Step in the right direction

tsk, tsk. little fauss, little fauss...

Don't you see that the problem is in the TEXT and not in the COURT?

The Court system decides cases because it is REQUIRED to decide cases. The Supreme Court can duck the issue for a while, to be sure, but all that means is that the Courts of Appeal are the final word.

So that means the Court must do the best it can with the resources at its disposal.

What you are REALLY saying is that you don't like the decision and that you think it is wrong. That is not the same thing as saying the Court had no power or obligation to decide the case!

Very well. Courts do not decide on philosophical grounds. Courts decide cases by applying the LAW to teh FACTS as the Court finds it. But THIS provision, this right enshrined in the fundamental law of our nation, this right that CANNOT be diminished by any Congress or state Legislature has to be DEFINED to have any meaning at all. And, because it IS a constitutional right, that definition cannot be entrusted to any branch of government EXCEPT the Court.

If you don't like the decision, work to amend the constitution to include a definition of "cruel and unusual" that excludes the death penalty.

Until then, see if you can actually punch a hole in my analysis instead of merely complaining about the result!

 

I'll tsk tsk you back, my dear friend, I actually AGREE with the decision in terms of PUBLIC POLICY; I don't want the death penalty applied to minors. But that is my personal belief system, and the only manner in which it has a right to be activated into law is through the legislative branch.

If a miracle occurs and some future president--or this president--overlooks my mediocre record and appoints me to the U.S. Supreme Court, I'll be bound to uphold the Constitution, not my personal preferences.

That you would even entertain the thought that attempts at discerning "new community standards" is a valid basis for a Supreme Court decision sends shivers up my spine--Et tu, Brute? I feel as if I'm Donald Sutherland in "Invasion of the Body Snatchers"--come now, please tell me they haven't gotten to you, my juridicial brother?

Why, we even criticize politicians for sticking their fingers into the air to gauge public opinion, Bill Clinton was--unjustifiably, I think--savaged for it. And now we're prepared to all but institutionalize such public opinion-based decision making for the defenders of our Constitution? Can't you see the implications?

As for me amending the Constitution to change the definition of "cruel and unusual", I don't want to, they've defined it according to my PERSONAL preference with this latest decision, I see no need.

But can't you see the bigger issue? The genie that's been unleashed from the bottle? Now I don't need a Constitutional amendment, even should I have a change of heart, all I need is a switch of a few members in the Supreme Court--which will likely happen over the next few years--and all these members will need to do is what the present court did: ignore 200 years of precedent and somehow discover a "new evolution of community standards" in favor of the death penatly for John Lee Malvo and the like as justification for overturning the present holding.

Don't you see what I'm gettin at?

When our courts become just another legislative body--which they do when we allow them to, as they did in the latest decision, assign meanings to text far afield of anything intended by the drafters--that we've lost our protection, in a sense lost our Constitution? If it means whatever a handful of lawyers think it should mean, it means nothing but empty words; it's no different than a piece of legislation to be repealed and discareded by the succeeding legislature.

 

I'll tsk tsk you back, my dear friend, I actually AGREE with the decision in terms of PUBLIC POLICY; I don't want the death penalty applied to minors. But that is my personal belief system, and the only manner in which it has a right to be activated into law is through the legislative branch.

If a miracle occurs and some future president--or this president--overlooks my mediocre record and appoints me to the U.S. Supreme Court, I'll be bound to uphold the Constitution, not my personal preferences.

That you would even entertain the thought that attempts at discerning "new community standards" is a valid basis for a Supreme Court decision sends shivers up my spine--Et tu, Brute? I feel as if I'm Donald Sutherland in "Invasion of the Body Snatchers"--come now, please tell me they haven't gotten to you, my juridicial brother?

Why, we even criticize politicians for sticking their fingers into the air to gauge public opinion, Bill Clinton was--unjustifiably, I think--savaged for it. And now we're prepared to all but institutionalize such public opinion-based decision making for the defenders of our Constitution? Can't you see the implications?

