A familiar chorus of five US Supreme Court justices found today that the state of Louisiana was woefully out of step with the rest of us by permitting juries to impose the death penalty upon those who would rape young children. I actually happen to agree with the majority, not merely because I believe that the ultimate sanction ought to be reserved for the ultimate crime – and child rape, while unspeakably horrendous, falls just short of that standard – but also because I believe that a more suitable punishment for child molesters is to consign them to the warm and lifetime embrace of their comrades in the prison system. Gen-pop style.
Unlike the SCOTUS majority however, I’m unable to impose my personal beliefs upon the people of Louisiana and their democratically elected legislature. No matter how more fully evolved I believe myself to be. All of their votes count more than mine. Because I am not a Supreme Court justice.
Which is a damned good thing for the rest of you, because once I started peering into the Constitution and discovering unenumerated rights that conformed to my personal preferences, you’d all be in for a hell of a time. Not to mention the trick of vaulting over those pesky 10th Amendment limits to federal power.
Lucky thing for you that I’m not a Supreme Court justice. Too bad for the people of Louisiana – and any children whose innocence might otherwise have been spared – that Anthony Kennedy is.
Politicians come and go. Supreme Court precedence lasts (nearly) forever.
Elections matter.
“Elections matter.”
Indeed they do. Well argued, Lex. I could not agree more.
So let me get this straight. Evolving standards says we can’t impose the death penalty for this crime. Yet we have seen one state enact this penalty, and a few more are (or were) forwarding legislation to impose it. Wouldn’t the evolution be towards the death penalty for the crime of aggravated child rape?
One suspects that perhaps the majority of the Court is just pulling this outta their A**.
XBTC- Personal preferences driven by ideology allow a good percentage of the SCOTUS to defecate the activist decisions produced. Give me a solid Constructionist any day. IF BHO can load the Court, the Constitution as it was written and intended by the authors, will be unrecognizable to most of us. That is one of the reasons elections matter.
Lex, while I agree with you that elections matter, the issue of punishment for those that would harm a child in that manner is where you and I (and the Supreme Court) differ.
Go read what the guy actually did to his daughter…
If that guy doesn’t deserve killing, not many do.
http://michellemalkin.com/2008/06/25/what-the-child-rapist-saved-today-by-supreme-court-liberals-did-to-his-8-year-old-stepdaughter/
Elections matter, true. But sadly, in this one both parties’ candidates will nominate losers to the bench.
I’ve voted in every election since Reagan’s first, and felt I had a choice (and a clear one, too) in every one. But this one? All that’s clear is that we lose either way.
Feh.
And as Justice Scalia pointed out, we execute for other crimes short of murder, such as treason. The proportionality argument is hogwash.
Scary, isn’t it, that only two (IIRC) of the judges on that bench were appointed by a Dem0cratic president.
Part of the SCOTUS argument was that the victim in this case didn’t die.
Well that’s true- at least not physically. But I would argue that her life ended the day that monster did what he did – she’ll never have a normal relationship with anyone, she’ll never have a chance at the normal life she is entitled.
Then again, I too favor a different punishment for these kinds of monsters. Castration, followed by mandatory life sentence. If what they say is true, that there is “prison justice” for child molesters, then let a jury of his peers decide what should happen to him.
Hey SCOTUS -how’s that for an “evolving standard of decency”.
far be it from me to interject a Heinlein reference, but in all seriousness, this particular rat bastage should have been dancing Danny Deever about 8 years ago… for specifically the reasons Heinlein illuminated.
Kris- Sadly, I have been a close witness to the suffering of one so badly abused sexually and psychologically as a child and adolescent that at times I, too, think that the monsterous perpetrators deserve not to be drawing breath much less prison rations. Society has the right to protect itself from those so violent that they cannot be safely contained, even in a maximum security prison. The issue I have with the death penalty in this country is it is not applied uniformly across all states and secondly, it is used as retribution and not to protect others, prison guards and even other inmates guilty of crimes less than murder. It is too bad that we do not make these scumbags serve life at true hard labor until they croak (i.e. the Roman salt mines)
Here is the question I have which gets lost in the emotionality of decisions like this one:
What is so magical about 1789? Slavery was legal. Women could not vote or own property separately from their fathers or husbands. The census was designed to only count 4/5 of persons not caucasion. Few (as in almost no) direct elections of federal office holders (the House of Reps being the only exception). If you did not own land you could not vote.
