A Disconcerting Supreme Court Decision

[Guest MikeSC]

The thing is, the "but it your stance isn't in the constitution" argument is really weak to me when neither is the other end. I mean you can't say

The death penalty is allowed. That much is known.

 

And if they had an actual basis to this decision --- they would have used that, rather than int'l opinion.

"These judges are wrong for disagreeing with me without constitutional precedent" when the entire issue has no constitutional precedent. 

Then, honestly, the Supreme Court has no business being involved --- period. If they have no grounds with which to make an opinion, then they should leave it up to the states.

Or when its like Mikes case where there is a abortion thread and he will go on and on about how its making up a law and that was wrong, but supports making up a law in the gay marrige thread. 

No, the beef with marriage is that the definition will be forced upon all states since a state has to recognize marriages in another state. The Amendment permits states to make their own decision on that situation.

 

Abortion was the Supreme Court inventing a "right" out of nowhere.

I don't see how you can be on both sides of the argument. Either you are against creating law to support opinion or you aren't.

There is no creation of law with the gay marriage amendment. That is allowing states to decide what they opt to define as marriage and what they do not.

-=Mike

[Guest Wildbomb 4:20]

Well, this seems...fun.

 

Stephen Joseph: How the hell are ya? Haven't been posting as often as I'd like, but anyways. One quote of yours said something very interesting indeed, where you said something along the lines of the "incorrect interpretation of the 8th Amendment." But the Supreme Court, under Article III, section ii, paragraph i, has the powers of Judicial Review: "The Judicial Power shall extend to all cases, under Law and Equity, arising under this Constitution...." Thereby, they have the power to review and interpret the Constitution; thusly, if they use the 8th Amendment in their decision, no matter which way you look at it, is the final interpretation of said Amendment. Period. Well, at least until another case comes along and they wind up deciding differently, but for argument's sake let's say that there isn't. Therefore, whatever the Supreme Court says in terms of applying the Eighth Amendment would therefore be Constitutional.

 

I think this is more an instance of perhaps politics overlooking the view of the Constitution. Scalia's argument is compelling and a very good read, but the overall view of the Court is also one to take for reading. Speaking of which, considering we're all arguing it without a real solid look at it:

 

SUPREME COURT OF THE UNITED STATES

ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS

CERTIORARI TO THE SUPREME COURT OF MISSOURI

No. 03—633.Argued October 13, 2004–Decided March 1, 2005

 

At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. This Court then held, in Atkins v. Virginia, 536 U.S. 304, that the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Simmons filed a new petition for state postconviction relief, arguing that Atkins’ reasoning established that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime. The Missouri Supreme Court agreed and set aside Simmons’ death sentence in favor of life imprisonment without eligibility for release. It held that, although Stanford v. Kentucky, 492 U.S. 361, rejected the proposition that the Constitution bars capital punishment for juvenile offenders younger than 18, a national consensus has developed against the execution of those offenders since Stanford.

 

Held: The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. Pp. 6—25.

 

    (a) The Eighth Amendment’s prohibition against “cruel and unusual punishments” must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and unusual.” Trop v. Dulles, 356 U.S. 86, 100—101. In 1988, in Thompson v. Oklahoma, 487 U.S. 815, 818—838, a plurality determined that national standards of decency did not permit the execution of any offender under age 16 at the time of the crime. The next year, in Stanford, a 5-to-4 Court referred to contemporary standards of decency, but concluded the Eighth and Fourteenth Amendments did not proscribe the execution of offenders over 15 but under 18 because 22 of 37 death penalty States permitted that penalty for 16-year-old offenders, and 25 permitted it for 17-year-olds, thereby indicating there was no national consensus. 492 U.S., at 370—371. A plurality also “emphatically reject[ed]” the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. Id., at 377—378. That same day the Court held, in Penry v. Lynaugh, 492 U.S. 302, 334, that the Eighth Amendment did not mandate a categorical exemption from the death penalty for mentally retarded persons because only two States had enacted laws banning such executions. Three Terms ago in Atkins, however, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them. 536 U.S., at 314—315. The Court also returned to the rule, established in decisions predating Stanford, that the Constitution contemplates that the Court’s own judgment be brought to bear on the question of the acceptability of the death penalty. Id., at 312. After observing that mental retardation diminishes personal culpability even if the offender can distinguish right from wrong, id., at 318, and that mentally retarded offenders’ impairments make it less defensible to impose the death penalty as retribution for past crimes or as a real deterrent to future crimes, id., at 319—320, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, and that the Eighth Amendment places a substantive restriction on the State’s power to take such an offender’s life, id., at 321. Just as the Atkins Court reconsidered the issue decided in Penry, the Court now reconsiders the issue decided in Stanford. Pp. 6—10.

