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Journal pudge's Journal: Law? What Law? We Doan Need No Steenkeeng Law! 31

Journal by pudge

The Supremes today ruled, 5-4, that it is unconstitutional to execute anyone under the age of 18.

What was this based on? Allow Justice O'Connor to speak for me, because if I said it myself, no one would believe me: "The rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender."

That is, it was not based on law or fact. Oh sure, it was based on the 8th Amendment that we must refrain from cruel and unusual punishment, but that law does not say we cannot execute 17-year-olds. And it was based on the fact that many people and several states outlaw such executions, but while the court professes to uphold "the evolving standards of decency that mark the progress of a maturing society," no such consensus in this country exists on this point, and the court in so acting must do so descriptively, not prescriptively.

In fact, only 18 of the 38 states that have the death penalty have laws setting the minimum age at 18. The other 20 are all set at 17 or under, or have no minimum age expressed. It's unavoidably true that the SCOTUS is imposing its own will on the people, without basis in law or fact, but instead, as O'Connor said, merely on their own moral judgment, which is simply not good enough to overturn the laws created by people who too have their own moral judgments.

I hope that the states defy the courts and do it anyway, if they so choose. I am not in favor of the death penalty, but I am in favor of the states choosing it if that is their wish, and I am against the courts executing authority where they have none.

The court makes clear its intention to dispense with the idea of rule of laws, and instead enforce the rule of men, when it appealed to -- I wish I were making this up -- "international opinion." Again, I quote a dissenter, Justice Scalia:

The Court begins by noting that "Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18."

The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), which the Senate ratified only subject to a reservation that reads:

"The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age."

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.

But Scalia slightly misses the mark there. The Court does not hold the ability to join and ratify treaties, it simply decreed by fiat that it has the ability to make any laws it wishes, for whatever reason, without limitation of any kind. Because that's the only way this can been as a just and reasonable decision.

Again, Scalia:

Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's "own judgment" that murderers younger than 18 can never be as morally culpable as older counterparts. The Court claims that this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating Stanford." That supposed rule -- which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices' views -- was repudiated in Stanford for the very good reason that it has no foundation in law or logic.

And this is what our Supreme Court is today: people who care less about law than doing what they think is right. In other words, wannabe legislators.

What's especially interesting about this decision is that it comes on the heels of another case of the court usurping the legislative duty: in Kansas, the Supreme Court ruled that the legislature must increase its funding for schools, based on their state Constitution which says that the government must provide for adequate education, and a legislature-commissioned study which said far more money had to be spent to provide adequate education.

But that legislature said, well, we disagree with the study, as is their right. The Court said, well, we agree with it, so tough luck for you. But the Court doesn't get to make those decisions. That's for the legislature to decide, to weigh the evidence and make the right choice.

It's amazing to me that our High Court would say that Congress can do anything it likes in regard to copyright, and can define for itself what limited means, but that it cannot define for itself what cruel and unusual mean, especially when in the former Congress was actually making a de facto violation of the Constitutional principle, and in the latter, it is a matter of opinion, which varies wildly amongst the American people. Worse, that they consider international opinion more than national opinion, but apparently only because they happen to agree with the international opinion more.

I might as well finish up with Scalia:

In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends.

This discussion was created by pudge (3605) for no Foes, but now has been archived. No new comments can be posted.

Law? What Law? We Doan Need No Steenkeeng Law! More

Law? What Law? We Doan Need No Steenkeeng Law!

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  • 1) From a policy point of view: who cares? I'm as much a Right-Wing Death Beast as the next guy, but is the country going to be discernibly any less well-off without executing juveniles? I was reading the gnashing of teeth at National Review and wondering who on earth the constituency is for this position?

    2) From a principled point of view: the prohibition against "cruel and unusual punishment" is suffciently vague that it requires subjective interpretation of precisely the sort that you're ridiculing O'Co

    • From a policy point of view: who cares?

      Did you get the impression I care about the death penalty? I didn't express that. And I don't care.

      From a principled point of view: the prohibition against "cruel and unusual punishment" is suffciently vague that it requires subjective interpretation of precisely the sort that you're ridiculing O'Connor over.

      I am not ridiculing O'Connor. I am ridiculing Kennedy.

      It's not obvious to me that such interpretation needs to be based on what a majority of death pena
      • Then how do you interpret "cruel and unusual punishment?" If the legislature decides to legalize America's currently illegal practice of torture (for example), would that be cruel and unusual in your mind, and by what standard?
        • The question is exactly, "what standard?" The Court did not use a reasonable one. A minority of states who have the death penalty, and international opinion.