How do those facts make the mindset of the drafters or framers of the Constitution more relevant than what confronts the Republic today? Did the Framers consciously consider whether there was an expectation of privacy in communications that travel by wireless technology such that the 4th Amendment’s warrant requirement applies? After all, anyone can use equipment to receive the signal. Doesn’t that diminish the expectation the communication is private?
Did the Framers consider whether a thermo-imaging device which could detect heat changes within a residence from outside the residence implicated the 4th Amendment? After all, what’s visible to the outside world is free for all to observe, right. What’s the difference when the “visible” is enhanced by artificial means? Isn’t it just like a flashlight or the search light on a police helicopter?
I don’t claim to have any answers. I’m just not sure that strict construction is the panacea some believe it to be.
Respects
OAM
OAM, the Framers – in their wisdom – created a method for changing the Constitution that did not depend upon the whimsies of unaccountables. It’s a hard bar to get across of course, two-thirds majority of the legislature and ratification by the states. But it’s supposed to be.
Lex
I’m not talking about changing the constitution. I’m talking about understanding what is written. As you well know, words are capable of more than one meaning. Context matters. Context by definition means political and cultural context.
No one doubts Shakespeare’s great gift and wit. However, many of his jokes are lost when the context and conventions of the day are not understood.
The same is true of language whenever it is written down. It must be understood. To understand means to read and interpret. Isn’t that what Judges are there to do?
If we blindly and literally read the document as some assert, what’s the point in having a Supreme Court or any other court to help understand and interpret what is open to different constructions? Why did the Framers create a Supreme Court if the Constitution is to be frozen in time and space, never to be considered or judged? As Chief Justice John Marshall wrote in 1802 (and he was at the Constitutional Convention in 1789) “it is, after all, a Constitution we interpret.”
What is means is not the same as what it says.
Respects
I can understand and sympathize (though respectfully disagreeing ) with those opposed to the death penalty, either outright, or for this crime. The courts decision and opinion, however, is hogwash. I mentioned above my thoughts on the evolving standards of society. Kennedy also makes the distinction between crimes against individuals v. crimes against the state as a reason why treason qualifies for the death penalty. But, that fails the common sense test. In our society, the state is the people. And all crimes against an individual are crimes against the state. That’s why the case was prosecuted by Louisiana, and not an individual.
This isn’t representative government in action. It’s 5 people imposing their views on the nation. I can’t ask my representative to enact or remove this legislation. I can’t do anything about it. Is that how we want things?
But by extension, in a way, it is representative government in action. A president was elected by the majority of eligible voters and then appointed the Supreme Court judges. That’s the way it works. Legislators enact, justices make sure it’s constitutional according to their interpretations of the law. It’s not always to our individual liking, but that’s how the Framers designed our government. I don’t see it changing.
Angry? Ask/lobby your Rep. or Senator to enact different legislation that would then pass muster.
Still angry? Run for office to effect the change you want and convince others to vote for you and the change you believe in.
GEO6: I am so sorry for what you have witnessed. Believe me, a part of me would like nothing better than to see this kind of scum fry – like bacon. Certainly killing child predators does keep society safe, as god knows our judicial system will work overtime to try to release them on some trumped up technicality.
On the other hand, solitary confinement and prison justice seem like more punishment than the assurance that their death will be without cruelty.
Eye for an eye. If this kind of scum want to steal the lives of children – literally or figuratively – then the manner of their death should be the same. Heinous. Terrifying. With the end unknown until it’s over.
Thanks Kris. I find it difficult not to be moved to great anger about it. It has been difficult not to wish the worst on the perp(s). I have often wondered what I would have done had I been in a position to intervene at the time. A jail sentence would have been worth it to stop the abuse but not for mere retribution, as deserved as it was and is. I leave that up to the Almighty.
I am not opposed to the death penalty. But like war, should only be done as a last resort if other means can accomplish what must be done to protect the nation or the individual. With respect, I don’t agree with the eye for an eye in today’s society. Case in point, of a woman convicted of murder while a prostitute and drug addict in TX who, according to all who knew her had completely reformed, became a devout Christian and walked the walk. Even the Warden appealed on her behalf. She accepted her own execution with dignity and in peace but IMHO, this is why we should only use the death penalty on those so dangerous, unrepentant, and incorregeble that they are too dangerous for society to keep around. This woman was no threat to anyone after her own reformation.