 

    (b) Both objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question, and the Court’s own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles. Pp. 10—21.

 

        (1) As in Atkins, the objective indicia of national consensus here–the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice–provide sufficient evidence that today society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal,” 536 U.S., at 316. The evidence of such consensus is similar, and in some respects parallel, to the evidence in Atkins: 30 States prohibit the juvenile death penalty, including 12 that have rejected it altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. Moreover, even in the 20 States without a formal prohibition, the execution of juveniles is infrequent. Although, by contrast to Atkins, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been less dramatic, the difference between this case and Atkins in that respect is counterbalanced by the consistent direction of the change toward abolition. Indeed, the slower pace here may be explained by the simple fact that the impropriety of executing juveniles between 16 and 18 years old gained wide recognition earlier than the impropriety of executing the mentally retarded. Pp. 10—13.

 

        (2) Reject ion of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Atkins, 536 U.S. at 319. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles’ susceptibility to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 U.S. 815, 835. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, supra, at 395. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. 487 U.S., at 833—838. The same reasoning applies to all juvenile offenders under 18. Once juveniles’ diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty–retribution and deterrence of capital crimes by prospective offenders, e.g., Atkins, 536 U.S., at 319–provides adequate justification for imposing that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with petitioner’s contention that, given the Court’s own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest. Stanford should be deemed no longer controlling on this issue. Pp. 14—21.

 

    © The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18. See, e.g., Thompson, supra, at 830—831, and n. 31. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom. Pp. 21—25.

 

112 S. W. 3d 397, affirmed.

 

Essentially, this theory of law is correct. They are not making law, perse. In effect, they are extending the precedent set by Atkins v. Virginia, which has been done before in different cases. (NY Times v. United States extends the bounds of Near v. Minnesota, while the cases of Whitney and Gitlow extend the properties of Schenck, although in that instance, the government was given more power to limit speech.) The Court has precedence here, in there are Consitutional theories of law argued in support of the case. Hell, the first three-quarters of the decision are all based upon law. The last part of the decision troubles me; the Constitutional power of Judicial Review does technically extend internationally (through the whole ambassadorship side of things), but there were no theories of law presented, which is essential to a Supreme Court decision.

 

Those people trying to argue that the death penalty is unconstitutional need to re-read their Amendments and realize that people are only granted the rights of "life, liberty, and property through due process of law." Meaning that if you are convicted...the government can take your liberty, they can seize your property...and yep, take your life, too. I may not agree with it ethically, but legally, it's solid as stone.

 

Sorry if I picked you out, SJ, but the quote you had sort of resonated with me, and I felt compelled to write. Especially with the news that Massachusetts is opening up the first UMass School of Law where I can do my post-grad work and pass the bar at.

 

--Ryan

...journalist + law degree = washington's worst nightmare? or maybe it's sports + journalist = my life anyways. oh, fuck it, let's go bowling...

[Guest Contentious C]

Let's see...

 

Article [VIII.]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 

Looks applicable to me.

Considering that the death penalty is legal --- then, no, it is not valid. They are making laws, rather than reviewing them.

-=Mike

It is valid.

 

Not every death-penalty case is the same. Just because it's legal in 80% of the states doesn't mean it absolutely should apply to people who don't know their asshole from their elbow when it comes to what real life is like. Knowing the difference between right and wrong is one thing; killing someone is inexcusable. Expecting teenagers to understand the value of respecting society as a whole is something else entirely, and telling them that the best way to deal with fucked-up juveniles is to kill them rather than to try to rehabilitate them - you know, that thing prison is supposed to be there for? - is incredibly barbaric, short-sighted, and frankly quite gutless.

