11pm
asdf:
From an engineering perspective: the text says cuel AND unusual. If a punishment is one but not the other it does not really violate the curel and unusual.
6.25.2008 1:14pm
DangerMouse:
this opinion would be powerless but for the four sniveling weasels willing to join it in order to achieve their own ends of seeing the abolition of the death penalty.

Tut tut! We must be civil! You're supposed to SMILE when your masters enslave you. That's the ticket.
6.25.2008 1:16pm
Jiminy (mail):
Thanks to those who helped me understand the one-way ratchet concept of these sorts of cases. I see that without a Congressional ratification or a new set of judges, these decisions would remain in place and invalidate any existing or new laws. Very interesting.
6.25.2008 1:17pm
J. Aldridge:
MarkField: You mean you are proud of judicial fiat, right?
6.25.2008 1:22pm
DangerMouse:
OTOH, the rage I see expressed on a blog even such as this is disturbing in the extreme.

Yeah, rage against Tyrants has no place in our policial discourse!

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

That darn Jefferson. Such an uncivil guy.
6.25.2008 1:22pm
Tom Cross (www):
In the absense of a clear national concensus on this issue, one way or the other, isn't it safer to forgo executing people until such a concensus is reached?
6.25.2008 1:22pm
J. Aldridge:
Tom Cross: It's supposed to be a local consensus issue, not a national one. Chief Justice John Marshall, McCulloch v. Maryland:

No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into into one common mass. Of consequence, when they act, they act in their States. … In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.
6.25.2008 1:27pm
Dilan Esper (mail) (www):
I can't stand using the acts of state legislatures to tease out some evolving standards of decency any more than the conservatives here can. But the fundamental problem-- and the reason why Alito is wrong-- is that the Eighth Amendment is an open-ended constitutional provision that tells the courts to determine, without any practical standards for guidance, what constitutes stepping over the line and imposing a punishment that is too extreme.

Thus, rhetoric about leaving things to the legislature or about the undesirability of judges making policy arguments doesn't really get us anywhere in interpreting the Eighth Amendment. Nor does originalism-- nobody but the most closed-minded person (or a person who really thinks there's nothing wrong with cruel punishments) would say that anything that was in practice in 1791 could never be barred no matter how cruel it was.

So, in the end, the cruel and unusual punishment clause isn't going to mean anything else but whatever 5 justices on the Supreme Court say it means. They may dress it up with legal reasoning, but that's the truth. And those looking for a principle are going to be disappointed.
6.25.2008 1:29pm
Anon321:
One thing that struck me when reading the opinion: the petitioner's brief takes the position that Coker controls the result in this case -- the Court may have described the victim in that case as an adult, but the holding simply says that execution is a disproportionate punishment for a crime that doesn't result in death. Petitioner's counsel has said that he briefed it that way to give Justice Kennedy cover to rule for them solely on the basis of precedent.

It's interesting, then, that Kennedy explicitly says that Coker did not extend to cases of child rape. I think Justice Alito has the better of the argument overall, but I like the fact that Kennedy acknowledges the ambiguity of Coker and disavows it as the basis for this decision.

The takeaway might be that if Kennedy's going to rule for you, he doesn't need no stinkin' precedent for cover -- he's going to be with you in full force (I think Dahlia Lithwick made a similar point a few days ago, in the Slate article contrasting Kennedy with O'Connor).
6.25.2008 1:31pm
alkali (mail):
J. Aldridge writes:

alkali wrote: "I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)"

It was considered serious on a federal level. In 1807 when Congress limited the use of the death penalty for many crimes, death for rape remained.


I'm having trouble finding the act of Congress you're referring to here. (Indeed, I was under the impression that federal criminal law was mostly common law until 1812.) If you have a cite I'd be obliged.
6.25.2008 1:32pm
wooga:
social consensus is supposed to be determined by the vote of the people, either directly or through their legislature.

When the hell did the judiciary become the branch charged with divining social consensus? It is the social consensus that leaving the toilet seat up is wrong, so we declare such activity to be a federal crime!
6.25.2008 1:33pm
Guest27 (mail):
1)Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death."

Leaving aside the disturbing constitutional analysis, could states test this language by enacting a statute that provides for the death penalty for child rapists who were also intent on killing the child, but for whatever reason, failed?

2) How is the rape of a child any less of a crime against the state than the crimes of a drug kinpin or trafficker?
6.25.2008 1:36pm
Kingsley Browne (mail):
Is everyone else as puzzled as I by the statement

"We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals . . . "?

I can understand separating out treason and espionage from other crimes -- and maybe "terrorism," properly defined. But what about "drug kingpin activity"? Why is that categorically different from, say, insider trading or prostitution? If the answer is that "drug kingpin activity" rots the state from the inside, then what about bribery of public officials? Doesn't it do so, as well? By definition, all crimes are offenses against the state, whether or not there is an individually identifiable victim. This purported distinction drawn by the opinion is just more Kennedy ipse dixit.
6.25.2008 1:37pm
Evolving standards of decency:
There's a lot of anger in this here wingnut echo chamber. Standards of what is and is not decent do evolve. The idea that there is some immutable "decency" that was set in stone at the time of our nations founding is contradicted by the fact that a number of punishments at the time of the founding — including the broad scope of the death penalty — are no longer practiced anywhere in the United States. Failing to recognize such changes would render the 8th Amendment a cypher — with no effect whatsoever against punishments levied in retrograde
6.25.2008 1:37pm
Evolving standards of decency:
"Yeah, rage against Tyrants has no place in our policial discourse!"

"That darn Jefferson. Such an uncivil guy."


Serious delusions of grandeur, my friend.
6.25.2008 1:40pm
L.A. Brave:
Aultimer:
I'm for killing rapists of all kinds (among certain other non-murderers)
That is a fairly extreme opinion. When you consider the murky issues of consent, and the fact that estimates of false allegation range from 10 to 40%, your claim is rather staggering.
6.25.2008 1:40pm
Guest27 (mail):
Kingsley,

Well said. I think your answer to our joint inquiry is the only plausible one, and to say that it is weak is a gross understatment.

If anyone has any doubt that Kennedy was reaching for a result without having any ability to justify his conclusion, this problem should change your mind.
6.25.2008 1:40pm
Kingsley Browne (mail):

Anon321: It's interesting, then, that Kennedy explicitly says that Coker did not extend to cases of child rape. I think Justice Alito has the better of the argument overall, but I like the fact that Kennedy acknowledges the ambiguity of Coker and disavows it as the basis for this decision.


A cynic might point out that Kennedy relied on the fact that Coker did not extend to child rape in order to show that even though legislatures were free after Coker to authorize the death penalty for child rape, few did so. So, either interpretation of Coker supports Justice Kennedy's position (in his eyes).
6.25.2008 1:44pm
Guest27 (mail):
On second thought, the fact that the death penalty for drug trafficking is not any different than child rape leads to the conclusion that the former is also unconstitutional. The inconsistency isn't a problem (for Kennedy) if you are on the way to striking down the death penalty altogether.
6.25.2008 1:46pm
Aultimer:

L.A. Brave:

When you consider the murky issues of consent, and the fact that estimates of false allegation range from 10 to 40%, your claim is rather staggering.

I didn't say I'm for killing accused rapists, so false allegations aren't relevant. Of course, there are practical problems in identifying the guilty, but it's mere sentimentalism (or religious dogmatism) to prefer life imprisonment to the death penalty. Like non-vegetarians who can't bring themselves to butcher an animal.
6.25.2008 1:52pm
MarkField (mail):

MarkField: You mean you are proud of judicial fiat, right?


This comment makes no sense. Every judicial opinion, no matter which way it goes, is determinative.

What I'm proud of is that the Court has the cojones to stand up for principle in an era in which Congress certainly doesn't and the Bush Administration regularly violates it.


Yeah, rage against Tyrants has no place in our policial discourse!

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

That darn Jefferson. Such an uncivil guy.


I'm all for rage against tyrants. But that's no part of political discourse (at least in the ordinary sense), that's part of revolutionary discourse.
6.25.2008 1:53pm
Dilan Esper (mail) (www):
Guest27-- I think it is simpler than that. A lot of ink was spilled in the briefs on the issue of slippery slopes, specifically that the death penalty for treason would be called into question by a ruling for Mr. Kennedy.

So the majority is distinguishing crimes "against the state", whatever that means, from crimes "against an individual", so they can preserve the death penalty for treason.

The reason he mentions drug kingpins is because the slippery slope argument often string-cited all the federal death penalty statutes for non-murder offenses, and said they would all be called into question. The majority is saying, at the very least, "wait for another case", and I suspect they would uphold the death penalty for treason but might strike it down for drug trafficking (absent a death) if that case were presented.
6.25.2008 1:54pm
J. Aldridge:
alkali, I think I was in error on the date, it is 1897 I believe. Here is a copy of the report of the bill:


Limiting Capital Punishment. — The bill reducing the cases in which the penalty of death shall be inflicted, which attracted much interest, was passed by both houses and became a law.

It does away with the death penalty in all cases except murder, rape, and treason; and in case of murder or rape the jury is authorized to qualify a verdict by adding "without capital punishment." In the report on the bill, its purpose is explained as follows:

The offenses to which the death penalty was affixed during the colonial times were adopted from the English code and re-enacted in the federal statutes after the adoption of the constitution. Few changes have been made during the last century. At this time there are sixty offenses for which federal laws prescribe the death penalty, positively or conditionally, as a military or naval court-martial may, in its discretion, direct. There have been no executions for many of these offenses for a long term of years. Their existence in the statutes gives a sanguinary character to our laws inconsistent with the spirit of the people and of the age. Your committee recognize the strength of the arguments presented by the advocates of the abolition of the death penalty, supported as they are by statistics and the satisfactory experience of states and countries in which partial or total abolition ha.s been tried; and several members of your committee are fully prepared to recommend the total abolition of the punishment of death. Hut others believe this penalty to be a great deterrent, and that the people are not, at this time, ready for total abolition; therefore your committee unanimously recommend that for the crimes specified in this bill the punishment of death be retained, with the limitations provided herein, and that for all other crimes for which this penalty is prescribed under existing laws this punishment be totally abolished."
6.25.2008 1:54pm
Bob from Ohio (mail):

Is the Eighth Amendment a general tool for invalidating criminal laws that the Justices think are too punitive and therefore unwise?


Yes, of course, that is what they think.

As I have said repeatedly here, on many, many issues, the SC and the lower federal courts have totally abandoned the judicial function in favor of the policy making function. Both left and right.

They do it because they keep getting away with it. Sooner or later they will overstep.

As for the comment regarding Marbury v. Madison, I certainly advocate its demise but the chances are less than zero so why bother.
6.25.2008 1:55pm
alkali (mail):
J. Aldridge writes:

alkali wrote: "I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)"

It was considered serious on a federal level. In 1807 when Congress limited the use of the death penalty for many crimes, death for rape remained.


On further review, I strongly suspect you are thinking of An Act To Reduce The Cases In Which The Penalty Of Death May Be Inflicted, c. 29, 29 Stat. 487 (1897). (If I am wrong about this, please let me know.)