OAM- The framers had specific intent with the verbiage. I would respectfully disagree with your assertion that we cannot understand what was meant. My problem is the lack of intellectual honesty and rhetorical gymnastics that the ideologically driven Justices use to come to their conclusions.
@OAM
The example you give involving new technology are one thing, and obviously the type of interpretation that the courts exist for. But that’s not the situation in this case. Sadly, there is nothing remotely new about the crime or the punishment for it. So what right could they possibly have to throw away all the precendents and impose their own will? They have none, but that didn’t stop them.
That’s what rankles me about this decision. They decided what they wanted to do, constructed some thin legal argument to allow it, and trampled over the legislature and states’ rights in the process. This is the worst type of legislation from the bench.
Furthermore, the decision itself is ridiculous. Since the death penality is allowed in other situations then how does it become “cruel and unusual” in this situation? The punishment is the same no matter what the reason for it’s application. The Constitution doesn’t say “cruel, unusual or disproportionate.”
Geo 6
How do we know that? There are no tape recordings of the proceedings? The minutes are vague, at best.
And even if they did, so what? What is magical about the intent of 18th century aristocrats?
I don’t disagree with your point about the intellectual dishonesty that goes on. But it goes on on both sides of the Court. One could plausibly argue, although beyond the scope of this post by our host, that the decision in the DC gun control case was supported by rhetorical gymnastics. After all, didn’t the justices effectively right off the introduction to the amendment by only referring to the “operative” clause? Aren’t we supposed to give meaning and substance to all words in the Constitution? By finding the introduction to the Second Amendment not to have any susbstance has the majority effectively amended the Constitution by not giving those words effect and purpose?
All I’m trying to argue (I hope consistently) is that strict construction of the constitution is not a cure for judicial activism. Justices Scalia and Thomas can be as activist as anyone, when they get the votes.
Respects
Brian R
Cruel and Unusual carries within it the concept of disproportionate. It is disproportionate to kill those who don’t kill. That’s been the law with adults since Coker v. Georgia in the 70s.
And I don’t think the other examples miss the point. Scalia wrote in Kyllo v. United States that the Government invaded the privacy and violated the 4th Amendment rights of the defendant when they used thermo imaging to determine he was manufacturing marijuana. But the Government didn’t invade Kyllo’s home. They observed what they could see from outside, albeit with technology. Why shouldn’t that be seen as judicial legislation?
In the Gitmo cases earlier this year, the Court was derided for creating a new class of person. It seemed to me the Court recognized there were two types of people who may be kept in custody: prisoners of war and criminals. There certainly was no “illegal combatant” category during the Revolution or at the time of the ratifying of the Constitution. The 3d category created by NCA is not supported in the constitution or precedent. A strict constructionist should find that if you are not a prisoner of war then you must be a criminal and if you are a criminal and there is no constitutional basis for doing away with habeas corpus you must have the right to review of your incarceration. But what I heard here and elsehwere is that the Court was “actively” interfering with the President’s ability to fight the GWOT. Is it intellectually honest for strict constructionists like Scalia and CJ Roberts to believe a previously unknown type of person in the custody of the government is supported by the Constitution and to whom the Constitution does not apply?
Next time someone screams “judicial activism” ask yourself why they are screaming?
Respects
OAM- Recall that all of the authors were around for the Revolution, which, in the case of the Second Amendment, would not have been possible, had not the majority of Americans had firearms in their homes. As for intellectual dishonesty, I am referring to the ability for people to deceive themselves in order to justify a position. From my observation there are two different approaches used to determine intent. First, one individual will say how do I find a means to justify my position. The other will say, what was intended or what is the truth? I am not accusing members of SCOTUS of deliberate dishonesty. I think it reflects how biases impactes how facts are considered. Or ignored. I think what side of the fence a person’s world view is drives how they approach issues.
OAM wrote:
What is so magical about 1789? Slavery was legal. Women could not vote or own property separately from their fathers or husbands. The census was designed to only count 4/5 of persons not caucasion. Few (as in almost no) direct elections of federal office holders (the House of Reps being the only exception). If you did not own land you could not vote.