 

It isn't our fault that you can't see it.

[Jobber of the Week 0]

You're no longer a child, or a human being really, when you start shooting a gun with the intent to kill someone. Your age isn't a factor at that point, or at least it shouldn't be. The grieving process is still the same for the families who lost a loved one, and the life is still terminated. It seems like you're trying to justify kids killing.

And nobody's trying to say they shouldn't be punished. What's being said is that the government has no business deciding to end their life when they aren't even legally their own person yet.

[Guest MikeSC]

It is valid.

 

Not every death-penalty case is the same. Just because it's legal in 80% of the states doesn't mean it absolutely should apply to people who don't know their asshole from their elbow when it comes to what real life is like. Knowing the difference between right and wrong is one thing; killing someone is inexcusable. Expecting teenagers to understand the value of respecting society as a whole is something else entirely, and telling them that the best way to deal with fucked-up juveniles is to kill them rather than to try to rehabilitate them - you know, that thing prison is supposed to be there for? - is incredibly barbaric, short-sighted, and frankly quite gutless.

 

It isn't our fault that you can't see it.

Since when have I gave a damn about rehabilitating?

 

If a 16-year old will kill somebody, then screw them. There is nothing more that can be done to help them. They have crossed a line that one cannot possibly take back.

 

Just because YOU don't like the death penalty means approximately shit.

 

It IS legal and if somebody can reasonably be assumed to know right and wrong, then they should suffer the consequences for their action.

 

Just because you can't see it is not our fault.

-=Mike

[SuperJerk 0]

No it's not equal. But neither should be up to the Supreme Court! The people have made their will clear in different states, the cruel and unusual clause is nebulous, there is not a clear preponderence of evidence to overturn the will of the people, the judicial branch is overstepping its bounds. Gosh!

Ah, yes...the "will of the people".

 

So, if the will of the people was to have slavery, that'd be okay?

 

No, because we have a Constitutional Amendment which outlaws slavery, just like we have a Constitutional Amendment that outlaws cruel and unusual punishment. The Supreme Court is merely exercising its duty in enforcing the Constitution.

 

Abortion was the Supreme Court inventing a "right" out of nowhere.

 

Ever heard of the 9th Amendment?

[Stephen Joseph 0]

It seems as though Stephen Joseph is arguing against the very concept of Judicial Review.

I am arguing against the concept of judicial activism.

 

A law is made. People believe that this law is in fact contrary to already established law. That new law is reviewed by the judicial system to see if in fact it is contrary to the spirit of the law.

 

you're confusing what is proper judicial action vs. proper legislative action

[Stephen Joseph 0]

--response to wildbomb

 

With the understanding that judicial review is a good thing to have, what exactly is judicial review? What exactly is reinterpreting the spirit of the law? Such a question can only be answered by re-examining the past decision and interpretations of the spirit of the law with regards to this case (ex-ante evidence). Current events have no bearing on this interpretation, except to bring forth such a case for re-evaluation to the court.

 

Certainly, if we look at the spirit of how the founding father's crafted the 8th amendment, and upon looking at that 8th's amendment origins in British Common Law, we're left to conclude that basing the decision to overturn the 'right' to execute those below the age of 18 is an incorrect application of the 8th amendment.

 

That is not to say that I do not agree with the court's decision. I do. Our death penalty system as it currently stands is a joke. Any system that takes 20 years to process a death sentence...is a joke.

 

But, the point that I think a few of us are trying to make is that, when there is a societal problem with a law currently existing within the spirit of the law, the course of action is legislative and executive, rather than judicial. Here, in this case, the judicial branch legislated. They did not clarify law, they created new law.

[Stephen Joseph 0]

So, if the will of the people was to have slavery, that'd be okay?

 

 

No, because we have a Constitutional Amendment which outlaws slavery, just like we have a Constitutional Amendment that outlaws cruel and unusual punishment. The Supreme Court is merely exercising its duty in enforcing the Constitution.