          Now, I don't even favor using such a standard, but even if you are to use it, it fails, because there is so much national disagreement on it. Eighteen states allow minor executions (though fewer actually practice it, of course), and there is nothing nearly appropaching a consensus on the matter.

          So yes, what standard? Are you actually in favor of t
          • But if not this standard, what standard would be reasonable for "cruel and unusual punishment"? By your argument, no standard not set by the legislature would apply, rendering that provision in the constitution null and void.
            • By your argument, no standard not set by the legislature would apply

              No. We have to look at the purpose of the 8th Amendment. It was not to allow the courts to outlaw laws it deemed cruel and unusual, it was to protect the people from what society deemed outrageous. In this case, it is not society deeming the punishment outrageous -- not American society, anyway, which is all that matters -- but the Court itself.

              In a sense, yes, the standard set by the legislature is normally not cruel and unusual, bec
              • In a case where the legislature decided to go against such popularly acceptable standards, then the Court might have justification for stepping in.

                The standards of their state, or of the nation? Suppose a majority of people in 48 states find a punshiment outrageous that one state uses and approves of. The last state doesn't use that punishment, but doesn't find it outrageous. Are 48 states enough of American society to deem the punishment outrageous?
                • The standards of their state, or of the nation?

                  We are talking about the Supreme Court. It has no authority to meddle in state matters. I am necessarily talking about national standards.

                  As to your question, it's not a reasonable scenario. Each situation is unique. What if the two dissenting states are California and New York, which accounts for about 20 percent of the U.S. population?

                  In this particular case, I wouldn't find any number acceptable, because the claim is far too specious on its own: the
  • who said they have made their decree, now let them enforce it. It would be an interesting test of federalism. Essentially the federal bench would have to have its powers explicitly expanded by the congress under a new judiciary act to become superior to any state court.
    • Yes, Jackson, of Justice Marshall. And yes, I very much wish the legislative and executive branches would defy the courts more often.

      I don't think this falls under states' rights though, because it is a Constitutional issue. The Court is merely abusing its power by creating that which does not currently exist in our law or national standards.
      • The Court is merely abusing its power by creating that which does not currently exist in our law or national standards.

        Who, then, decides what the phrase "cruel and unusual punishment" entails? Congress? The White House? Someone's gotta interpret the meaning of that, and I can't see a more valid authority than the Supreme Court for that.
        • Who, then, decides what the phrase "cruel and unusual punishment" entails? Congress?

          Short of clear national consensus, yes, of course.

          I can't see a more valid authority than the Supreme Court for that.

          We think of the Supreme Court as creators of law. They are not. They describe the law. They don't determine what IS cruel and unusual, they determine whether a particular punishment is cruel and unusual, using the relevant law, and in this case, national standards, of which none exist.
          • What I find interesting is your viewpoint of what the SC should be is in the minority. It agrees with how the Federalists felt the SC should be, but the perception of the country has shifted and by obeying SC rulings, effectively redefined the Court's role.
            • What I find interesting is your viewpoint of what the SC should be is in the minority. It agrees with how the Federalists felt the SC should be, but the perception of the country has shifted and by obeying SC rulings, effectively redefined the Court's role.

              Yes, and incorrectly. And while you may say my view is in the minority, it is held by no less than several members of the Supreme Court of the United States, most particularly Scalia, so it can't reasonably be said that my view is all that far out of t
              • How much is this country allowed to shape itself based on modern thinking, versus the opinions of the founding fathers?
                • How much is this country allowed to shape itself based on modern thinking, versus the opinions of the founding fathers?

                  It is not about the Founding Fathers per se, it is about the law as it is written in the Constitution, according to its intended meaning. And this country may never go against that, ever. You don't like it? Amend the Constitution. Feel free. But to pretend that we can just make it mean something else if we feel like it is to assert that we are a nation of men, not of laws, which is a
                  • Then some of the blame lies with the Founding Fathers. Madison wrote that the Supreme Court wasn't supposed to read between the lines of the Constitution, but he didn't do so in a binding document, like the Constitution. As long as laws are written with alternate interpretations being possible, that don't violate the words as written, we'll have problems.

                • The founding fathers probably forgot more about political science and good governance than we'll ever know. That said, I can't believe you don't think the Constitution can change.

                  The problem comes in allowing the constitution to change based on the opinions of 5 Justices versus the three quarters majority required otherwise. Its even worse when you realize that the Justices corronated themselves with this power of judicial review [slashdot.org].

