Step in the right direction

Thanks for an astute, thoughtful and civil post. You're wrong but you're cool.

 

Uncle Janko,

I am not sure if your post was directs towards me. If so, thanks for the compliment. Also, what do you find wrong with my opinion? Is it my stance on the death penalty or my unorthodox ways to deal with inmates?

 

Uncle,

No, no. I did NOT intend to call Justice Scalia a racist. I have seen no evidence to suggest that he harbors racist views or anything of the sort.

My use of the term "darky" was to conjure up the immediately post Colonial decade when the constitution was actually committed to paper. I used the word to illustrate how very, very different our world is from that time and to thereby show that attempting to view our constitution as a "strict constructionist", through the eyes of the Founding Fathers is an exercise in practical and legal absurdity.

I apologize to any who took offense either at the word itself or who may have interpreted my comment as a personal smear of Justice Scalia.

I don't refer to people by

 

What he said.
I saw some movie when I was kid about a man (maybe woman?) who was innocent but put to death. It scared the h*ll out of me. The thought of the entire society agreeing that you need to be killed. Except that they're wrong. And we have done it several times.
On the other hand, it doesn't take a rocket scientist to have that gutt feeling of revenge. I certainly understand the families involved wanting to avenge the death.

 

...racist epithets.

 

I can understand your point-of-view. As I've said elsewhere, it can be exceedingly difficult to understand another culture, even one relatively recent and within our own nation's boundaries. To really get inside of the minds of the Founding Fathers and understand exactly what they meant by, for example, the admonition that the President "take care that the Laws (passed by Congress) be faithfully executed" is no mean feat. And of course, that little clause, probably a result of some compromise or just a throw away line suggested by some delegate, has ended up providing a huge power grab for the Executive Branch. Of course, it can be impossible to really know exactly what is meant by this or that, even with modern day legislation.

However, we'll still be on the same side of this debate so long as the difficulties with discovering original intent don't cause you to throw up your hands and justify, say, the excesses of the Warren Court or the Court in Lochner or Dred Scott, in which our law became, in a very real sense, exactly what 5/9 lawyers in black robes thought it should be--that's dangerous!

Too many "scholars" have used a few difficulties with original intent as a license to allow unelected judges to overturn perfectly valid legislation constructed by popularly elected representatives.

I can't go along with it; it's undemocratic rule by a judicial aristocracy.

 

Thanks, Nosborne. That cleared that up. Rob, we disagree on the death penalty. Your stuff about changing prisons may well have some merit. I was a prison chaplain for a year but I'm no expert. My big point in all this is to applaud the civility of the discussion.

Which is why it's necessary to whack trolls and kooks who foment hatred.

 

"Overturn perfectly valid legislation".

Hm.

You are talking about the principal of judicial review. It has been around since Chief Justice Marshall. Don't you see that it is up to the Supreme Court, if anyone asks, to determine whether legislation is "perfectly valid" under the constitution?

Judicial review is by no means a prerequisite for a free, democratic society. Few civil law countries had the doctrine until recently under the EU Convention on Human Rights. Even now, the U.K. is trying to get used to the idea that its Court system not only MAY, but MUST declare invalid any Act of Parliment that contravenes the Convention.

So if you have a written constitution and Congress or a state legislature goes off the rails, say, by declaring that black people may not vote in federal elections, where do you go to fix it? If the Courts can't review legislation, then the constitution is whatever the Congress wants it to be. That's how it is in England, BTW.

But the genius of American government is the system of checks and balances that keeps us free of tyranny by dividing power among three different groups.

Kindly give me a SPECIFIC example of a Warren Court excess.

 

No problem with the concept of judicial review here, I'm just saying that the Supreme Court gets off track sometimes also; unless something is specifically unconstitutional and a real, honest case can be made for its unconstitutionality, the Supreme Court has no right overturning it or for goodness sakes ordering a tax increase like was done in Kansas City a few years back--absurd!

As for the Warren Court, where do I start? I'm not talking about whether or not their decisions tended to lead to a more just society or not--I haven't even reached that issue. Many may have and are laudable, such as Brown v. Board, which I personally think can be justified from a strict constructionist perspective. I'm talking about whether they had Constitutional standing to do much of what they did.

As for excess, you could pretty much cite any decision ever authored by William O. Douglas, for a start. Have you ever read his concurrence in Roe--it's hysterical! (perhaps not a concurrence, perhaps it was a seperate decision in favor of the majority decision, can't remember). I know, it's not technically Warren Court, but surely a product of the mindset. Or how about Griswoldand its progeny Roe? An all-encompassing Right to Privacy? Right there in the text of the Constitution? Penumbras being used very cleverly not just to reasonably expand existing rights such as those protected by the First, the Fourth, the Ninth, but rather being used to fashion a new, all-encompassing right that we find nowhere in such a sweeping manner in the text of the Constitution, in Madison's voluminous notes on the Philadephia Convention--nowhere. You and I both know that the Founding Fathers knew very much about the concept of privacy, it wasn't foreign to them at all, and yet, the Constitution was drafted by carving out specific areas--search & seizure without a warrant from a neutral magistarte, for example--not outlining an overall right.