OAM, your question contains much of its own answer. Slavery was legal in the states, but left to the states. There is no mention of slavery in the Constitution, except in odd allusions such as the 3/5 (not 4/5) clause used in counting “other persons” for purposes of polling. For that matter, the Constitution does not mention “caucasian” or skin color anywhere. When slavery was abolished, not a single word of the Constitution had to be changed.
Out of your list, multiple items were not controlled by the Constitution, but left to the states—the right of women to own property, the right of men to own other men, the requirement of property ownership for voting, the right of women to vote, voting, or the means by which the states selected their Senators. Of these, nothing was changed in the Constitution to change the first three. The Constitution was amended, by means spelled out in the Constitution, to change the means by which Senators are elected, and to override the interests of the states to determine the suffrage of women (though in this case, nothing in the Constitution denied women the right to vote, either).
Part of the genius of the Constitution is that it actually requires very little interpretation, but the reading of plain language. Do words and their meanings shift over time? Certainly, but they don’t render understanding impossible. Do the circumstances of our nation change over time? Yes, but they rarely require any sort of modification to the Constitution, which supports political means of adapting to change. And on those occasions when the Constitution itself is adjudged by a supermajority to not be meeting the needs of the republic (a nation of laws, not popular will), then a means exists, and has been regularly exercised, to amend that same Constitution.
Given all this, it’s offensive to a republic that a non-elected body, a star chamber as it were, arrogates to itself the sole and final right to tell all the other branches what the Constitution “really” means. It’s a distinctly extra-constitutional notion, as John Marshall was well aware of as he sly inserted it into his decisions.
As I noted in an earlier post, all the members of the Congress and all the elected members of the Executive swear the same oath as the robed justices, to protect and defend the Constitution against all enemies, foreign and domestic. Whatever else that may mean, it most certainly does not mean that the Supreme Court is the sole and final interpreter of the Constitution, but that such interpretation is a shared role.
I cannot overemphasize this final point enough: the responsibility for interpreting the Constitution is a shared responsibility, and in most of the cases we find offensive, such as the recent finding that this strange new class of combatant has a citizen’s habeas corpus, the court is attempting to impose a legal, constitutional solution on what is a political problem. The executive made his consitutional judgments and acted according to his responsibilities. The legislature, usually the least timely branch, acted and attempted to create as fair a legal process as possible for a class of combatant no system of government has ever made any provision for, short of maybe pirates (who were usually hung on site if not killed in combat). But in order to meddle with a political process, the court had to invent strange new rights that flat out aren’t present in the Constitution. That, OAM, is what is so offensive about many of these decisions, the judicial meddling in political processes. War throughout our history has been left alone by the Supreme Court as a political issue, and the exclusive prerogative of the Executive. Why the change now, especially when there’s a Congress perfectly willing to chastise and correct the Executive for all its mistakes, real or perceived?
On this new ruling, I’ll defer to the minority opinion of Justice Scalia, who was clear that causing the death of another has never been a requirement for imposing the death penalty. That seems enough on the surface to even deny certioari (sic) to the case.
Okay, Zane, let’s assume your “meddling in political processes” is valid. I’d ask you to consider this historical perspective:
In 1789, upon the ratification of the Constitution, the Congress (which had many of the Framers within its halls for that session) passed an Act called the Judiciary Act. In it, the Congress created original jurisdiction in the Supreme Court to hear cases against Federal Officials. The law was signed into law by George Washington (who was (IIRC) also president of the Constitutional Convention).
In 1800 a suit was filed against Secretary of State Madison by James Marbury arguing that Secretary Madison should deliver Mr. Marbury’s warrant to serve as a Federal Magistrate, an act Mr. Madison refused to do.
In 1801, the Congress refused to allocate funds to operate the Supreme Court.
In 1802, the Court ruled the Act of 1789 was unconstitutional because the constitution limited the Court’s original jurisdiction (those cases which could be filed as though the Court were a trial court) and Congress could not expand it.
That has been the law for over 200 years. It continues to be the law and Marbury v. Madison is quoted as often by “liberal” justices as it is by “conservative” ones.