To be clear, I think it was always the case that rape of adults was treated as a serious crime. I seem to recall historians finding that sexual assaults on children were taken less seriously, perhaps because of a misguided believe that children were "innocent" and therefore wouldn't be seriously affected by such assaults. Again, any insight on this issue would be appreciated.
6.25.2008 1:57pm
3L:

1)Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death."

Leaving aside the disturbing constitutional analysis, could states test this language by enacting a statute that provides for the death penalty for child rapists who were also intent on killing the child, but for whatever reason, failed?



Could we maybe define rape as an act "intended to cause the death of a child"?
6.25.2008 2:00pm
J. Aldridge:
alkali, I think follow you now. I am not aware of any distinction to age for severity considerations whether by statute or custom.
6.25.2008 2:07pm
Guest27 (mail):
Dilan,

So we agree that the "crimes against the state" distinction isn't worth the paper it is printed on?

The fact they are saving it for another day doesn't say much about the reasoning of the argument itself.
6.25.2008 2:17pm
Tom Cross (www):
Alito writes:

The Court also fails to mention that in Louisiana, since
the state law was amended in 1995 to make child rape a
capital offense, prosecutors have asked juries to return
death verdicts in four cases. In two of those cases, Louisiana juries imposed the death penalty. This 50% record is hardly evidence that juries share the Court's view that the death penalty for the rape of a young child is unacceptable under even the most aggravated circumstances.

Juries are asked to decide how the facts of the case fit with the law as presented to them by the court. They are not asked to evaluate whether or not they agree with the law. If Supreme Court justices are going to be interpreting a Jury's verdict as an endorsement of the law, this would bolster the argument that juries have the right to nullify laws that they don't agree with.
6.25.2008 2:22pm
DangerMouse:
As I have said repeatedly here, on many, many issues, the SC and the lower federal courts have totally abandoned the judicial function in favor of the policy making function. Both left and right.

They do it because they keep getting away with it. Sooner or later they will overstep.

As for the comment regarding Marbury v. Madison, I certainly advocate its demise but the chances are less than zero so why bother.


I agree also. I would love to see Marbury abandoned. Barring that, I'd advocate wholescale repeal of much of the Judiciary that was promulgated by statute. I'd basically get rid of most federal courts entirely, including the district courts. They're far too dangerous. The less of them, the better. If that doesn't fix things, get rid of Article III and replace it with something else.

I'm not so sure that the people will react to a grevious overstep by the Court, though. The Court has overstepped, and is overstepping, all the time. Don't forget that approximately half the country is an advocate of increasing Court mastery over our democratic way of life, lest the holy-of-holies (abortion) be disrupted. People want their sacrifice to Moloch protected by the Elites, after all. But to decent people, the Supreme Court as an institution is wholly corrupt and is irredemably an enemy of society.

The fantasy that lawyering and arguing before the Court matters employs a lot of people, and makes a lot feel better about themselves. Don't underestimate this power of that illusion, either. People have been putting up with the Court's oversteps for years now, lest their world come tumbling down. But once you realize the implications of the sham, then a practicioner probably has to find a different line of work (like dealing with a regulator, instead of a judge).

Expect the Court to keep getting away with it for a long, long time. It'll last as long as the American Republic lasts, which might not be so long.
6.25.2008 2:27pm
chiefbreakevryting:
Seems to me that "standards of decency" and "social consensus" are more likely to be represented in the deliberations of democratically elected legislators than in the insular musings of appointed jurists.
6.25.2008 2:27pm
AngelSong (mail):

I'd like to point out the irony of asking for civility while calling everyone who doesn't agree with you 'vermin'.

I'd like to point out the username of one of the most hysterical shriekers on the blog...
6.25.2008 2:31pm
Mike& (mail):
The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society.


Read broadly, this would mean no more balancing tests in criminal procedure cases. It's about the rights of the accused, not societal interests. I doubt, however, that this thinking will show itself in other crim pro cases.

There is something extraordinarily Orwellian about Alito's opinion. "Hey, the Eight Amendment is about protecting the accused. So we need more reasons to kill you."

Or, in the immoral words of Judge Smails: "I've sentenced boys younger than you to the gas chamber. Didn't want to do it. I felt I owed it to them."
6.25.2008 2:40pm
MPP (mail):
Orin:

I don't read Alito's dissent as devastating at all. In fact, it's fairly inconsistent.

For example, he says: "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty."

I have to say, this is "simply not pertinent to the question whether the death penalty is 'cruel and unusual' punishment."
6.25.2008 2:48pm
krs:
MPP, under the state-counting approach that Justice Kennedy pulled out his posterior in Roper v. Simmons, it is pertinent.

...if you assume that the Roper majority was being honest and wasn't just willing to say anything to support an opinion taking another bite out of the death penalty.
6.25.2008 2:55pm
krs:
Mike&, saying that something is "protects the right of an accused" doesn't mean that it's an amorphous command to do whatever protects someone accused of a crime.
6.25.2008 2:57pm
FantasiaWHT:

I have to say, this is "simply not pertinent to the question whether the death penalty is 'cruel and unusual' punishment."


BS. The large portion of Kennedy's argument is based on the belief that what state lawmakers have to say about a practice IS "pertinent to the question whether the death penalty is cruel and unusual punishment". In fact, it was not only pertinent to Kennedy, it was determinative.
6.25.2008 3:00pm
genob:
Well if nothing else, Kennedy is consistent..In the Exxon case today, he thinks harsh punishment for corporations is too much. No one should be punished harshly.
6.25.2008 3:03pm
Brian G (mail) (www):
This is yet another of Justice Kennedy's usurpation of the legislative process because he doesn't like the death penalty. Oh well. At least the law schools will regard him as a hero.
6.25.2008 3:03pm
Clayton E. Cramer (mail) (www):

Also, I would point out to the vermin who are shrieking that the sky is falling that this wasn't a habeas proceeding. It's not like the alternatives in this case are death or freedom.
The real problem here isn't the result. The real problem is the lack of honesty in applying the Constitution. I'm not a fan of the death penalty, but when the Framers adopted the Eighth Amendment, there were gobs of capital crimes besides murder and treason. Pennsylvania was one of the liberal states; it had just removed sodomy, rape, and burglary from the capital crime list in 1786. This notion of "evolving standards" really means, "We don't want to follow the Constitution, so we'll just make this stuff up as we go along."
6.25.2008 3:08pm
ejo:
at the same time, former justices like O'Connor and establishment figures of the Bar whine that it is unfair to criticize the Supremes and other courts for their rulings. this was an I don't like the death penalty opinion, nothing more and nothing less, to hell with the majority of folks who believe otherwise. this evolving standard nonsense is, simply, a lie-put it to a vote and let's see where actual society (not 5 black robed morons) stand on the issue. it wouldn't matter, though, as Kennedy would still have issued the ruling he did as the reasoning presented is a lie.
6.25.2008 3:09pm
Suzy (mail):
What concerns me most about the conclusion of the opinion is this phrase: "In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense."

Why is that relevant to this decision? Doesn't this invite the question of why justice is not always better served by allowing the prisoner to be confined, etc?

You would think the only relevant issue is deciding whether the death penalty is cruel and unusual punishment for child rape. Evolving standards of decency must have some place in this judgment, right? Otherwise, how do we know what qualifies as "cruel and unusual", unless we want to embrace exactly and only the punishments that "most" people would have accepted at the nation's founding? I can't fault the Court for trying to determine this. However, shouldn't they stick to that, rather than bringing in extraneous considerations about which policies are more just? Isn't that the legislative branch's job? And I say this as a death-penalty opponent, I might add.
6.25.2008 3:13pm
Clayton E. Cramer (mail) (www):

I'm not sure that this is true. I seem to recall that historical surveys have found that prior to the twentieth century, sexual assaults on children were often not regarded as very serious. (If someone can confirm either way please do.)
From the 1809 session laws of Maryland at Archives of Maryland 570:91:

6th. Every person duly convicted of the crime of rape, or as being accessary thereto before the fact, shall, at the discretion of the court, suffer death by hanging by the neck, or undergo a confinement in the said penitentiary for a period of time not less than one year nor more than twenty-one years, under the same conditions as are herein after prescribed. 7th. if any person shall carnally know and abuse any Woman-child under the age of ten years, every such carnal knowledge, shall be deemed felony, and the offender, being convicted thereof, shall, at the discretion of the court, suffer death by hanging by the neck, or undergo a confinement in the penitentiary for a period not less than one year nor more than twenty-one years, to be dealt with according to law: 8th. Every person duly convicted of the crime of sodomy, shall be sentenced to undergo a similar confinement for a period not less than one year nor more than ten years, under the same conditions as are herein after directed.
Notice that "carnal knowledge" would seem to cover not just forcible rape, but what we today call statutory rape--and the punishment is just as severe either way.

Now, it is the case that child molestation that does not involve sexual intercourse created some serious legal problems in the Colonial period. I recall that William Bradford's Of Plimouth Plantation mentions a case where a man had engaged in "uncleanness" with a nine year old girl, but had not actually penetrated her. They were unable to find an exact criminal offense to charge him with, and they contacted the legal authorities in Boston to see if they could figure out a way to charge him with a capital crime, but they could not.
6.25.2008 3:18pm
Russ (mail):
In the absense of a clear national concensus on this issue, one way or the other, isn't it safer to forgo executing people until such a concensus is reached?

Imagine this statement in 1861:
In the absense of a clear national concensus on the issue of slavery, one way or the other, isn't it safer to forgo forcing emancipation on people until such a concensus is reached?
6.25.2008 3:35pm
Russ (mail):
The problem here is the Court making law, rather than applying it. And those that try to point out that the Legislative and Executive branches sometimes overreach in their power, their is always something that comes back to rein them in. The next time I see the Supreme Court reined in will be the first.
6.25.2008 3:38pm
FantasiaWHT:

This notion of "evolving standards" really means, "We don't want to follow the Constitution, so we'll just make this stuff up as we go along."


Close, but it really means that if state legislatures think something should be unconstitutional, they can, en masse, actually dupe the supremes into thinking it is.


In the absense of a clear national concensus on the issue of slavery, one way or the other, isn't it safer to forgo forcing emancipation on people until such a concensus is reached?


Or how about...

In the absence of a clear national concensus on the issue of segregation, one way or the other, isn't it safer to forgo desegregating people until such a concensus is reached?
6.25.2008 3:41pm
Thomas_Holsinger:
MCJ &Student,

Matthew Frank at NRO's Bench Memos says this of the ruling:

"The Kennedy Rule Holds [Matthew J. Franck]

Recently I remarked here on the "Kennedy Rule": that when the Court decides 5-4 that any government has done anything contrary to the Constitution, and Justice Kennedy was one of the five, the case was wrongly decided. And its corollary: if Justice Kennedy writes the opinion of the Court in such a case, it will be incoherently reasoned."
6.25.2008 3:48pm
Mark Field (mail):

Imagine this statement in 1861:
In the absense of a clear national concensus on the issue of slavery, one way or the other, isn't it safer to forgo forcing emancipation on people until such a concensus is reached?