 

Abortion was the Supreme Court inventing a "right" out of nowhere.

 

Ever heard of the 9th Amendment?

Slavery was overturned because when the "will of the people" became strong enough to force a look at the issue, it was found to be in conflict with a particular clause of the constitution.

 

In an alternative universe with a constitution that legally allowed slavery, such will of the people could only change the constitution via the amendment process.

 

The judicial branch exists to clarify law. It is up to others to create it. So yes, if the constitution allowed slavery with the particular clause of all men being created equal., under the law it would be okay by the judicial system until such a time as the will of the people changed it.

[kkktookmybabyaway 0]

...journalist + law degree = washington's worst nightmare?

Christ.

 

Oh well, at least you can now sue yourself for libel...

[Guest Wildbomb 4:20]

--response to wildbomb

 

With the understanding that judicial review is a good thing to have, what exactly is judicial review?  What exactly is reinterpreting the spirit of the law?  Such a question can only be answered by re-examining the past decision and interpretations of the spirit of the law with regards to this case (ex-ante evidence).  Current events have no bearing on this interpretation, except to bring forth such a case for re-evaluation to the court.

 

Certainly, if we look at the spirit of how the founding father's crafted the 8th amendment, and upon looking at that 8th's amendment origins in British Common Law,  we're left to conclude that basing the decision to overturn the 'right' to execute those below the age of 18 is an incorrect application of the 8th amendment.

 

That is not to say that I do not agree with the court's decision.  I do.  Our death penalty system as it currently stands is a joke.  Any system that takes 20 years to process a death sentence...is a joke. 

 

But, the point that I think a few of us are trying to make is that, when there is a societal problem with a law currently existing within the spirit of the law, the course of action is legislative and executive, rather than judicial.  Here, in this case, the judicial branch legislated. They did not clarify law, they created new law.

Judicial review has always, always, always been about making the Constitution work for current events, dating all the way back to Marbury v. Madison, which essentially established the principle. (Justice Marshall was genius for this decision...) Re-examining the past decision is at least partially looking to see if the old theory of law is applicable in current circumstances.

 

Although I do agree with you on your history of the 8th Amendment, I do not agree with your conclusion based upon it. Although there is precedent and history in both previous Supreme Court decisions and Common Law, the Supreme Court is free to determine whether or not the former theory of law is indeed constitutional. Hence why they are not legislating; they are interpreting the Constitution in a new way.

 

The Supreme Court's job is not to merely uphold precedent and rule on cases based upon said precedent; rather, their job is to undertake both precedent and other theories of law in order to determine what is and is not constitutional.

 

kkk: Well said, good sir. I don't know what the hell's going on anymore. The people running the radio station have really turned me off of it with the "new direction" their taking (read: shit on the news/sports department while slobbering all over the terrible morning show) I'm double-majoring anyways, so who knows.

 

And if I manage to sue myself for libel, you'll be the first to know. Although technically, if it were radio it's slander...libel for television. Oh fuck, it's all the same damned thing.

 

--Ryan

[Stephen Joseph 0]

--response to wildbomb

 

With the understanding that judicial review is a good thing to have, what exactly is judicial review?  What exactly is reinterpreting the spirit of the law?  Such a question can only be answered by re-examining the past decision and interpretations of the spirit of the law with regards to this case (ex-ante evidence).  Current events have no bearing on this interpretation, except to bring forth such a case for re-evaluation to the court.

 

Certainly, if we look at the spirit of how the founding father's crafted the 8th amendment, and upon looking at that 8th's amendment origins in British Common Law,  we're left to conclude that basing the decision to overturn the 'right' to execute those below the age of 18 is an incorrect application of the 8th amendment.

 

That is not to say that I do not agree with the court's decision.  I do.  Our death penalty system as it currently stands is a joke.  Any system that takes 20 years to process a death sentence...is a joke. 

 

But, the point that I think a few of us are trying to make is that, when there is a societal problem with a law currently existing within the spirit of the law, the course of action is legislative and executive, rather than judicial.  Here, in this case, the judicial branch legislated. They did not clarify law, they created new law.