As for me amending the Constitution to change the definition of "cruel and unusual", I don't want to, they've defined it according to my PERSONAL preference with this latest decision, I see no need.

But can't you see the bigger issue? The genie that's been unleashed from the bottle? Now I don't need a Constitutional amendment, even should I have a change of heart, all I need is a switch of a few members in the Supreme Court--which will likely happen over the next few years--and all these members will need to do is what the present court did: ignore 200 years of precedent and somehow discover a "new evolution of community standards" in favor of the death penatly for John Lee Malvo and the like as justification for overturning the present holding.

Don't you see what I'm gettin at?

When our courts become just another legislative body--which they do when we allow them to, as they did in the latest decision, assign meanings to text far afield of anything intended by the drafters--that we've lost our protection, in a sense lost our Constitution? If it means whatever a handful of lawyers think it should mean, it means nothing but empty words; it's no different than a piece of legislation to be repealed and discarded by the succeeding legislature.

 

I'll tsk tsk you back, my dear friend, I actually AGREE with the decision in terms of PUBLIC POLICY; I don't want the death penalty applied to minors. But that is my personal belief system, and the only manner in which it has a right to be activated into law is through the legislative branch.

But if a miracle occurs and some future president--or this president--overlooks my mediocre record and appoints me to the U.S. Supreme Court, I'll be bound to uphold the Constitution, as it meant to those who drafted it, not my personal preferences or evolving societal standards or The Great Social Contract or any such nonsense.

Haven't punched holes in your argument? I've driven a bus through it! You haven't even addressed a point I've made; again, I put it to you: what makes the discernment of "evolving community standards" a legitimate goal of the Supreme Court in deciding upon what is Constitutional? What text do you find in Article 3 that leads you to believe such public policy making is legitimate? For that matter, what about Marbury v. madison would lead you to believe that citing foreign courts and social science research should have anything whatever to do with the analysis of our Constitution?

That you would even entertain the thought that attempts at discerning "new community standards" is a valid basis for a Supreme Court decision sends shivers up my spine--Et tu, Brute? I feel as if I'm Donald Sutherland in "Invasion of the Body Snatchers"--come now, please tell me they haven't gotten to you, my juridicial brother?

Why, we even criticize politicians for sticking their fingers into the air to gauge public opinion, Bill Clinton was--unjustifiably, I think--savaged for it. And now we're prepared to all but institutionalize such public opinion-based decision making for the defenders of our Constitution? Can't you see the implications?

As for me amending the Constitution to change the definition of "cruel and unusual", I don't want to, they've defined it according to my PERSONAL preference with this latest decision, I see no need.

But can't you see the bigger issue? The genie that's been unleashed from the bottle? Now I don't need a Constitutional amendment, even should I have a change of heart, all I need is a switch of a few members in the Supreme Court--which will likely happen over the next few years--and all these members will need to do is what the present court did: ignore 200 years of precedent and somehow discover a "new evolution of community standards" in favor of the death penatly for John Lee Malvo and the like as justification for overturning the present holding.

Don't you see what I'm getting at?

When our courts become just another legislative body--which they do when we allow them to, as they did in the latest decision, assign meanings to text far afield of anything intended by the drafters--that we've lost our protection, in a sense lost our Constitution? If it means whatever a handful of lawyers think it should mean, it means nothing but empty words; it's no different than a piece of legislation to be repealed and discarded by the succeeding legislature.

 

Wow! SIX "tsk tsk"s!

One question, little fauss: If the case came to you as Judge, how would you have defined "cruel and unusual punishment" and why?

 

You think maybe I was a tad passionate with that last post, spittle flying, fingers shaking as I stuttered with them and inadvertently banged out two posts?

I would decide "cruel and unusual" per the standards that were pretty obviously intended, just as, when examining the intent of a contract as a judge, I would make reference to the plain language first; then, if that's not definitive, be guided by other bits of parol evidence that would bring light to it, such as: industry standards at the time of formation, custom at the time of formation, et. al.