This analogy is wrong for multiple reasons, not the least of which is that the government in 1861 was not proposing to "force emancipation on" those poor defenseless slaveholders. In fact, Lincoln repeatedly disclaimed any power or right to do so.
6.25.2008 3:55pm
NI:

this was an I don't like the death penalty opinion, nothing more and nothing less, to hell with the majority of folks who believe otherwise.


Then why didn't they use the Baes vs. Kentucky from earlier this term to toss the death penalty? Had they held lethal injection unconstitutional it would have had the effect of abolishing the DP in this country for years.

I agree today's case was wrongly decided. But the Supreme Court has had numerous opportunities over the last 50 years to declare the DP unconstitutional and hasn't done so. They've slowed it to a trickle, yes, but it's still there.
6.25.2008 3:58pm
alkali (mail):
Clayton: Thanks for passing that along. It is interesting to observe that the statute does not appear to even contemplate that there might be sexual assaults on male children (except perhaps insofar as such assaults might be prosecutable as sodomy).
6.25.2008 4:00pm
Russ (mail):
This analogy is wrong for multiple reasons, not the least of which is that the government in 1861 was not proposing to "force emancipation on" those poor defenseless slaveholders. In fact, Lincoln repeatedly disclaimed any power or right to do so.

Okay, Mark, how about in 1863 when the Emancipation Proclamationwas issued?

Laws are made by elected representatives and applied by the courts. Not the other way around, which the current SCOTUS has seemed to have forgotten. It's time to rein back SCOTUS power as the other branches have been in the past.

Maybe an impeachment or three would help.
6.25.2008 4:06pm
Tom Cross (www):
Russ,

Sigh... So, I guess I have to explain to you why the analogy you are making is completely unreasonable....

First, liberal interpretation of the 8th amendment relates to whether or not a national consensus exists about the cruelty of a particular punishment. The court here states that the national consensus is that this punishment is cruel and unusual. Alito responds that the recent adoption of statutes by 6 states might represent the start of a formation of a new, different consensus, but also concedes that it might not. Given that the consequence of executing someone is permanent, I'm offering that its better for the court to err in favor of prohibiting executions until such time that clearer evidence exists of a change in consensus.

None of this has anything whatsoever to do with slavery. I'm not aware of any argument about the legitimacy of slavery that was rooted in analysis of the 8th amendment. While the legality slavery was upheld by a court, that did not happen in 1861, and that ruling had nothing to do with national consensus. Certainly, by 1861, slavery was banned in far more than 12 percent of the country and the constitutional amendment that finally brought it to an end certainly represented a national consensus. Furthermore, prior to the development of that consensus, the consequences of erring in favor of slave holders involved DEPRIVING SLAVES OF THEIR LIBERTY which is quite a bit different than the consequences of erring for the defendant in this case! I can see absolutely no way in which there is anything similar about these two situations.

I guess it was a mistake to try to discuss a reasonable question in a thread like this. Is it now worth noting a corollary to Godwin's law that all discussions of controversial Supreme Court decisions will inevitably end with conservatives making bumbled reference to slavery or the Dredd Scott decision?
6.25.2008 4:14pm
FantasiaWHT:

But the Supreme Court has had numerous opportunities over the last 50 years to declare the DP unconstitutional and hasn't done so. They've slowed it to a trickle, yes, but it's still there.


Their goal is to make it so extremely limited that in a few years they can point and say - see, it hardly happens at all, therefore consensus must be against it, and therefore, it must be unconstitutional.
6.25.2008 4:29pm
Originalism Is Useful (mail):
Orin,

I don't mean to disparage Kennedy personally, but isn't it amusing that the title of the case is "Kennedy v. Louisiana"? Talk about an ironic case caption.
6.25.2008 4:41pm
Mark Field (mail):

Okay, Mark, how about in 1863 when the Emancipation Proclamationwas issued?


That was not justified on any "consensus" basis, but as a war measure.

Tom Cross has pointed out some other flaws. I'd note in particular that the whole idea of "forcing" emancipation on someone seems, well, dubious.


Laws are made by elected representatives and applied by the courts. Not the other way around, which the current SCOTUS has seemed to have forgotten. It's time to rein back SCOTUS power as the other branches have been in the past.


I'm sure you'll be making the same argument tomorrow when the Court strikes down the DC handgun ban.

Look, it's the Court's job to strike down laws (when warranted; and reasonable people can disagree about this). If the only job of a Court is to apply laws, then there's no point in even having a written Constitution.
6.25.2008 4:45pm
Dilan Esper (mail) (www):
Their goal is to make it so extremely limited that in a few years they can point and say - see, it hardly happens at all, therefore consensus must be against it, and therefore, it must be unconstitutional.

That's not likely. Indeed, I would suspect that if we hadn't have had the various Supreme Court decisions (especially Furman and Gregg, as well as Coker) limiting the death penalty and making it at least somewhat more difficult to use as a device to legitimize systematic killing of poor minorities who can't afford lawyers, the death penalty might very well have been declared unconstitutional by now.

By making it rarer and curbing abuses, the Anthony Kennedys of the world may be building a solid framework for the punishment to be retained for the harshest crimes.
6.25.2008 4:48pm
Dilan Esper (mail) (www):
So we agree that the "crimes against the state" distinction isn't worth the paper it is printed on?

It probably will be made to do some intellectual work on treason but not on drug kingpins. On the other hand, does anyone really think it will be the death of the republic if drug kingpins are limited to life in prison?

But yes, I agree with you it isn't the most persuasive or solid of distinctions.
6.25.2008 4:50pm
Dilan Esper (mail) (www):
Seems to me that "standards of decency" and "social consensus" are more likely to be represented in the deliberations of democratically elected legislators than in the insular musings of appointed jurists.

The experience with crime legislation calls this into doubt. Legislators are terrible on this issue because all they want to do is look tough. Think about mandatory minimums in drug cases and how difficult it was to get the crack-powder discrepancy addressed (and the first thing Congress proposed to do to fix that was to drastically INCREASE sentences for powder cocaine!).

The fact is, legislators never seem to get knocked out of office for overcrowding the prison or passing laws that throw minor offenders in the clink for 10 years. So I don't think there's any great "deference to the legislature" policy argument with respect to the Eighth Amendment— especially since the provision pretty clearly imposes a limitation on the legislatures to begin with.
6.25.2008 4:53pm
krs:

the Anthony Kennedys of the world may be building a solid framework for the punishment to be retained for the harshest crimes

The AMK opinions are careful to leave a tiny amount of room for the dp for the harshest of crimes, and they'll all be collected as a string cite in a brief someday, but I wouldn't call them a "solid framework."

When a future court wants to get rid of the death penalty altogether, a few lines of bad poetry dressed up as law won't stand in the way. All Kennedy rests on is the voices in AMK's head. Once AMK is gone or rendered irrelevant by changes in the court's composition, his opinions will likely meet the same fate.
6.25.2008 4:54pm
Russ (mail):
Look, it's the Court's job to strike down laws (when warranted; and reasonable people can disagree about this). If the only job of a Court is to apply laws, then there's no point in even having a written Constitution.

No, it's not the Court's job to strike down laws. It's the Court's job to apply the Constitution as it applies to the laws passed by our elected representatives. It is not the Court's job to figure out what societal standards are or how, on an unrelated topic, to apply international law.

In your opinion, has the Court ever overstepped their bounds as other branches have? What would be your remedy to such a thing. And no, it can't simply be "Amend the Constitution," b/c the Justices have shown they really don't care how it's written, so they'll just apply whatever they want to it. When the Executive overreaches, we don't just say, "Hold new elections" b/c it's not practicable every day. Instead, we rely on the legislative and judicial branches to exercise their inherent powers in check.

Not everything done by the Supreme Court is a check; a lot of the times it's judicial overreach. Or can judges never be guilty of this?
6.25.2008 4:55pm
Guest27:
It probably will be made to do some intellectual work on treason but not on drug kingpins. On the other hand, does anyone really think it will be the death of the republic if drug kingpins are limited to life in prison?

But yes, I agree with you it isn't the most persuasive or solid of distinctions.


The question of whether the republic will be fine has more to do with respect for the Constitution and the role of the judiciary, not policy decisions on whether drug dealers deserve to die.
6.25.2008 5:00pm
John Foster (mail):
An interesting contrast with today's Exxon decision: In Exxon, dealing with an area (admiralty) in which judge-made "federal common law" is OK, Stevens, Ginsburg, and Breyer say that they should defer to Congress in establishing the proper level of punitives. But in Kennedy, involving a legislative determination of the appropriate punishment for a local crime, Stevens, Ginsburg, and Breyer have no problem in overruling that determination.
6.25.2008 5:05pm
Russ (mail):
Tom,

You can be dismissive all you want, but that does not invalidate the point. You seem to say that the lack of action - ie, states passing laws which provide for child rape executions - is a consensus. However, by ruling as they did today, the Supreme Court ensured that states will not pass those laws at all, b/c they know they'll be struck down. With that being the case, how would you propose to develop a "national consensus" on such an issue?

Yes, I illustrated absurdity by being absurd. There was no national consensus on slavery at the time, nor was there on segregation, nor on implementing a draft, nor on leaving the Gold Standard, nor on a whole host of issues. National consensus is not required in a case such as this. Only if it's legal or if it passes muster by the Constitution. Please find for me in the Constitution where it says non-capital crimes are exempt from capital punishment, especially seeing as we used to use it all the time.
6.25.2008 5:07pm
bis (mail):
I find it telling that a number of posts are from people who, although professing personal distaste for the death penalty, nonetheless find Justice Kennedy's opinion unpersuasive.

Assuming I've framed the sentiment accurately, I agree with it totally. I am not nearly as disappointed in the result as I am in the legal analysis used to generate it. As a voter or legislator, I would probably vote against a law to execute child rapists (though it would be a difficult decision). But as a lawyer, I find that this decision is a bit insulting to our intelligence.
6.25.2008 5:14pm
Dilan Esper (mail) (www):
The question of whether the republic will be fine has more to do with respect for the Constitution and the role of the judiciary, not policy decisions on whether drug dealers deserve to die.

Guest, people on your side of the debate way oversell this point. We've had judicial review for 200 years, and pretty aggressive judicial review for at least 100, and yet people still respect the Constitution and still generally respect the judiciary. Even very controversial decisions like Brown v. Board of Education, Miranda, Roe, and Kelo didn't really call the institutional legitimacy of our judiciary or the Constitution into doubt. This one won't either.

As for "policy decisions", again, the Cruel and Unusual Punishment clause CALLS for policy decisions, i.e., when a punishment goes beyond the bounds of what a civilized society should permit. This sort of criticism is kind of like Bork calling the Ninth Amendment an "inkblot"-- there are certain parts of the Constitution that are vague and general and are going to be given content by judges. If you are opposed to that, then you really are simply disregarding a provision of the Constitution yourself on policy grounds.