Judicial review has always, always, always been about making the Constitution work for current events, dating all the way back to Marbury v. Madison, which essentially established the principle. (Justice Marshall was genius for this decision...) Re-examining the past decision is at least partially looking to see if the old theory of law is applicable in current circumstances.

 

Although I do agree with you on your history of the 8th Amendment, I do not agree with your conclusion based upon it. Although there is precedent and history in both previous Supreme Court decisions and Common Law, the Supreme Court is free to determine whether or not the former theory of law is indeed constitutional. Hence why they are not legislating; they are interpreting the Constitution in a new way.

 

The Supreme Court's job is not to merely uphold precedent and rule on cases based upon said precedent; rather, their job is to undertake both precedent and other theories of law in order to determine what is and is not constitutional.

 

kkk: Well said, good sir. I don't know what the hell's going on anymore. The people running the radio station have really turned me off of it with the "new direction" their taking (read: shit on the news/sports department while slobbering all over the terrible morning show) I'm double-majoring anyways, so who knows.

 

And if I manage to sue myself for libel, you'll be the first to know. Although technically, if it were radio it's slander...libel for television. Oh fuck, it's all the same damned thing.

 

--Ryan

There are two ways of interpreting the constitution (I remember from high school)

 

1) Strict constructionalist

2) Loose interpretationalist

 

I guess I'm #1, and you're #2, and there's absolutely no way we'd ever agree on how the court handled it. So I will leave it at that, acknowledge your viewpoint while disagreeing with it.

 

 

That being said, I think its much better to go bowling.

[SuperJerk 0]

Slavery was overturned because when the "will of the people" became strong enough to force a look at the issue, it was found to be in conflict with a particular clause of the constitution.

 

In an alternative universe with a constitution that legally allowed slavery, such will of the people could only change the constitution via the amendment process.

 

The judicial branch exists to clarify law. It is up to others to create it. So yes, if the constitution allowed slavery with the particular clause of all men being created equal., under the law it would be okay by the judicial system until such a time as the will of the people changed it.

Man, did you ever miss my point. Let me clarify.

 

If the "will of the people" decided TODAY that it wanted slavery, the Courts would step in and overturn that law based on the 13th Amendment.

 

The Constitution and its amendments exist not just to provide a blueprint of government action, but also to protect the rights of the people. According to the Supreme Court, allowing those executions violated the 8th Amendment. Thus, they not only have the duty, but the responsibility, to overturn laws which violate the Constitution and its amendments.

 

That is judicial review.

 

I am arguing against the concept of judicial activism.

 

A law is made. People believe that this law is in fact contrary to already established law. That new law is reviewed by the judicial system to see if in fact it is contrary to the spirit of the law.

 

What happened in this case, which you are arguing against, was judicial review, according to the definition you just gave. And yet you're still arguing they had no right to do it. Thus, you are arguing against judicial review.

[Vyce 0]

No, he's not, really.

 

It's a normative vs. textualist argument.

 

He agrees, much like I do, along the lines of Scalia's dissent. I'll recommend reading that dissent (which is about the 18th time that's been suggested in this thread) again, because Scalia, who is largely a textualist, argues quite capably why he feels this was the wrong decision to make. Why? Because the Court these days is more and more making rulings by pulling shit literally out of its ass without solid legal theory to back it up.

[Stephen Joseph 0]

It's a normative vs. textualist argument.

Correct.

 

RJ (and much more eloquently Wildbomb) believe that the constitution and the laws can be amended by reinterpreting the intent. That is the 'loose interpretationist' argument. Vyce and I tend to be more of the letter of the law and very strict interpretation (no room for touchy feeling or what-not)

 

That debate, (loose vs. strict) has gone on since the damn document was signed.

 

RJ, why don't you a) read Scalia with an open mind b) read Wildbomb's posts and learn how to make an argument, and c) come back and offer something up other than blind obedience to dictum when you're ready.