When we look at a contract--and in a real sense the Articles of Confederation and later the Constitution were a contract between colonies to establish a national form of government and set ground rules for a new federalism--we look not to what we'd like it to be, but what it meant as between the parties who formed it. Otherwise, you would turn contract law on its head and would probably do injury to the economy--people would be less likely to enter into contractual relationships if they knew they could be eviscerated by judges on a whim rather than valid legal principles.

Why can we not apply this common sense approach to the Constitution? Why should reference to the European Civil Law or the research of some social scientist or whatever some court in Kamchatka says hold prededence over what the Constitution actually says and what it obviously was meant to say? What right have Suprmeme Court justices to cite such nonsense in determinations, not of what is legitimate public policy--a job, if ever there were one, exclusively for the legislature and the executive--but of constitutionality?

We can't be positive what exactly is meant by "cruel and unusual", but we can almost certainly say what it does not mean. And since capital punishment was practiced regularly without constitutional challenge upon virtually all age groups in the colonies pre and post-1787; since forms of punishment quite vile even by our Founding Fathers' standards were being practiced around the world and in England at that time--such as state-sanctioned dismemberment of political or religious opponents and various other forms of torture I'd rather not mention--it seems obvious that their definition of "cruel and unusual" was most certainly meant to include the latter, but most certainly not meant to include the former.

I doubt that a justice on the present court really thinks, in their heart of hearts, that this is anything approaching what was meant by the Eighth Amendment. I agree with their public policy vis-a-vis capital punishment; I hate what they and their forefathers have done to politicize the one institution that should be kept free from politics; why do you think the Founding fathers gave them lifetime appointments if it was not to insulate them from popular opinion and societal evolution, rather than plunge them into the middle of it?

In brotherly love (hopefully not of the Jacob-Esau, Isaac-Ishmael variety) I am,

Your friend little fauss (aka Mike)

 

So for YOU, "cruel and unusual" would mean "unacceptable in 1789".

Yes, you can legitimately argue that. At least you aren't handing your judicial responsibility over to the legislature, which, as I said before, cannot be done in our system of separated powers.

But now return to my Scalia scenerio. Is it really possible, let alone desireable, to "freeze" the 'plain meaning' of the words when the society and its customs and attitudes are subject to constant change?

The words would thereby lose their "plain meaning" with the passage of time. They would mean something that might have been plain back then but is obscure now. The language itself changes, you know.

Also, human knowledge surely increases concerning what is hurtful and damaging. Something not thought to be a serious or cruel punishment in 1789 might well be understood to be exactly that in 2005. We no longer allow parents to horse whip their children, do we? We would not like the idea of placing a woman in the stocks to be spat upon from dawn to dusk, would we?

And certainly there are punishments available to our government now that weren't even known in 1789. Would you declare that there is no constitutional protection against electric shock in 2005 just because there was no such torture in 1789? Of course not.

The constitution must be applied in the light of the circumstances obtaining at the time of application. Otherwise it runs the real risk of becoming irrelevant, as dead a letter as Code of Hammurabi.

This is my closing argument, I think. I have made every point I can think of. Let me just say that I personally consider "strict constructionism" to be either foolish or fraudulent for the reasons expressed in this thread.

 

And this will be my final salvo as well.

I think a document should mean what it meant when it was written. This is the way we treat contracts, this is the way we deal with treaties, this is the way we should treat everything--that is, if we're interested in the law rather than lawlessness.

It's not that difficult to discern that what the Supreme Court did is both foolish and fraudulent from a jurisprudential point-of-view, social policy notwithstanding.

The judicial role is to interpret the Constitution, not to impose their modernist views upon it or try to discern some evolving community standards which are probably more difficult to understand that the plain language and notes surrounding the Constitutional Convention and the drafting of the Bill of Rights.