The Cruel And Unusual Punishment clause is in the Constitution, judges are permitted to enforce it, and, as Scalia once said about another sometimes unpopular provision of the Constitution, "we are not at liberty to ignore it". And the reality is, since neither originalism (which would permit barbaric punishments in place at the time of the founding of the country) nor "evolving standards of decency" (silly for all the valid arguments made in this thread about Kennedy's state counting) really gives you a good answer to the question, it comes down to what 5 justices can stomach. I know that lots of people don't like that answer, but it's the answer that the Constitution and 200 years of precedent requires.
6.25.2008 5:24pm
NI:

Their goal is to make it so extremely limited that in a few years they can point and say - see, it hardly happens at all, therefore consensus must be against it, and therefore, it must be unconstitutional.


I don't think so. First of all, the court was far more liberal in 1976 -- the last time it was asked in a straight up and down question whether the DP is per se unconstitutional -- and it upheld the DP then. If the 1976 court wouldn't hold the DP facially unconstitutional, the far more conservative 2008 court won't either.

Second, as I said earlier, Baze vs. Kentucky would have been the case to get rid of the DP if they were going to. Banning lethal injection would have affected far more DP cases than the half dozen or so child rapists currently on death row.

Third, this is the Court that still routinely overturns last minute stays of execution by the lower courts.

I repeat, this was a stupid decision. But I don't think the evidence fairly points to a pernicious conspiracy to ban the DP outright.
6.25.2008 5:33pm
Tom Cross (www):
Russ,

There are all kinds of ways that a national consensus can be developed without actually executing people. There are myriad approaches, but one obvious example is to do what several states have done in the context of abortion; pass a dormant law which would ban all abortions in the event that Roe is overturned. In this context, if a large number of states passed such protest legislation, cases are very good that one state could begin enforcing it and would win on appeal.


National consensus is not required in a case such as this. Only if it's legal or if it passes muster by the Constitution.

Read the decision. In order to "pass muster by the Constitution" the law has comport to the 8th amendment. The 8th amendment is interpreted by the court to be defined by national standards of decency. So you need a national consensus about what is cruel and unusual. This has nothing to do with policy decisions or slavery or the gold standard or the price of tea in China. This is how the 8th amendment is interpreted.
6.25.2008 5:37pm
m12:
Circular logic.

The court bars states from enacting a policy, then claims years down the line that there is no consensus for this policy.


What I'm proud of is that the Court has the cojones to stand up for principle in an era in which Congress certainly doesn't and the Bush Administration regularly violates it.



What principle? If you want to come up with the idea that the DP is unconstitutional, despite being implied in the 5th amendment, just do it already.
6.25.2008 5:38pm
ejo:
don't forget-the anti-death penalty crowd thinks it irrelevant as no murderer thinks they will get caught or receive death prior to the murder, thus giving it no deterrant effect. yet, the child molestor, knowing of the possibility of death, will exercise the rational choice to kill the child to get rid of the evidence as he has nothing to lose. which is it, folks.
6.25.2008 5:55pm
Clayton E. Cramer (mail) (www):

Clayton: Thanks for passing that along. It is interesting to observe that the statute does not appear to even contemplate that there might be sexual assaults on male children (except perhaps insofar as such assaults might be prosecutable as sodomy).
I wonder if this was because it was relatively rare or because such a crime was so horrifying that the accused might not have made it trial. Remember that until relatively late (1809 for Maryland; 1786 for Pennsylvania), even consensual oral or anal sex was a capital crime (and I can find at least one example of someone being hung for buggery in Maryland). I rather doubt that a judge would have gone easy on someone who oral or anally raped an adult. And on a child?
6.25.2008 6:09pm
chiefbreakevryting:
Dilan Esper,


The experience with crime legislation calls this into doubt...

The fact is, legislators never seem to get knocked out of office for overcrowding the prison or passing laws that throw minor offenders in the clink for 10 years. So I don't think there's any great "deference to the legislature" policy argument with respect to the Eighth Amendment— especially since the provision pretty clearly imposes a limitation on the legislatures to begin with.


With all do respect, this is very unpersuasive. The original point was about "evolving standards of decency" and "social consensus" are more likely to be represented by the legislative process than by judicial review. If Kennedy gave much thought to "deference to the legislature" he would have avoided trying to divine "social consensus" on his own, and simply stated, as you do, that the Eighth Amendment pretty clearly imposes a limitation on legislatures. If Kennedy thinks that this limitation depends on "standards of morality" or "social consensus" he should at least have the courage to explain how his reading of such factors is better than that of elected representatives.

Social consensus can, and often does, favor unconstitutional outcomes. Did Kennedy consult "social consensus" before drafting his opinion in Boumediene? If Kennedy is going to use such haphazard notions for support of a constitutional principle, simple integrity should lead him to explain why the actions of a properly elected representatve body do not reflect social consensus.

Other than that, we probably agree.
6.25.2008 6:12pm
Clayton E. Cramer (mail) (www):

which is it, folks.
Bingo! Either child rapists are very present-oriented, in which case they can't be deterred, or they plan far enough ahead to murder someone that can identify them.

What this really boils down to is that there are a lot of elites like Charles Tierney-Rust, past president of the ACLU of Virginia, who pleaded guilty to buying little girl rape videos, and Bernie Ward, left-wing radio talk show host in San Francisco, and CBS producer Daniel Barron, arrested for trying to exchange football game tickets for some guy's 11 year old daughter. "I will be very gentle with her," he promised. These are examples that came to light--my guess is that the liberal elite has a lot more of these creeps that liberalism is trying to protect.
6.25.2008 6:19pm
Dilan Esper (mail) (www):
The original point was about "evolving standards of decency" and "social consensus" are more likely to be represented by the legislative process than by judicial review.

I am a little more honest than the Court, I think. "Evolving standards of decency", as measured by state legislatures' actions, results in silly and circular head-counts, just like many of the conservatives posting here say. That's a trenchant criticism.

I think the Court should simply handle Cruel and Unusual Punishment the same way the Fifth Amendment Rochin "shock the conscience" test is handled, i.e., the Constitution requires that judges determine whether particular punishments are so heinous in relation to the crime that they are cruel and unusual. In reality, that is what they are doing anyway, both in the majority AND the dissent, and they are just concealing their preferences with some fig-leaf legal reasoning. It is also the only thing one CAN do given the vagueness of the Eighth Amendment.
6.25.2008 6:25pm
Clayton E. Cramer (mail) (www):

The Cruel And Unusual Punishment clause is in the Constitution, judges are permitted to enforce it, and, as Scalia once said about another sometimes unpopular provision of the Constitution, "we are not at liberty to ignore it". And the reality is, since neither originalism (which would permit barbaric punishments in place at the time of the founding of the country) nor "evolving standards of decency" (silly for all the valid arguments made in this thread about Kennedy's state counting) really gives you a good answer to the question, it comes down to what 5 justices can stomach.
You are correct that an originalist interpretation would allow all the punishments in place in 1791 for federal law, and probably the punishments in place in 1868 for the states. But what that practically mean? Do you think Congress is going to pass laws allowing people to be burned at the stake? (A few states still had such provisions for executing slaves.)

And which "barbaric" punishments of 1868 do you expect the states to pass? To my knowledge, execution in 1868 everywhere was by hanging or firing squad. If this is the outer limit of "barbaric" punishment allowed to the states, what's your problem with this?
6.25.2008 6:26pm
Dilan Esper (mail) (www):
Clayton:

Those personal attacks on the ACLU are beneath you. You know there are plenty of conservative politicians and lawyers and thinkers and preachers who have done awful things as well.

The ACLU has a political disagreement with you on this issue. They are against the death penalty and therefore favor constitutional interpretations that narrow its application. You can criticize that view on its merits, and you have shown yourself quite capable of reasoned argument even when I disagree with it. You don't need to launch personal attacks.
6.25.2008 6:27pm
Clayton E. Cramer (mail) (www):

I think the Court should simply handle Cruel and Unusual Punishment the same way the Fifth Amendment Rochin "shock the conscience" test is handled, i.e., the Constitution requires that judges determine whether particular punishments are so heinous in relation to the crime that they are cruel and unusual.
I think would have a hard time finding many Americans (outside the ACLU and law school faculty) that would regard executing a child rapist to "shock the conscience." To be blunt, as much as I dislike the death penalty, I am hard pressed to see anything shocking about executing such a person, as long as there is no question about guilt.

What does "shock the conscience" is the notion that executing a child rapist is shocking.
6.25.2008 6:30pm
Dilan Esper (mail) (www):
You are correct that an originalist interpretation would allow all the punishments in place in 1791 for federal law, and probably the punishments in place in 1868 for the states. But what that practically mean? Do you think Congress is going to pass laws allowing people to be burned at the stake?

Clayton, I don't want to find out. On issues of crime and the war on terror, I think recent history has demonstrated that a lot of people would support some pretty barbaric things.

In any event, saying that Congress isn't likely to enact barbaric punishments, even if it were true as an emperical matter, doesn't really establish that we should construe "cruel and unusual punishment" to allow them.
6.25.2008 6:30pm
chiefbreakevryting:

I am a little more honest than the Court, I think.


I don't doubt it. And that is one reason why there is so much criticism of this decision.
6.25.2008 6:31pm
Dilan Esper (mail) (www):
I think would have a hard time finding many Americans (outside the ACLU and law school faculty) that would regard executing a child rapist to "shock the conscience."

Who knows? My point is that we allow judges to determine what shocks the conscience because there really isn't any better way of interpreting that aspect of the Fifth Amendment. Similarly, we should just allow judges to determine what is cruel and unusual and dispense with the easily manipulable and unprincipled BS on both sides about what constitutes a consensus of the states.
6.25.2008 6:32pm
Clayton E. Cramer (mail) (www):

Those personal attacks on the ACLU are beneath you. You know there are plenty of conservative politicians and lawyers and thinkers and preachers who have done awful things as well.
What personal attack on the ACLU? I pointed out that one of their officials likes little girl rape videos. I pointed to a CBS producer, and a left-wing radio talk show host who seem to have some serious problems. Neither of them was ACLU.

The fact that the ACLU so consistently ends up on the side of sexualizing children is, of course, just a wild coincidence.

I'm sure that you can find a prominent conservatives with child porn problems. But can you find some who are arguing that sex with children should be legal? (As the ACLU has done in the Limon case.) Or who find it necessary to defend groups like NAMBLA? (As the ACLU has done.)
6.25.2008 6:34pm
Clayton E. Cramer (mail) (www):

Clayton, I don't want to find out. On issues of crime and the war on terror, I think recent history has demonstrated that a lot of people would support some pretty barbaric things.
What barbaric punishments were introduced into Congress after 9/11? Remember that waterboarding, Christina Aguilera music, and similar "interrogation methods" were not punishments at all. There's a legitimate argument about what are the proper limits of these techniques, but they aren't punishments in the sense of something handed out by a court after conviction, so completely irrelevant to your argument.


In any event, saying that Congress isn't likely to enact barbaric punishments, even if it were true as an emperical matter, doesn't really establish that we should construe "cruel and unusual punishment" to allow them.
It does destroy your argument, however, for why we shouldn't follow original intent.