Have you read The Brethren, written by authors very favorable to the Warren Court, regarding the excesses that occurred in the Warren Court and the early 70s Warren aftermath? Justices weren't even trying to justify their decisions on grounds of legitimate jurisprudence anymore, they just started with a result that they thought beneficial to society and worked backwards to achieve that ends without regard to precedent--they stopped even making pretenses about it.

It's not jurisprudence, it's legislation, and it's wrong, it wreaks havoc on the balance of powers. Judges, with the tools before them--the Constitution and 200+ years of precedent, should decide cases accordingly, without regard to whether the end result is one that they favor or not--that's a job for those whom we elect; to state otherwise is to open the door to rule by judicial fiat.

 

Yes, I read "The Brethren" years ago.

There is a jurisprudential difference between judging and legislating. Hart (Yes, Uncle, I am still trying) says that legislating entails making a general rule that applies to s set of citizens in a set of circumstances whereas judging is deciding between litigants in a single case.

What I think stings for you, little fauss, is that effect of a Supreme Court act of "judgery" very frequently has such enormous impact on litigation throughout the U.S. that it looks more like legislation.

I'm not sure what to do about this. It is an inevitable consequence of judicial review, as the Brits are now discovering.

I suppose that one could define a"strict constructionist" as a judge who closely follows a predetermined set of rules when applying the law to the facts. The trouble with that is, it's the Court that determines some (but not all) of those rules of construction.

Perhaps you would be happier with the existing system if the Justices were elected or had limited terms? Personally, I have never favored lifetime appointments; the states do very well without them. I think that the system could do with a bit more accountability. On the other hand, part of the genius of the American system is to have democracy but not too much democracy!

 

My biggest beaf with this decision is how the decision was made. The opinion was written by liberal justice Anthony Kennedy. The Supreme Court is expected to cite a Constitutional basis for its rulings. Not so in this case. Instead, Kennedy cites a "national consensus" and "international opinion." Boiled down, "national consensus" is just another way of saying "the will of the majority." So now it seems official. The Supreme Court will base its rulings on what is and what is not Constitutional based on the mood of the people; based on the whims of the mob. This is nothing less than the legitimization of the lynch mob. If there's a "national consensus" that old so-and-so must hang, then hang he does, regardless of whether or not such niceties as the rule of law have been followed or Constitutional rights met. Perhaps the next step is for the Supremes to hire a polling firm to measure the mood of the people before they issue rulings on Constitutionality. The reference to "international opinion?" Maybe some guidance from the Supremes is needed at this point. At what point does international opinion trump the dictates and limitations of our Constitution?

 

Amen and let's include abortion as well. Let's have a totally pro-life society!

 

AV8R,

You put your finger on the problem with the eighth amendment prohibition of "cruel and unusual punishment".

In general, the Supreme Court makes its decisions with no reference whatever to popular perception or international standards, except to the extent that the U.S. has agreed to be bound by, say, a treaty.

But WHAT, exactly, does "cruel and usual" actually MEAN? This Court, rightly, I think, considers that "cruel and unusual" is an evolving community standard so they look to see what the "community" seems to be thinking these days. Not in 1789; NOW.

It might strike you that the community really ought to be seen as expressing itself through its elected legislators; if Texas decides that "cruel and unusual" includes death for juveniles, Texas can change its law through the usual legilative process. However, there's a problem with this analysis.

The eighth amendment is a guarantee of CONSTITUTIONAL rights. A constitutional right cannot be dependant on the will of the legislature. It is MORE than a statutory right; it cannot be created or destroyed except through a constitutional amendment.

Sooo...we're back to the Courts!

 

I want you to know before I rip you to shreds that I like your posts, you seem like a thoughtful person, and I'm proud to know that such as you is posting on this forum as an ambassador for our great and noble profession--I really mean that.

And now for the point of contention...

If we really don't like what the Constitution says, if we really think it should evolve to reflect the prevailing community standards, and that text that obviously had meaning to those who wrote it can be refashioned whenever five lawyers in black robes think that "new community standards" have evolved, what good is the Constitution at all?

First, I have very little faith--and neither should anyone else--in the the ability of the Supreme Court to put their finger precisely on "what the community seems to be thinking these days"; I dare say the only standards with which most of them are familiar are those of the cultural elite, and that's not an accurate gauge of widespread evolving community standards, it's a gauge of the standards of a very narrow, rarified slice of America.