Two other observations: Pirates were generally returned to the jurisdiction who captured them where they were tried and then executed. They were not treated as “illegal combatants” but as criminals. Second, as pointed out in post # 21, the fact there is no historical precedent should lead a strict constructionist to conclude the political judgment of the Congress and President was wrong. If there is no basis in the Constitution for this unique and new class of persons in custody that must mean the class is not recognized and the remaining classes of incarcerees must be examined to see which one fits. In my judgment had the President called these folks prisoners of war, the Court would never have interefered with their custody. He chose not to for whatever reason. Nonetheless, it seems inconsistent (at least) to claim to be a strict constructionist and then when it conflicts with one’s political position to cast the strict construction to the winds in favor of “majority rule.”
And, last time I checked, every check, balance and purpose of the Constitution is to avoid the tyranny of the majority.
The point is, as I said in response to another post, that judicial activism is in the eye of the beholder. Nothing more and nothing less.
Regards
OAM,
And poor Marbury never received his appointment, either. Marshall knew that, politically, he could not compel the executive to act, and the legislature was already against the court. But in deciding the case against Marbury, he did indeed invent (and I stress “invent”) the grounds for future Supreme Court review of “constitutionality.” Clever man. If you haven’t already, read what Jefferson thought of the whole case and his cousin Marshall. Colorful.
Geo6: This woman was no threat to anyone after her own reformation.
Agreed. Except does the reformation forgive her past crimes & punishment, of which she was duly convicted by a jury of her peers? I remember that story and I was conflicted about the result myself. But in the end, she still had to pay for her crimes as originally judged by the system in place.
And as you say, the ultimate authority on this is God – so if he decides to forgive her for her crimes as a result of her personal reformation, then sobeit. In the meantime, the jury of peers thing is all we got.
OAM,
And poor Marbury never received his appointment, either. Marshall knew that, politically, he could not compel the executive to act, and the legislature was already against the court. But in deciding the case, he did indeed invent (and I stress “invent”) the grounds for future Supreme Court review of “constitutionality.” Clever man. If you haven’t already, read what Jefferson thought of the whole case and his cousin Marshall. Colorful. For better or worse, that has been the role of the Supreme Court ever since.
I might add that in the time of the pirates, we didn’t have international conventions to adhere to (ratified by the Senate, per the Constitution) that defined who a combatant was and how that combatant could/could not be treated. Criminal law was most expedient. In the case of unlawful combatants, not so much. If it is the duty of our elected officials to adapt the Constitution to new circumstances, why is the Executive’s adaptation any less Constitutional than the Supreme Court’s? Is the choice only between calling these muj POWs or criminals? He didn’t choose a new category for trivial reasons, but because they were not by commonly agreed-upon legal standard either POWs or criminals.
I’m with you that quite often conservatives want their own brand of judicial activism, vice a truly strict constructionist reading. I don’t think that’s the case here, though.
Cordially
Zane and Geo6
I’ve read what Jefferson said and have always marvelled at the connivance of then CJ Marshall (who BTW was secretary of state and had signed Marbury’s appointment but not sent it to him before he moved down the street to the Court.)
G6 I can’t agree in the dichotomy you draw between those who look for “truth” vs. those who look to support their position. Isn’t your suggestion a tautology? If I agree with this position it must be truth while when I disagree with that one the person must be “searching”?
Each of your points are well taken and legitimate. That is why I’ve not taken issue with Lex’s analysis of Justice Kennedy’s opinion, but rather with his assertion that judges are legislating. I just want a justice who is consistent and intellectually honest enough to tell me what he’s doing and why. I’m not confident anyone on the SCOTUS Bench is either of those things.
Best
Kris- I am not saying the woman should not have had been required to remain in prison. My point is that the death penalty should be used only for those who are too dangerous to keep around at all. Bottom line, I believe the system as it is practiced in this country is immoral.
OAM, Been difficult to keep focused- work gets in the way, y’know? Here is what I perceive is the bottom line between the libs on the court and the conservatives. The libs will look for solutions to support their world view to the point of allowing bias to drive which fact sets will be considered or ignored. The conservative (or constructionists) will look at the facts, precedents, language and intent and accept the results whether or not they personally agree with it. That is true across the entire spectrum. For example, you attempt to make the point that we don’t really know what the intent of the authors in the writing of the Constitution. That, in effect, moves the goal posts and changes the playing field allowing for a more “flexible” interpretation language. If one examines the politics of the times, circumstances of the authors and exact language used in the text, it allows for better fidelity as to the meanings intended by the authors. But if you reject that- the world is your ideological oyster. But then, I am just a dumb old tanker. Respects.