[Guest Wildbomb 4:20]

But there WAS an obvious legal theory AND precedent used in the opinion of the Court. The argument was the 8th Amendment prohibited the punishment of death in specific instances: those under the age of 18. There is precedence set, which the Court details in parts (a) and (b) of its decision. The Court concludes with the part Mike is taking a shit over, part ©, international opinion, which I agree has no place in there. But there are important theories of law presented in parts (a) and (b). I have yet to read the second concurring opinion, nor the second dissent. I agree that Scalia's dissent is a piece of legal text art. One of the most interesting reads of Surpreme Court case law I've ever seen. However, to say that the Court did not use good legal theory to come to its conclusions is infinitely ludicrous.

 

Robot: You're confusing the definition of judicial review and the viewpoint SJ holds, which is strict constructionalism, much like Mr. Scalia. You are more loose interpretationalist, which is closer to the viewpoint I hold. You're also failing to use some key legal terms in your argument here, which is partially why you're being torn to shreds. The Constitution and the Amendments are to establish the powers of the government and its relationship to the states, and to limit governmental power. That's all a right is. Period. No more. No less.

 

SJ: Well, throw some air freshener in the ole shoes and shine up the ball. Time to line 'em up...

 

Now, for what you actually said...I can see where your viewpoint comes from and the theory of law behind it. I also partially agree with it...but I still find that using merely precedent and history of common law on current matters archaic. But you're right when you say that we'd never come to full agreement on it because we hold different theories of constitutional law. Meh. Shit happens.

 

My real question is this: why didn't the government in the matter try to argue due process? I see it nowhere listed in the decision, and if the Court was not presented with, you know, the actual justification for the death penalty...oye.

 

--Ryan

[Stephen Joseph 0]

umm.

 

yeah.

 

i wondered about that due process clause too. oye indeed.

[Guest Wildbomb 4:20]

RJ (and much more eloquently Wildbomb) believe that the constitution and the laws can be amended by reinterpreting the intent. That is the 'loose interpretationist' argument. Vyce and I tend to be more of the letter of the law and very strict interpretation (no room for touchy feeling or what-not)

 

That debate, (loose vs. strict) has gone on since the damn document was signed.

 

RJ, why don't you a) read Scalia with an open mind b) read Wildbomb's posts and learn how to make an argument, and c) come back and offer something up other than blind obedience to dictum when you're ready.

 

Thank you. Makes what I was trying to say a little clearer. Although I don't believe in that "touchy-feely" horseshit either. It's just trying to determine the correct interpretation of the law based upon the times. Hence why, at least in my mind, the Constitution is vague as hell. Allows for interpretation.

 

And yeah. About that due process clause deal. If the Court wasn't presented with that, how is there an argument here? It's kind of ESSENTIAL to the case. Perhaps the lack of that is one major reason why the Court ruled the way it did. I agree with the conclusions here and most of the theories behind it...but without due process, the case could have argued the death penalty in its entirety.

 

That's just one can of worms that shouldn't be touched with a 40 foot pole.

[Guest BDC]

Slavery was overturned because when the "will of the people" became strong enough to force a look at the issue, it was found to be in conflict with a particular clause of the constitution.

 

In an alternative universe with a constitution that legally allowed slavery, such will of the people could only change the constitution via the amendment process.

 

The judicial branch exists to clarify law.  It is up to others to create it.  So yes, if the constitution allowed slavery with the particular clause of all men being created equal., under the law it would be okay by the judicial system until such a time as the will of the people changed it.

Man, did you ever miss my point. Let me clarify.

 

If the "will of the people" decided TODAY that it wanted slavery, the Courts would step in and overturn that law based on the 13th Amendment.

 

The Constitution and its amendments exist not just to provide a blueprint of government action, but also to protect the rights of the people. According to the Supreme Court, allowing those executions violated the 8th Amendment. Thus, they not only have the duty, but the responsibility, to overturn laws which violate the Constitution and its amendments.

 

That is judicial review.

Yeah, that'd work today because there is an amendment explicitly against it. Not a terribly good example there.

[kkktookmybabyaway 0]

Although technically, if it were radio it's slander...libel for television. Oh fuck, it's all the same damned thing.

Oops. Was thinking from my print background. I love that line in Spiderman that Parker's newspaper boss says about the subject...