                  Add to that, if you review the court decisions you'll find that when they ha
                  • You do know why Justice Marshall did that don't you? He was between a rock and a hard place. If he hadn't made that creative ruling, one side would have ignored it, thus establishing that the Supreme Court could be ignored when it suited the President or Legislature.

                    I blame those in power in 1803 for not immediately passing an Amendment declaring:

                    The Supreme Court shall only rule based on what law is written. It is not to read between the lines to find other meanings. That is up to Legislatures to wri

                    • You do know why Justice Marshall did that don't you? He was between a rock and a hard place.

                      Can Justice Marshall create a rock so big he can't slip past it?

                      Seriously, even with how you see it you should understand slavary was allowed under the same pretence.

                      I blame those in power in 1803 for not immediately passing an Amendment declaring:

                      -- and every year since if you ask me.

                      If we pass an Amendment now, it will create chaos.

                      I see what you are shooting for, and I don't think it has the gas to re
                    • why on earth did the south succeed?

                      The South seceeded for economic and political power.

                      I read from here [wikipedia.org] on down, and glanced at what's above. Granted it's only a wikipedia article, but that means people with different viewpoints have contributed.

                      Looks to me like the South saw new states on the plains becoming free states, shifting power from them. They saw the north as too economically powerful. The war may well have happened even if the SC had ruled Dred Scott was subject only to the laws in Missour

                    • Okay, you said all that already...

                      Now tell me how you see it as different (or draw a different conclusion) than what I said?

                      Specifically, they feared the legislative power, not the SC.
                    • Reading what you said over again, I agree with you that it was the ruling of public discourse that the South feared, and not the SC. At the same time they saw the public discourse pulling legislative power away. So the Supreme Court didn't factor into the cause of the Civil War very much.

                    • Right.

                      But do not discount the fact that the issue was attempted to be solved in the Supreme Court. Which is the reason behind judicial review, supposedly it solves problems without the public discourse headache.

                      But it doesn't, not in a democracy. If I were to educate people I would hope to convey the uselessness of the eminent tribunal. Then I'd hope to convey that it harms the public discourse, sometimes in ways that are only trumped by civil war.

                      If the US plummets into another civil war, I guarantee it

  • no such consensus in this country exists on this point

    But a consensus does exist in the US. Thirty states legally do not allow execution for crimes commited by minors. Fourty-four states have abstained from executing juvenille offendors since 1989. Fourty-seven states have refrained from the practice since 1995.

    To quote Kennedy:

    "the objective indicia of consensus in this case -- the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains

    • But a consensus does exist in the US.

      YKUTWIDNTIMWYTIM [imdb.com].

      A consensus is not majority belief, nor unanimous agreement, it is general acceptance.

      And Kennedy was wrong. Quote him all you like.

      the rejection of the juvenile death penalty in the majority of States

      Not an indicator of consensus, on its own.

      the infrequency of its use even where it remains on the books

      Irrelevant. What is important are the reasons why it is not used, which is much harder to determine.

      and the consistency in the trend towa
      • Of course, even ignoring this fact, no, this is not the job of the Court to make such a determination. Otherwise, what can it NOT decide on? What are its limits? Why have a legislature?

        I'd say the Court would fill in the gaps in the law that haven't been written yet. If the legislature disagrees, it can change the law or amend the Constitution, flesh out the law, and the Court would have to interpret differently.
        • I'd say the Court would fill in the gaps in the law that haven't been written yet.

          In this case, the law was written.

          The basic problem is our courts have turned the relatively minor principle of judicial review onto its head and said that they can decide anything they wish. It's not what a Republic is.
          • But as interpreted, the 14th applies the 8th Amendment to everyone. The 8th supersedes state laws. Thus "cruel and unusual" needed to be interpreted. Thus the law hadn't been written, at least not at the Federal level.

      • A consensus is not majority belief, nor unanimous agreement, it is general acceptance.

        And it is generally accepted in the US that juvenile offenders should not face capital punishment.

        the rejection of the juvenile death penalty in the majority of States

        Not an indicator of consensus, on its own.

        If a majority of states reject it, in and of itself, that is not a consensus. If fourty-seven states reject it everytime and the other three reject it the majority of the time, I think we can safely call

        • And it is generally accepted in the US that juvenile offenders should not face capital punishment.

          Not remotely, no. You're making that up, or just watching Kennedy make it up. You actually think I will believe that not positively reaffirming an existing law is evidence that it might not agree with that law, that it is "non-commital"? Please, don't waste my time.

          That was not the conclusion of the legislature commissioned study.

          So what? That's the point. Who cares what the study says? The study au

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