Yes, there are some cruel punishments that following original intent would allow at the federal level--but they are most unlikely to become an issue. And they are clearly not punishments that the Framers would have regarded as cruel and unusual.
6.25.2008 6:39pm
Clayton E. Cramer (mail) (www):

Who knows? My point is that we allow judges to determine what shocks the conscience because there really isn't any better way of interpreting that aspect of the Fifth Amendment.
Except by, you know, actually following what the text, as understood by those who ratified it (and the 14th Amendment, in its time). But that would take away the power of liberals to overturn the legislatures arbitrarily.

If you want a different provision about this, there is a method of doing this. It's called amendment--and that does require a consensus (2/3 of both houses of Congress, 3/4 of the states)--not just Justice Kennedy pulling stuff out of his butt.
6.25.2008 6:42pm
Dilan Esper (mail) (www):
I'm sure that you can find a prominent conservatives with child porn problems. But can you find some who are arguing that sex with children should be legal? (As the ACLU has done in the Limon case.) Or who find it necessary to defend groups like NAMBLA? (As the ACLU has done.)

Clayton, I really shouldn't get into this with you, but what exactly do you think this proves? That the ACLU and/or CBS News defends the positions they do because of a personal interest in raping children?

Come on! You must know liberals. You must talk to them. You must know that there are lots of people who have no interest in child porn or any of these other things but who believe in various civil liberties positions. (And by the way, the defense of NAMBLA-- by one ACLU chapter-- and local challenges to age of consent laws hardly constitutes the "mission" of the ACLU. The ACLU, nationwide, probably spends about 10,000 hours on free speech and civil rights cases for every 1 hour spent on that sort of stuff.)

This is totally unfair. Indeed it is just as unfair as a similar attack that is made on conservatives that you guys are so interested in opposing gay rights and vice and sin because you are all a bunch of repressed and closeted deviants.

You need to back off of the analysis of motives. Liberals have different opinions of controversial issues than you do not because we are trying to hook up with 13 year olds but because we analyze the costs and benefits and relative constitutional texts and fundamental issues of principle and policy differently than you do. In any group of liberals or conservatives, you might find a few criminals who are doing disgusting things. But you don't define the motives behind social movements by what those people think. It's unfair when it's done to conservatives and it is unfair when it is done to liberals.
6.25.2008 6:43pm
Dilan Esper (mail) (www):
Except by, you know, actually following what the text, as understood by those who ratified it (and the 14th Amendment, in its time).

Clayton, my best originalist understanding of the text of the Cruel and Unusual Punishment clause is that it was understood to prohibit barbaric punishments. There was no understanding, to my knowledge, that it was intended ONLY to prohibit certain punishments that were believed to be barbaric in 1791. Imposing that test is not "originalism", it is conservatives reading their policy preference into the law.

Indeed, to say that the Eighth Amendment prohibits only those punishments that were seen as barbaric in 1791 is the same thing as saying that the Second Amendmment prohibits only bans on guns that were commonly possessed by individuals in 1791. In other words, by that logic, a gun ban on everything but shotguns, rifles, and the sort of rudimentary handguns that were available in 1791 would be perfectly constitutional.

You can't worship at the altar of this sort of originalism, just because it gets you the results you want. The original understanding of the Eighth Amendment went no further than to enshrine a principle that barbaric and heinous punishments were prohibited. It is up to judges to figure out what those punishments are, and the framers gave us little guidance. Judges that do so are not being judicial activists-- they are following the text of the Constitution, while your position amounts to ignoring it and rendering it a dead letter. And you would, rightfully, never accede to an analogous interpretation of the Second Amendment, a right that you care about more than this one.
6.25.2008 6:49pm
m12:
I have a question for the 'evolving standards' crowd.

If the 8th amendment can be changed to accomodate decency, why can't the 4th amendment be changed to accomodate antiterrorism surveillance?
6.25.2008 6:50pm
Dilan Esper (mail) (www):
What barbaric punishments were introduced into Congress after 9/11? Remember that waterboarding, Christina Aguilera music, and similar "interrogation methods" were not punishments at all. There's a legitimate argument about what are the proper limits of these techniques, but they aren't punishments in the sense of something handed out by a court after conviction, so completely irrelevant to your argument.

Clayton, I know they aren't punishments, but they aren't irrelevant either. A public that could support torture of suspects could support all sorts of punishments upon those who were convicted. As I said, I don't want to find out, and I don't want to adopt an interpretation of the Constitution that greenlights this sort of thing.
6.25.2008 6:51pm
Steve2:

The Cruel And Unusual Punishment clause is in the Constitution, judges are permitted to enforce it, and, as Scalia once said about another sometimes unpopular provision of the Constitution, "we are not at liberty to ignore it". And the reality is, since neither originalism (which would permit barbaric punishments in place at the time of the founding of the country) nor "evolving standards of decency" (silly for all the valid arguments made in this thread about Kennedy's state counting) really gives you a good answer to the question, it comes down to what 5 justices can stomach. I know that lots of people don't like that answer, but it's the answer that the Constitution and 200 years of precedent requires.


On that note, is there a PAC I can donate to that is pushing an amendment to the effect of,

"The 8th Amendment having been improperly construed to prohibit proportional execution by torture, no provision of this Constitution or any treaty or law passed pursuant to it shall prohibit the United States or any individual State from imposing any method of execution for the crimes of murder, rape, mutiliation, performance of non-consensual medical experimentation, or fraud and embezzlement in excess of $1,000,000"?

This decision is appalling, but it's based on the wretched precedent of Coker, which in turn was based on the hideous monstrosity of Furman. Cruel punishment doesn't exclude execution by torture for certain crimes, and it should never have been held to prohibit mandatory execution laws.

Forgiveness is the worst of all vices, for it makes an accomplice to all other crimes.
6.25.2008 7:03pm
Russ (mail):
This is how the 8th amendment is interpreted.

Says who? An unelected judge? Why shouldn't the states themselves determine this.

You try to work in abortion into this, but your logic is circular. Since the laws can't go into effect until Roe is overturned, can't the courts say that there's no law in effect about Roe, and, therefore, no national consensus?

I'm sorry, but the Supreme Court is far too immune to the will of the people and there is no check on its decisions. Some say this is good for the law, but aren't the laws supposed to be decided by the peoples' elected representatives?

No, I wouldn't make a judge subject to election, but I would limit judge terms. I would make it so that judges could only be appointed to ten year terms on the Court, and could be reappointed at the end of their term by either a direct reappointment by the President with concurrance of one third of the Senate, or subject without the approval of the President to a majority vote of the Senate. Impeaching a Justice or two who go outside of the bounds of common sense might also rein in their overreach.

In a republic, they must be somehow more accountable to the people, even if it is indirectly.
6.25.2008 7:06pm
m12:

You can't worship at the altar of this sort of originalism, just because it gets you the results you want. The original understanding of the Eighth Amendment went no further than to enshrine a principle that barbaric and heinous punishments were prohibited. It is up to judges to figure out what those punishments are, and the framers gave us little guidance. Judges that do so are not being judicial activists-- they are following the text of the Constitution, while your position amounts to ignoring it and rendering it a dead letter.




And if Kennedy came out like Marshall and Brennan, and just stated his opposition to the DP, I suppose more people would have respect for him.

If you believe executing child molestors is somehow cruel, and also somehow unusual (note that both criteria must be satisfied), just say so.
6.25.2008 7:07pm
Clayton E. Cramer (mail) (www):

Come on! You must know liberals. You must talk to them.
Yes. Why do think I hold liberalism in such contempt?

The ACLU's understanding of the Bill of Rights is profoundly ahistorical, as their defense of virtual child pornography shows. They are a left-wing pressure group these days, with nothing to recommend them.
6.25.2008 7:09pm
Ryan Waxx (mail):

The ACLU's understanding of the Bill of Rights is profoundly ahistorical, as their defense of virtual child pornography shows.


And their defense of virtual murder. These action movies are getting out of hand!
6.25.2008 7:14pm
Clayton E. Cramer (mail) (www):

Clayton, my best originalist understanding of the text of the Cruel and Unusual Punishment clause is that it was understood to prohibit barbaric punishments. There was no understanding, to my knowledge, that it was intended ONLY to prohibit certain punishments that were believed to be barbaric in 1791. Imposing that test is not "originalism", it is conservatives reading their policy preference into the law.

Indeed, to say that the Eighth Amendment prohibits only those punishments that were seen as barbaric in 1791 is the same thing as saying that the Second Amendmment prohibits only bans on guns that were commonly possessed by individuals in 1791. In other words, by that logic, a gun ban on everything but shotguns, rifles, and the sort of rudimentary handguns that were available in 1791 would be perfectly constitutional.
The flaw in your reasoning is this: "arms" is a general term, and is not tied to anything specific in 1791. You could make the argument that "arms" would have to include at least stuff that has roughly the same function. An atomic bomb is clearly many orders of magnitude different in function from anything possessed in 1791. Even a modern handgun is only a couple orders of magnitude more dangerous than a handgun of 1791.

"Cruel and unusual" is a value judgment, one that is obviously specific to the values of those who ratified that text. Figuring out what they intended might be a struggle, and in ambiguous situations, a judge has considerable latitude as to what to do. But rape was a capital crime in 1791 in most states. To argue that there was a right to not be punished for rape is ahistorical.


You can't worship at the altar of this sort of originalism, just because it gets you the results you want. The original understanding of the Eighth Amendment went no further than to enshrine a principle that barbaric and heinous punishments were prohibited. It is up to judges to figure out what those punishments are, and the framers gave us little guidance.
It doesn't give me the results that I want. I'm not a supporter of the death penalty. I am a supporter of judges being honest, and not arbitrarily deciding what they want the text to mean.

The Framers actually did give us some guidance. Take a look at what punishments were off the table in 1791 (or 1868, for incorporation). I believe that live burial was no longer in use by 1791 (although it had been used in New York City earlier in the century). Burning at the stake was still in use into the early 19th century. (And yes, barbaric. I would strongly oppose it, even more so than the death penalty.) Whipping was still in common use--and the Delaware Supreme Court upheld whipping as a punishment as late as 1960. (That's not a typo: 1960.)
6.25.2008 7:18pm
Clayton E. Cramer (mail) (www):

If the 8th amendment can be changed to accomodate decency, why can't the 4th amendment be changed to accomodate antiterrorism surveillance?
Yup. This is why I can't take liberalism seriously. They want the judges to interpret the Second Amendment differently because today isn't 1791; they want judges to interpret "cruel and unusual punishment" differently because today isn't 1791; but suggest that the Fourth Amendment and Fifth Amendment protections don't make sense in a world where you can be on a plane half-way around the world in eight hours, or that dealing with suicidal terrorists might require a different set of strategies because it is no longer 1791, and they insist that you are doing something improper.
6.25.2008 7:22pm
Clayton E. Cramer (mail) (www):



The ACLU's understanding of the Bill of Rights is profoundly ahistorical, as their defense of virtual child pornography shows.