[Guest MikeSC]

--response to wildbomb

 

With the understanding that judicial review is a good thing to have, what exactly is judicial review?  What exactly is reinterpreting the spirit of the law?  Such a question can only be answered by re-examining the past decision and interpretations of the spirit of the law with regards to this case (ex-ante evidence).  Current events have no bearing on this interpretation, except to bring forth such a case for re-evaluation to the court.

 

Certainly, if we look at the spirit of how the founding father's crafted the 8th amendment, and upon looking at that 8th's amendment origins in British Common Law,  we're left to conclude that basing the decision to overturn the 'right' to execute those below the age of 18 is an incorrect application of the 8th amendment.

 

That is not to say that I do not agree with the court's decision.  I do.  Our death penalty system as it currently stands is a joke.  Any system that takes 20 years to process a death sentence...is a joke. 

 

But, the point that I think a few of us are trying to make is that, when there is a societal problem with a law currently existing within the spirit of the law, the course of action is legislative and executive, rather than judicial.  Here, in this case, the judicial branch legislated. They did not clarify law, they created new law.

Judicial review has always, always, always been about making the Constitution work for current events, dating all the way back to Marbury v. Madison, which essentially established the principle. (Justice Marshall was genius for this decision...) Re-examining the past decision is at least partially looking to see if the old theory of law is applicable in current circumstances.

But the Founding Fathers did not intend for ANY branch of the gov't to have untouchable power. They did not INTEND for the Supreme Court to be able to strike down any law without having the other branches overturn it.

 

Congressional bills can be vetoed. The President's veto can be overridden.

 

What can be done about terrible Supreme Court decisions? Pass Constitutional Amendments for exceptionally specific situations?

 

The Supreme Court GAVE ITSELF its power. Not exactly democracy.

Although I do agree with you on your history of the 8th Amendment, I do not agree with your conclusion based upon it. Although there is precedent and history in both previous Supreme Court decisions and Common Law, the Supreme Court is free to determine whether or not the former theory of law is indeed constitutional. Hence why they are not legislating; they are interpreting the Constitution in a new way.

"Interpreting it in a new way" is, in fact, making new law.

The Supreme Court's job is not to merely uphold precedent and rule on cases based upon said precedent; rather, their job is to undertake both precedent and other theories of law in order to determine what is and is not constitutional.

The Supreme Court is trying to find ANYTHING to justify decisions that are not that defensible. British common law, etc. --- while they helped make up the basis of our Constitution --- should play no role in Constitutional review.

-=Mike

[Ripper 0]

The decision was defensable even if you take away the taking international precedent part. That was only PART of a arguement that contained various points.

[Guest MikeSC]

The decision was defensable even if you take away the taking international precedent part. That was only PART of a arguement that contained various points.

Their argument in favor of their judgment was moral and based on int'l opinion.

 

NEITHER of which have any bearing on law.

 

Just because the liberal justices find something morally appalling does not make it illegal or unlawful.

-=Mike

[Ripper 0]

Just because the liberal justices find something morally appalling does not make it illegal or unlawful.

-=Mike

Dude....

[Guest MikeSC]

Just because the liberal justices find something morally appalling does not make it illegal or unlawful.

              -=Mike

Dude....

It's true.

 

The conservative justices find abortion to be morally appalling. Far more so than death penalty opponents view the death penalty.

 

It is STILL lawful, whether they like it or not.

-=Mike

[Ripper 0]

No i agree with the comment...

 

I just think that at some point i am going to have to be ready to quote that a again. maybe not today, maybe not tommorrow...but someday that comment is going to come into play again.

[SuperJerk 0]

If the "will of the people" decided TODAY that it wanted slavery, the Courts would step in and overturn that law based on the 13th Amendment. 

 

The Constitution and its amendments exist not just to provide a blueprint of government action, but also to protect the rights of the people.  According to the Supreme Court, allowing those executions violated the 8th Amendment.  Thus, they not only have the duty, but the responsibility, to overturn laws which violate the Constitution and its amendments.

 

That is judicial review.

Yeah, that'd work today because there is an amendment explicitly against it. Not a terribly good example there.

It was a hypothetical situation designed to illustrate how the "will of the people" can and should be subservient to people's rights. Of course it would never actually happen.