Second, with regard to the death penalty, it's far from settled that the prevailing community standards have been shouted from the rooftops to the effect that the death penalty as applied to minors is cruel and unusual and violative of the Eighth--particularly in the case(s) that were the subject of this litigation. I haven't taken a survey on this point, but I doubt that anything approaching an evolving consensus would be discovered. And what qualifies the Supreme Court to act as social scientists defining what the prevailing standards are anyway?

Third, when did prevailing standards have anything to do with Constitutional jurisprudence? That's where the legislatures step in, they can fashion law that reflects community standards as they evolve, that's their job, they're elected, we can remove them if they veer far afield of community standards. In a very real sense, the purpose of the Supreme Court is to do precisely the opposite of what you appear to suggest; their job is to uphold the Constitution in the face of evolving community standards.

Fourth, there's a provision written right in the Constitution if we don't like what it says or think the text needs a new spin to keep pace with evolving values--it's called Article 5, and it's been used 27 times in our nation's history to bring the Constitution up to speed, and it could be used to make the death penalty as applied to minors or anyone else unconstitutional--provided those community standards really have evolved as the justices seem to think. And if it seems unfair that it should require climbing such a mountain (3/4 of state legislatures, 2/3 of both Houses of Congress), then so be it; that's the Constitution we were given; it wasn't supposed to be that easy to amend--thankfully!

Fifth, if one reads just a bit beyond Article 6, they'll discover that the Constitution is the supreme law of the land. Of what use is law if it can be interpreted by a judge to mean something very different from what it says? Law ceases to exist, and we're left with rule by a judge, and again, as I alluded to in a previous post, that scares me to death because they're not elected and they can hardly be removed.

I still love you Nosborne (in a strictly guy-to-guy platonic way--oh boy, now I'll start another firestorm!)

 

Originally posted by dcv

Posted by Jimmy

Though I am about as conservative as they come, I am with dcv and Jimmy. I am always at a loss as to why any human would want to be responsible for the death of another.

Before anyone asks me my feelings toward these (you fill in the blank) who commit these heinous crimes, I live in Bel Aire, KS (just on the north side of Wichita, KS -- about 1/2 mile south of the now famous Park City, KS). All of my older children graduated from Wichita Heights. The Luthern church that BTK attended was the one that hosted all the after-school Christian activities.

Perhaps if one of my family members was tortured, abused, and killed by one of these maniacs, I might be pursuaded, but for now I still believe the death penality is a barbaric act, motivated strictly by revenge, not determent.

I respect Carl for admitting that, he is one of the few pro death penalty I have heard admit that up front.

 

Are you suggesting that it costs more to put someone to death than it does to keep them alive in prison for life? Can you point me to the source of your information?

Even if you are correct I would still prefer my tax dollars go toward an execution rather than a life long support program for a murderer. What I have a problem with is the VERY long time that normally passes between the trial and the execution. Some of these criminals spend more than 15 or 20 years on death row before finally being executed. That to me is cruel. One quick trial, one quick appeal, then straight to the execution if guilty. It's not fair to the tax payer or to the criminal to drag it out.

Pug

 

Here's one source.

I think a lot of people who use the "I don't want my tax dollars being used to feed and shelter murderers..." argument feel the same way. That seems, to me at least, to indicate that it's not really about tax dollars at all.

 

originally posted by Pug

The problem being that it is not quite that simple. CBS reported that Columbia University researchers tracked all capital convictions from 1973 to 1995, nearly 5,800 cases. They found serious errors in 68 percent

One good example is Ray Krone. Sentenced to die for the 1991 murder of a cocktail waitress in Phoenix, he was set free in 2002 after DNA evidence said the chance that Krone committed the crime is one in 1.3 quadrillion.

With one quick appeal, this man would now be dead!

Is vegence really worth it?

 

Cheaper to kill em?

A couple of observations...

Apparently, with all the various appeals, last minute stays, and various legal ramblings, the total cost to execute someone is greater than keeping them in prison for life...

If there is any doubt whatsoever as to the guilt, the execution should be stayed until that doubt is resolved! DNA testing seems to be very helpful in resolving any questions as to guilt and innocence.

It is interesting that many of the people who oppose the death penalty, have no problem with abortion on demand... It seems to me that one should at least try to be consistent in their opinions...

 

That's all the more reason why the chance of executing the wrong person is becoming slimmer and slimmer. DNA is nearly a foolproof method of determining the guilt or innocence of an individual.

Also, I don't believe the intent of the death penalty is deterrence, although deterrence may be a by-product. The death penalty, like any form of punishment is exactly that...Punishment. Every crime carries a form punishment associated with it. The severity of the punishment is determined by the seriousness of the crime.

The threat of any punishment is, in itself, a deterrent, but once a crime has been committed it's obvious the deterrent didn't work. Criminals are fined, or incarcerated, or executed for one reason...to be punished.

And, of course the criminal justice system includes vengeance. Have you ever heard the phrase "Would you like to press charges"?