And their defense of virtual murder. These action movies are getting out of hand!
I'm not sure what your argument is here. Fiction involving murder was present in 1791, and it wasn't unlawful. Scandalous or obscene fiction was unlawful. That's the basis for figuring out whether a particular category is protected by the First Amendment or not.
6.25.2008 7:25pm
Clayton E. Cramer (mail) (www):

Clayton, I know they aren't punishments, but they aren't irrelevant either. A public that could support torture of suspects could support all sorts of punishments upon those who were convicted. As I said, I don't want to find out, and I don't want to adopt an interpretation of the Constitution that greenlights this sort of thing.
And a public that could support laws against abortion could also support mandatory church attendance laws, too. So what?
6.25.2008 7:28pm
Tom Cross (www):
Russ,

1. Yes, the courts decide how to interpret laws. Thats how things work in America.

2. I'm not trying to "work abortion into this." I'm providing a practical example. If there is a real national consensus that the death penalty is appropriate for child rapists it will be held not to violate the 8th amendment. The Supreme Court is not playing some sort of semantic game. These people are quite serious. Any honest method of demonstrating that such a consensus exists will work. Be creative!

3. There are two checks on Supreme Court decisions. One is a Constitutional amendment. Another is impeachment. Good luck with the later, but if you have a national consensus the former ought to be easy.

4. Serious people have suggested term limits for Supreme Court justices.

5. I take it you agree with Kelo v. New London? I mean, elected legislatures ought to be able to do what they want without interference from some unaccountable judge, right?
6.25.2008 7:33pm
Dilan Esper (mail) (www):
The flaw in your reasoning is this: "arms" is a general term, and is not tied to anything specific in 1791. You could make the argument that "arms" would have to include at least stuff that has roughly the same function. An atomic bomb is clearly many orders of magnitude different in function from anything possessed in 1791. Even a modern handgun is only a couple orders of magnitude more dangerous than a handgun of 1791. "Cruel and unusual" is a value judgment, one that is obviously specific to the values of those who ratified that text.

I don't see this as "obviously specific" at all. Indeed, if the intent was to bar only a specific set of punishments, the Constitution would do that rather than banning everything deemed "cruel and unusual". (See, e.g., the treason clause, which requires the testimony of two witnesses for a treason prosecution, or the seventh amendment, which prescribes a specific amount in controversy for the jury trial right.) Or how about "no punishment seen as cruel and unusual at the time of the ratification of this Constituion by the several states shall be permitted". (See the importation of slaves clause, which prohibits laws banning the slave trade for 20 years after the Constitution is enacted, or the Presidential Qualifications clause, which permits anyone who is a citizen at the time of the enactment of the Constitution to run for President.)

It doesn't say that because there is no evidence that the cruel and unusual punishment clause was understood simply as a ban on certain punishments in use in 1791. Rather, it is simply a ban on barbaric punishments. You guys are trying to add words to the provision that aren't in there, because you can't stand the idea that the framers actually understood that the courts would adjudicate what constitutes a cruel and unusual punishment.

If there is some actual evidence you have that the original understanding of the Eighth Amendment was that it would ONLY be interpreted to ban punishments seen as cruel and unusual in 1791, please provide it. I am not aware of any such evidence, and I know that Scalia has never cited any. Saying something is "obvious" that isn't actually obvious does not get you around this problem.
6.25.2008 7:39pm
Nunzio:

Why doesn't the Court just commission a public opinion poll as to whether the punishment under review is appropriate?

Does anyone think the state legislatures or the Supreme Court accurately reflect public opinion?

When will the way the Court determines where we are on the decency-evolution curve itself evolve?
6.25.2008 7:43pm
Ryan Waxx (mail):
I'm not sure what your argument is here. Fiction involving murder was present in 1791, and it wasn't unlawful. Scandalous or obscene fiction was unlawful.


The point is that murder is both a more serious crime and the magnitude of threat to society from murder is much greater. Yet watching fictionalized depictions of this is not only totally legal, it does not even carry social stigma.

Fiction is fiction. The content of the movie Joe Blow is watching tonight doesn't concern me, and it shouldn't concern you either. Obviously if they killed real people for the movie that'd be a problem, but isn't the ACLU's problem with that law precisely that no one came to harm to make the porn?
6.25.2008 7:45pm
Clayton E. Cramer (mail) (www):

I'm sorry, but the Supreme Court is far too immune to the will of the people and there is no check on its decisions. Some say this is good for the law, but aren't the laws supposed to be decided by the peoples' elected representatives?

No, I wouldn't make a judge subject to election, but I would limit judge terms. I would make it so that judges could only be appointed to ten year terms on the Court, and could be reappointed at the end of their term by either a direct reappointment by the President with concurrance of one third of the Senate, or subject without the approval of the President to a majority vote of the Senate. Impeaching a Justice or two who go outside of the bounds of common sense might also rein in their overreach.
As tempting as it is to try and limit the terms of judges, I have some misgivings for the following reason: lifetime appointments act as a buffering agent on change. Judges, in some respects, reflect the dominant values of a generation that is no longer in charge. The Supreme Court justices of the 1930s delayed (although did not completely prevent) FDR's policies; they represented the values of a generation earlier. America has moved considerably to the right in the last few years, but Justices like Stevens and Kennedy represent liberal dominance of the 1970s. We may be entering into a phase when leftist craziness much more dangerous liberalism will be dominant; I'll be glad to have leftovers like Thomas, Scalia, Alito, and Roberts up there for a few more decades, especially if President Obamessiah gets elected.

Slowing the rate of change when conservatives end up in control is frustrating for conservatives; slowing the rate of change when liberals or even leftists end up in charge will be a very good thing.
6.25.2008 7:47pm
Ryan Waxx (mail):
There are two checks on Supreme Court decisions. One is a Constitutional amendment. Another is impeachment. Good luck with the later, but if you have a national consensus the former ought to be easy.


What good would a amendment do, if the problem is that the Judges are twisting the text to mean what they think it should mean? Wouldn't they just do the same thing to the amendment you just passed?

The problem is lawlessness on the part of someone who's charged with determining what the law is.
6.25.2008 7:48pm
Clayton E. Cramer (mail) (www):

I don't see this as "obviously specific" at all. Indeed, if the intent was to bar only a specific set of punishments, the Constitution would do that rather than banning everything deemed "cruel and unusual". (See, e.g., the treason clause, which requires the testimony of two witnesses for a treason prosecution, or the seventh amendment, which prescribes a specific amount in controversy for the jury trial right.)
Sad to say, there was considerably less thought put into the Bill of Rights and its text than into the Constitution. Madison was doing this because he had promised Antifederalist voters in Virginia that he would. Spend some time reading through the surviving debates in Congress, and you will realize that much of this is murky for a reason!

I recall reading a paper some years ago that made the argument well that the Framers understood "cruel and unusual" based on a misunderstanding of the English Bill of Rights similar provision--a misunderstanding that punishments that brought about unnecessary suffering were prohibited, because of how drawing and quartering as a potential punishment was used to persuade victims of the Bloody Assizes of 1685 to plead guilty to treason, with the promise of life in prison. (They were executed after pleading guilty.)
6.25.2008 7:52pm
Clayton E. Cramer (mail) (www):

The point is that murder is both a more serious crime and the magnitude of threat to society from murder is much greater. Yet watching fictionalized depictions of this is not only totally legal, it does not even carry social stigma.
I'm sorry, but Congress and the American people don't agree with you. That's the reason that movies that depict torture and murder are legal and far too popular. (How many movies are there in the Saw sequence?)

As it happens, one of the problems with virtual child porn (as with the real thing) is that predators use such to persuade children, "It's okay, see, they're doing this, too!"

Fiction is fiction. The content of the movie Joe Blow is watching tonight doesn't concern me, and it shouldn't concern you either. Obviously if they killed real people for the movie that'd be a problem, but isn't the ACLU's problem with that law precisely that no one came to harm to make the porn?
Actually, no, their objection was a bit more complex. And sorry, but the vast majority of Americans agree with me that child porn is a far more serious problem than murder for the following reasons:

1. The use of it for manipulating children discussed above.

2. The difficulty in determining whether something is truly virtual child porn or not. As graphics get better and better, it will get harder and harder to tell the difference.

3. Concern that having it legal and available tells those who find it exciting that it is okay for them to be sexually excited by children.
6.25.2008 7:57pm
MarkField (mail):

What principle? If you want to come up with the idea that the DP is unconstitutional, despite being implied in the 5th amendment, just do it already.


Upholding habeas corpus is a matter of very important principle indeed, since it's the legal foundation of all rights.

The principle involved in Kennedy: not imposing cruel and unusual punishments.
6.25.2008 8:00pm
Tom Cross (www):

Yup. This is why I can't take liberalism seriously. They want the judges to interpret the Second Amendment differently because today isn't 1791; they want judges to interpret "cruel and unusual punishment" differently because today isn't 1791; but suggest that the Fourth Amendment and Fifth Amendment protections don't make sense in a world where you can be on a plane half-way around the world in eight hours, or that dealing with suicidal terrorists might require a different set of strategies because it is no longer 1791, and they insist that you are doing something improper.

That about sums up why I don't think I'll never call myself a conservative. For all their talk about individualism, conservatives are, by and large, opposed to individual freedom. The 4th and 5th amendments "don't make sense." Lets do away with them. Terrorism is the justification we offer but we'll prosecute anyone for anything we happen to find while we're searching them and forcing them to testify against themselves. Once they are convicted, we have some sadistic interest in punishing them in ways we acknowledge are both cruel and unusual by modern standards. As long as a razor thin majority in some podunk legislature signs off on it, its AOK! Woohoo! Break out the popcorn and we'll put it on cable!

The only individual right Conservatives do seem to care about is the second amendment. While I support that right, getting to shoot a handgun at the firing range will be little solace in the sort of despotic, theocratic, violent regime right wing conservatives seem to want to live in.
6.25.2008 8:25pm
m12:

Upholding habeas corpus is a matter of very important principle indeed, since it's the legal foundation of all rights.

The principle involved in Kennedy: not imposing cruel and unusual punishments.


You have a point about Boumedine even if I don't agree with it. But in this case, he doesn't argue over principle; he falsifies a 'national consensus' which doesn't exist and tries to hide behind it.
6.25.2008 8:28pm
Dr. T (mail) (www):
Real simple solution here. If they realize that they'd be killed for their crime, they would finish the act of rape with a murder. The ruling makes sense based on that likely outcome.

This is an argument from a false premise. The rapists don't think they are going to be caught for the rape(s)! In some of these cases, they repeatedly rape the same victims. (Remember the Catholic priest cases?) Changing the maximum penalty to the death sentence (instead of life imprisonment) is unlikely to affect the behavior of rapists.
6.25.2008 8:29pm
m12:


That about sums up why I don't think I'll never call myself a conservative. For all their talk about individualism, conservatives are, by and large, opposed to individual freedom. The 4th and 5th amendments "don't make sense." Lets do away with them. Terrorism is the justification we offer but we'll prosecute anyone for anything we happen to find while we're searching them and forcing them to testify against themselves. Once they are convicted, we have some sadistic interest in punishing them in ways we acknowledge are both cruel and unusual by modern standards. As long as a razor thin majority in some podunk legislature signs off on it, its AOK! Woohoo! Break out the popcorn and we'll put it on cable!