[Guest MikeSC]

If the "will of the people" decided TODAY that it wanted slavery, the Courts would step in and overturn that law based on the 13th Amendment. 

 

The Constitution and its amendments exist not just to provide a blueprint of government action, but also to protect the rights of the people.  According to the Supreme Court, allowing those executions violated the 8th Amendment.  Thus, they not only have the duty, but the responsibility, to overturn laws which violate the Constitution and its amendments.

 

That is judicial review.

Yeah, that'd work today because there is an amendment explicitly against it. Not a terribly good example there.

It was a hypothetical situation designed to illustrate how the "will of the people" can and should be subservient to people's rights. Of course it would never actually happen.

You do realize that it was also a case where the Supreme Court stated it was lawful, right?

 

It actually shows the need for the gov't to have the ability to override Supreme Court decisions.

-=Mike

[SuperJerk 0]

RJ, why don't you a) read Scalia with an open mind b) read Wildbomb's posts and learn how to make an argument, and c) come back and offer something up other than blind obedience to dictum when you're ready.

 

You have yet to explain how what the Supreme Court did was judicial activism, rather than judicial review, other than repeatedly defining judicial activism for us. Simply put, if you've actually made the connection between judicial activism and the Supreme Court's ruling, I sure don't see it.

 

My argument style is simple:

-state a premise.

-provide facts.

-explain how the facts support the premise.

 

I've done this every step of the way, so I don't know why you're complaining.

 

You're confusing the definition of judicial review and the viewpoint SJ holds, which is strict constructionalism, much like Mr. Scalia.

 

I'm not confusing anything. He's repeated tried to say that what the Supreme Court did was judicial activism, while I argue that its simply judicial review. In my opinion, the Supreme Court's decision should be satisfactory to either schools of interpretation given that the term "cruel and unusual punishment" is actually used in the 8th Amendment.

 

You're also failing to use some key legal terms in your argument here, which is partially why you're being torn to shreds.

 

Oh, I'M SORRY. I didn't see the sign on the board that said "lawyer's only".

 

Like I said, my argument style is simple:

-state a premise.

-provide facts.

-explain how the facts support the premise.

 

That's more than the rest of you fuckers seem to be able to do most of the time.

[Stephen Joseph 0]

Slavery was overturned because when the "will of the people" became strong enough to force a look at the issue, it was found to be in conflict with a particular clause of the constitution.

 

In an alternative universe with a constitution that legally allowed slavery, such will of the people could only change the constitution via the amendment process.

 

The judicial branch exists to clarify law.  It is up to others to create it.  So yes, if the constitution allowed slavery with the particular clause of all men being created equal., under the law it would be okay by the judicial system until such a time as the will of the people changed it.

Man, did you ever miss my point. Let me clarify.

 

If the "will of the people" decided TODAY that it wanted slavery, the Courts would step in and overturn that law based on the 13th Amendment.

 

The Constitution and its amendments exist not just to provide a blueprint of government action, but also to protect the rights of the people. According to the Supreme Court, allowing those executions violated the 8th Amendment. Thus, they not only have the duty, but the responsibility, to overturn laws which violate the Constitution and its amendments.

 

That is judicial review.

Yeah, that'd work today because there is an amendment explicitly against it. Not a terribly good example there.

It's a great example.

 

When the original governing documents were formed, one of its main clauses was "all men are created equal". That conflicted with the legal practice of slavery, and segregation, and over time both were struct down because in the hierarchy of the law, "all men are created equal" trumped existing practice.

 

Amendments can be repealed. I cite the 18th and 21st. The judicial branch had no say in whether or not alcohol should be consumed. It was by the will of the people that it legislatively became illegal. Thus, the justice system operated with that being part of the law, until the will of the people overturned that law legislatively again.

 

I only use this example to point out the process of what the law is. Law is neither good nor bad. It exists. The judicial system upholds that law to all. It is via the legislative/executive that we determine what is good and what is bad, what we outlaw and what we accept. The judicial system serves to clarify those laws.

 

Really, if you're going to nitpick, nitpick with some oomf.