If you say so. The difference is, with the Patriot Act, the MCA, and the death penalty in various states, the legislature has signed off on all of them.
6.25.2008 8:35pm
Dan Simon (mail) (www):
Of course, there's a deeper question lurking in the opinions: Is the Eighth Amendment a general tool for invalidating criminal laws that the Justices think are too punitive and therefore unwise? Or is it only a specific tool for invalidating punishments that are way out of the mainstream?

Orin has hit the nail on the head, and I wish that more people would cut through the emotional aspects of this case--the death penalty, child rape--and focus instead on the incredible breadth of the Supreme Court's power grab. For the first time (to the best of my knowledge), the Court has declared the Eighth Amendment to apply not just to punishments in themselves, but also to punishments as applied to specific crimes. That is, a punishment was declared "cruel and unusual" not by its very nature, but by virtue of being excessive for the crime for which it was imposed.

There's no limit to where this reasoning can lead. As Orin points out, any criminal law could be declared unconstitutional by the same logic, if the Supreme Court decides that under "evolving standards of decency", the punishment in question (or any punishment at all, for that matter) is too "cruel and unusual" for that particular crime. The Supreme Court has in effect announced that it's entitled to substitute its own judgment freely for that of the nation's legislatures, in determining the appropriate extent and severity of any and all criminal punishments.

Does nobody else find this just a bit disturbing?
6.25.2008 8:41pm
Steve2:

If they realize that they'd be killed for their crime, they would finish the act of rape with a murder. The ruling makes sense based on that likely outcome.


I nearly lost a friend when I said I thought raping someone and not murdering them, so that they would suffer through that trauma for years or decades to come, was worse then raping them and then murdering them, which would put an end to their suffering. She didn't appreciate the implication that I thought she'd be better off dead. Still... I think the severity of murder is overstated in people's minds and in the law, while the severity of causing lasting hurt to people is drastically understated. Which is why I think a properly applied proportionality analysis for cruel and unusual punishment would have the result of upholding swift methods of execution (gunshot to the back of the head, for example) for murder and lengthy painful executions (stab to the gut as in All Quiet on the Western Front, for instance) for more severe crimes, not this mockery of justice that is limiting execution to only the most painless methods possible for only a handful of murders.
6.25.2008 8:55pm
Dilan Esper (mail) (www):
For the first time (to the best of my knowledge), the Court has declared the Eighth Amendment to apply not just to punishments in themselves, but also to punishments as applied to specific crimes.

This was settled in Solem v. Helm, wasn't it?

The problem with the alternative position (espoused by Scalia) is that it would mean that a life sentence and $50 billion fine for a parking violation would be constitutional.

Again, this is a standard thing I say about Scalia-style jurisprudence, but when your legal principles lead to repugnant results, it doesn't mean you are a courageous legal thinker who sticks to his or her principles. It means you have the wrong principles.
6.25.2008 9:03pm
Russ (mail):
One is a Constitutional amendment.

As someone stated earlier, the Justices simply interpret the amendment the way they wanted. And I was going to bring up Kelo as an excellent example of Justices simply interpreting amendments the way they want. No, I didn't agree with Kelo b/c it was clearly in violation of the 5th amendment(as an ironic aside - you refuse to ever be a "conservative," but it was the liberal wing that voted in favor of Kelo). When you can find a spot in the Constitution that says execution for non-capital crimes is cruel and unusual, you'll have a point, but not with the strawman you set up. Keep in mind that we used to execute rapists, looters, and even horse thieves, so it wasn't always so cruel and unusual.

Some try to say that it's cruel and unusual now since no one has been executed in a non-capital case in over 40 years. However, that becomes a self-fulfilling prophecy as the longer we go without doing it, the more people will point to it being out of favor. I ask again - what, in your mind, would create that vaunted "national consensus?"

You yourself mentioned how difficult impeachment was. Elections and impeachment is not the only check on either the executive or the legislative, so why should impeachment or amendment be the only check on the judiciary?

The only individual right Conservatives do seem to care about is the second amendment.

Yeah, that's why Conservatives want to bring back the fairness doctrine. That's why Conservatives voiced support of Kelo. That's why Conservatives oppose federalism as incorporated in the 10th amendment. BTW, that was sarcasm, as those are all "liberal" positions.

You have taken the stance I've seen most liberals take - that Conservatives aren't wrong and need to be persuaded, but are morally flawed and evil. You have painted with a very broad brush without providing any evidence and seem to think all Conservatives are marching in lockstep with some mysterious religious theocracy.
6.25.2008 9:04pm
Clayton E. Cramer (mail) (www):

That about sums up why I don't think I'll never call myself a conservative. For all their talk about individualism, conservatives are, by and large, opposed to individual freedom. The 4th and 5th amendments "don't make sense."
I am not actually making that argument. I'm arguing that liberals want to make that argument for provisions that they don't like, but not others.

Take a look at some of the recent dissents, such as Edwards v. Indiana. The liberals went ahead and decided to ignore the existing guarantee because a mentally ill person wanted to defend himself at trial. The dissent basically agreed that this was a bad idea, but the Constitution doesn't allow the state to override the defendant's desire to defend himself.
6.25.2008 9:08pm
Clayton E. Cramer (mail) (www):

The problem with the alternative position (espoused by Scalia) is that it would mean that a life sentence and $50 billion fine for a parking violation would be constitutional.

Again, this is a standard thing I say about Scalia-style jurisprudence, but when your legal principles lead to repugnant results, it doesn't mean you are a courageous legal thinker who sticks to his or her principles. It means you have the wrong principles.
I must have missed the statute providing for a life sentence and a $50 billion fine for overtime parking.

I agree that a legislature might do something that outrageous, and I would be very upset about it. But once you decide to override the legislature because they passed a stupid law, this all becomes a struggle over who gets to define what is stupid.

Liberals are very big on severe punishments for victimless crimes. For example, liberals made sale of an assault weapon under California's Roberti-Roos Act a minimum of four years in prison--when the minimum sentence for forcible rape was only three years. To me, this was crazy. But as much as I found this offensive, I knew better than to think that judges have the authority to be second-guessing the legislature about what level of punishment is appropriate. (The law itself is unconstitutional, but the liberal overboard punishment isn't.)
6.25.2008 9:13pm
Clayton E. Cramer (mail) (www):

For the first time (to the best of my knowledge), the Court has declared the Eighth Amendment to apply not just to punishments in themselves, but also to punishments as applied to specific crimes. That is, a punishment was declared "cruel and unusual" not by its very nature, but by virtue of being excessive for the crime for which it was imposed.
Uh, no. See Furman v. Georgia (1972), where the Supreme Court decided that capital punishment was excessive for rape. Being liberals, of course, they didn't see that rape was a serious enough crime to justify execution.
6.25.2008 9:15pm
Clayton E. Cramer (mail) (www):

As long as a razor thin majority in some podunk legislature signs off on it, its AOK! Woohoo! Break out the popcorn and we'll put it on cable!
I would be okay with requiring some supermajority for passage of criminal laws -- but that would have to be generally true, not just for some criminal laws, but not others. Liberals are very partial to passing laws by razor-thin majorities that punish victimless crimes.
6.25.2008 9:17pm
DangerMouse:
Elections and impeachment is not the only check on either the executive or the legislative, so why should impeachment or amendment be the only check on the judiciary?

If Courts are going to act like politicians, then they should be treated like politicians, and subject to the same criticism of politicians and scrutiny as politicians. And they should be subject to the same limits as politicians.

But in reality, the Court system needs to be abolished. I'd rather have a duel with someone using pistols, than walk into a courtroom, to settle my disputes. At least pistols make it fair.

The Supreme Court is wholly and irreversibly corrupt.
6.25.2008 9:29pm
Julian Summers (mail):
How about this Justice Kennedy? If the victim at a later date commits suicide because of the psychological trauma visited upon him/her, can we then fry the bastard?
6.25.2008 10:27pm
MarkField (mail):
Russ, your arguments are nearly incoherent. On the one hand you don't want judges to overturn democratically decided rules. On the other hand, you applaud them when they do so in cases you like (Kelo, Heller [I'm anticipating]). All that really amounts to is saying you agree on the merits of some cases and disagree on the others.

That's fine; reasonable people can and do disagree on the merits. They could even discuss the merits, except everyone gets distracted by phony arguments about majoritarianism. This thread didn't need to be the trainwreck it became (not all your fault, of course). Instead of rants and irrelevancies, we could have actually debated the merits. One of the most frustrating aspects of participating on this board as a liberal is the refusal of so many self-described conservative posters to do that.
6.25.2008 10:32pm
NobOddy (mail):
MarkField wrote:
...reasonable people can and do disagree on the merits. They could even discuss the merits, except everyone gets distracted by phony arguments about majoritarianism.

Excuse me? In what way is majoritarianism a phony argument, given that the actual language used by Justice Anthony "Meaning Of Life" Kennedy points exactly to that very issue?
6.25.2008 10:50pm
Russ (mail):
Mark,

You have oversimplified my position. Yes, I believe in the Constitution. However, I don't believe in reading into the Constitution what isn't there. I oppose Kelo b/c the Takings Clause of the 5th Amendment clearly is in contravention of what the ruling was.

Where the language is unclear or ambiguous, I would defer to the elected bodies to provide that clarification. At least in that regard, there is accountability. If I disagree with how the legislature clarifies something, then I have the ability to change that in the next election. I can support a candidate that will clarify in a way I believe in more. I do not have that same right when it comes to the Judiciary.

For example, I would not support a law that says something along the lines of - "Due to security concerns, you cannot protest at the Republican or Democrat National Convention" because such a law, despite security concerns, would be a clear violation of the 1st Amendment as written. It's very clear. However, "cruel and unusual punishment" is a vague phrase that lends itself more to interpretation. I do not want an unelected judge to decide what "societal norms" are; I want that to be decided by elected bodies so that mistakes can be rectified through the democratic process.

I think the frustration of both liberals and conservatives on this board is that we're talking past each other. Neither side's position is as simplistic as the other side woiuld like to portray. As a conservative, I know that liberals aren't looking to give out licenses to child rapists so they can have their way with kids. But as a liberal, I would hope you would know that my position on clear interpretation versus vagueness is not the simplistic mess you've made out that conservatives just want to accept some things and not others that they just don't like.
6.25.2008 11:04pm
DangerMouse:
As a conservative, I know that liberals aren't looking to give out licenses to child rapists so they can have their way with kids.

Don't be so sure about that.
6.25.2008 11:44pm
Dilan Esper (mail) (www):
I agree that a legislature might do something that outrageous, and I would be very upset about it. But once you decide to override the legislature because they passed a stupid law, this all becomes a struggle over who gets to define what is stupid.

The problem with this position is that the Cruel and Unusual Punishment clause is in the Constitution. So the Constitution (and Marbury) already grants the power to the courts to determine whether such punishments are cruel and unusual.

Again, you guys portray this like it is creating a constitutional right out of whole cloth, but it isnt. The right is in the Constitution, and it is vague. And you can't react to a vague right by attempting to neuter it and make it meaningless. That's just as much judicial activism as what you guys accuse liberals of doing.
6.25.2008 11:44pm
Sensible Lawyer (mail):
The problem with this position is that the Cruel and Unusual Punishment clause is in the Constitution. So the Constitution (and Marbury) already grants the power to the courts to determine whether such punishments are cruel and unusual.

Yes. But Kennedy's perverse application of his own national consensus test is not in the Constitution. Nothing grants the judiciary the power to make up law out of thin air and then erroneously apply the law they just willed into existence. [Flips open his copy of the Constitution.] Oh. No. Wait. Here it is. Right here. It's the Imaginary B-llsh-t Clause of the Constitution.
6.26.2008 12:00am
NobOddy (mail):
Can we recall the crime, is that allowed on this blog? From the tone presented by some posters, the crime committed is no big deal. Here is part of what it involved:

L. H. was transported to the Children's Hospital. An expert in pediatric forensic medicine testified that L. H.'s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.

Liberals, is this something that should be punished in a meaningful and serious way, or is it just a tort that should be handled in civil court with a fine and some counseling sessions? From the tone so far, at least a couple of posters don't seem to regard this rape as much of an issue. Perhaps I'm just too angry to read clearly, but there's a certain, oh, so sophisticated attitude around here...
6.26.2008 12:19am
MarkField (mail):
Russ, your last post makes sense. That's not to say I agree with you on the merits, because I don't. But at least it provides a starting point for discussion.


In what way is majoritarianism a phony argument, given that the actual language used by Justice Anthony "Meaning Of Life" Kennedy points exactly to that very issue?


There are two different issues here. One is the "counter-majoritarian problem" that arises whenever a court strikes down a democratically enacted statute. Some of the posts here implied that this should never happen. I criticized those posts on the ground that they didn't mean that because those same posters were sure to applaud a ruling in Heller striking down a democratically enacted statute.

The majoritarian argument Kennedy made differs from this. His is a factual claim about national attitudes. I haven't said anything about that argument.
6.26.2008 12:25am
Clayton E. Cramer (mail) (www):

The problem with this position is that the Cruel and Unusual Punishment clause is in the Constitution. So the Constitution (and Marbury) already grants the power to the courts to determine whether such punishments are cruel and unusual.

Again, you guys portray this like it is creating a constitutional right out of whole cloth, but it isnt. The right is in the Constitution, and it is vague. And you can't react to a vague right by attempting to neuter it and make it meaningless. That's just as much judicial activism as what you guys accuse liberals of doing.
No, we are not claiming that there is no right. We are arguing that there needs to be some standard for evaluating the meaning of that right a bit more precise than, "I feel like this should be it." And that's what Kennedy's continuously moving target seems to be.

The First Amendment's prohibition on establishment of religion is quite clear--but much of the jurisprudence on this is far removed from the text, statements of intent, and actions of the First Congress. Indeed, many of the actions of the first several Congresses are completely contrary to the ACLU's neutrality view concerning religion.

Similarly, the First Amendment's protection of freedom of speech and of the press was clearly intended to prevent both prior restraint, and protect a great many categories of speech and print. It was not unlimited. Obscene speech was not protected, and the definition of "obscenity" that any of the Framers would have recognized is violated on just about every cable TV network today--not only for explicit sex, but probably for graphic violence as well. Yet the ACLU actually persuaded the Court to strike down a ban on virtual child pornography, because it was not worded quite as strictly as it could have been.

This desire to have every constitutional clause unmoored from any historical meaning really turns the Constitution into a Humpty Dumpty document. Imagine if the Court decided to contort the freedom of religious worship clause into a guarantee that every public school is obligated to open the day with public prayer, led by the principal?

Absurd? No more so than deciding that capital punishment for raping a child violates the "cruel and unusual punishment" clause even though rape was a capital crime in 1791. When every phrase means whatever Justice Kennedy twists it to mean--often contrary to original intent--then the Constitution means whatever five justices want it to mean. And what makes five justices opinion about what the law should be more meaningful than the opinion of a majority of a state legislature, or a majority of the voters of a state?
6.26.2008 12:27am
m12:

The problem with this position is that the Cruel and Unusual Punishment clause is in the Constitution. So the Constitution (and Marbury) already grants the power to the courts to determine whether such punishments are cruel and unusual.




I guess I have to come back to my original point here, and echo the previous poster. The problem isn't this as much as its the 'national consensus' test.
6.26.2008 12:34am
Clayton E. Cramer (mail) (www):

One is the "counter-majoritarian problem" that arises whenever a court strikes down a democratically enacted statute. Some of the posts here implied that this should never happen.
Care to point to an example? The argument that I have made, repeatedly, is that the clauses of the Constitution have meanings--meanings that do not change because Justice Kennedy doesn't like the consequences.

In some cases, there are provisions of the Constitution that may be obsolete today. The bail provision has been pretty seriously twisted to avoid the harsh reality that some people are flight risks so severe that they either need $10 million bail (some drug kingpins) or shouldn't be bailable. I would argue that this provision needs to be amended. Ditto for the $20 dispute provision. And there's a strong argument for amending the search and seizure provisions to deal with electronic communications and some of the very real hazards of bioterrorism. But the solution to these problems is to amend the Constitution--not just pretend that the Constitution is alive, and has grown.

By the way, I would take the liberal countermajoritarian argument seriously if liberals actually believed it. The argument in Loving came down to, "Well, there's only 16 states that still have these silly laws, so they are obviously out of date." How countermajoritarian is that?

When it comes to economic regulation, liberalism has been profoundly subservient to majority rule--even when the results are patently absurd, such as Wickard v. Filburn, and sexist, such as West Coast Hotel Co.

When it comes to restrictive gun control, liberalism has been vigorously on the side of majority rule--even when there's a provision that is clearly contrary to restrictive gun control.
6.26.2008 12:36am
Clayton E. Cramer (mail) (www):

From the tone so far, at least a couple of posters don't seem to regard this rape as much of an issue.
Hey, these abstractions are so much more fun to argue about. And thanks for reminding the liberals of what happened to this little girl. Pretty clearly, executing the monster who did this to her would be completely excessive. I recall reading that even a couple of years later, she was in therapy for her injuries.
6.26.2008 12:40am
dick thompson (mail):
Dilan Esper,

Maybe in your eyes the Kelo decision did not call into doubt the Supremes. In mine it did. In fact a week after the decision Justice Stewart made the statement in a speech in Las Vegas that he regretted his decision in Kelo (reported in the Sacramento Bee at the time). I don't, based on my reading in a lot of the newspaper websites, think I am unique in my loss of faith in the Supremes because of that decision. For them to say that the city has the right to take property from a working citizen and hand it over to a corporation to do with as it wished is unconscionable. For them to continue to do this even after the corporation had already built what they intended to build and had no need for the property makes it even worse.

When you couple that with the decision they made today and a couple of the others where the liberals on the court made up the law to fit their politics makes me wonder what the justices claimed their basic philosophy of the law should be when they were confirmed. Add to that the use of foreign law as the basis of their decision on the constitutionality of laws under our constitution makes it even worse. What will these liberal justices do next to take away the rights we enjoy as citizens of this country by making up laws at will.
6.26.2008 1:37am
Originalism Is Useful (mail):
Absurd? No more so than deciding that capital punishment for raping a child violates the "cruel and unusual punishment" clause even though rape was a capital crime in 1791. When every phrase means whatever Justice Kennedy twists it to mean--often contrary to original intent--then the Constitution means whatever five justices want it to mean. And what makes five justices opinion about what the law should be more meaningful than the opinion of a majority of a state legislature, or a majority of the voters of a state?

Can't we expect more than absurdities in reasoning from a Supreme Court Justice? Isn't that a neutral and objective standard -- no absurdities? Lawyers should be able to spot a logical absurdity.
6.26.2008 2:10am
Dilan Esper (mail) (www):
This desire to have every constitutional clause unmoored from any historical meaning really turns the Constitution into a Humpty Dumpty document.

This is one big straw man argument. Clayton, the historical meaning of this clause IS that judges are going to determine whether punishments are barbaric or heinous. There isn't any more specific historical meaning because there is no evidence that the framers meant ONLY to bar a certain set of punishments that were considered unacceptable in 1791.

All these appeals to original meaning in this context are a complete dodge. What you have is a big fat broad vague constitutional provision that invites interpretation. It's not much different from "reasonable" searches and seizures (also not subject to historical analysis) or the "shock the conscience test.

Bottom line, you guys know you hate the decision, but you really don't have a principled argument beyond your correct criticism of Kennedy for counting the states. (By the way, Alito counts the states too, and his count is just as vapid as Kennedy's.) Really, there's nothing more to the cruel and unusual punishment clause than that conservatives think the death penalty isn't cruel and unusual for a child rape and liberals think it is. And you guys can't stand the idea of an open-ended vague portion of the Constitution that might lead to liberal results, so your solution is to read it out instead.
6.26.2008 2:56am
LM (mail):
DangerMouse:

Spit in front of him? Spit AT him. Kennedy needs to be shunned and humiliated for his despicable actions. I advocate protests at his house and his relatives' houses.

Classy.

Fine, I won't advocate personal injury to the Justices HERE. But if you think that what I'm saying is out of the ordinary, you need to get out more. People in America know that the Court is a sham, and that people like Kennedy are tyrants hiding behind a curtain, and they're not going to put up with it much longer. The delusion is that by treating as respectible what normally should be contemptible, you're acting civilized. All you're doing is putting lipstick on a pig.

I'm sorry to rain on your anarchy parade, but Americans have a very high opinion of the Supreme Court. They think a lot better of it than they do of either political branch.

But to decent people, the Supreme Court as an institution is wholly corrupt and is irredemably an enemy of society.

Right, like I just said.... By the way, the "decent people" who do disapprove of the Supreme Court mostly consider it too conservative, not too liberal.

cjwynes:

This is the most smug, elitist garbage I've read all term. And it shows how lefties completely miss the point of our nation's existence.

And keep telling yourself Kennedy is a lefty, when 75% of Republicans like the Supreme Court just fine.
6.26.2008 3:49am
Originalism Is Useful (mail):
Bottom line, you guys know you hate the decision, but you really don't have a principled argument beyond your correct criticism of Kennedy

I don't hate the decision. I just think huge chunks of Kennedy's opinion are transparently poorly reasoned. I think that is shameful, really. Why don't you?
6.26.2008 4:14am
Justice /Long D. Silver/ Thomas:

Clayton E. Cramer

What personal attack on the ACLU? [personal attack on ACLU]

Good thing pointing out that guys obsessed with guns and Corvettes generally have issues about the size of their manhood isn't a personal attack on you, shorty.
6.26.2008 9:51am
Neo (mail):
This begs the question ..

What do Al Gore and raped children have in common ?

Answer
7.2.2008 8:03am