I believe in rule by legislatures, not unelected judges; i think what they've done is an outrage, and one day, it may well be that a court will come along with the same activist bent as the present one but with a philosophy more akin to the Lochner court or the Plessy court, and when they decide to jettison precedent and enact whatever they darn well please into law, leaving us with no legislature, no president, no vehicle short of amendment to address it, you ox will be gored as will mine from a social policy perspective.

And at that point, when that future Scalia or McReynolds or whomever authors that damnable opinion that eviscerates a minority's rights because the justice saw, in their mind's eye, some "evolving society standard" that supported it, I hope you'll join me in decrying judicial activism and rule by the unelected.

Obviously, brother, I feel passionately about this!

 

We'll let the jury decide.

On a related note, are you or were you admitted? I saw from another post that you studied law.

 

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

Now there is something I can agree with! Although I agree with the death penalty I would gladly see it abolished if abortion was also abolished. No argument here.

Pug

 

Minnesota, you remember our conversation about Mr. Ventura, don't you?

By the way, a pleasure to volley with you on these subjects. I don't agree with your opinion on this one matter--I think that's obvious--but I enjoy the back-and-forth.

 

The problem with your analysis is that you overlook the fact that, in order for a punishment to be unconstitutional, it must be BOTH cruel AND unusual. Cruel punishments are constitutional, provided they are the usual ones for that particular crime. Unusual punishments are also constitutional, provided they are not too cruel.

Evolving community standards, so-called, are nothing short of an excuse for unelected judges to starting making the laws. If a judge wishes to make the law, let him/her run for Congress and run the risk of being fired for his/her stupidity! If he/she wishes to remain on the bench, then let him/her rule on whether the Constitution allows such a law to be made, not whether he/she likes the law.

 

Seems to me that hanging by the neck until dead would not be seen as "cruel and unusual" by the standards of the writers of the Constitution. However, today it might be - given that there are much more scientific and "clean" ways to execute someone.

However, I do think that the writers of the Constitution would find hooking up electrodes to human genitals and torturing the life out of someone over hours, accompanied by sleep deprivation, would be seen as "cruel and unusual". They would also see burning at the stake (as native Americans were so apt to do to early settlers on the frontier) as "cruel and unusual".

I wonder if we took a poll of the American public today how many would find either of the previous two "cruel and unusual" punishments out of line should we capture Osama bin Ladin? My own sense is that we'd have a long line to connect the electrodes or light the first faggot.....

How far we've slipped from our heritage!

 

Cruel in relation to what?

Let us suppose that I were to go to law school, get my JD degree, and get elected or appointed to a judgeship. Let us suppose that you come into my court room and get convicted of, say, rape. With all due fairness, the same applies if you're the judge and I'm the convict.

According to a letter to the editor reprinted in the book Intimate Intrusions: Women's Experience of Male Violence (London, 1982), it seems that, during a rape, the woman's body goes into a state of shock, the vagina does not properly lubricate and it contracts. Consequently, upon penetration, the clitoris is torn off and the vagina is ripped quite badly with each stroke. Since the vaginal tearing never quite heals properly, that woman will find any future sex quite painful, not to mention quite boring since she can no longer orgasm without a clitoris. In that case, why should it be too cruel to sentence the convict to hang by the testicles until deceased? The entire principle of the judicial system is that those who wantonly flaunt the fact that they have absolutely no respect for the rights of others should not expect to have any rights themselves.

 

But there is no constitutional guarantee that a rapist won't rape. The only constitutional guarantee is that the GOVERNMENT won't rape.

 

But there is a constitutional guarantee that the legislatures may (if they so choose) write laws against rape, the executive powers may (if they so choose) sign such laws, and judges must pass sentence upon those duly convicted. The prohibition against cruel and unusual punishment means only that the punishment should fit the crime. An eye for an eye, a tooth for a tooth, a life for a life, and mutiliated genitalia for mutilated genitalia. Or, put another way, if you can't do the time, then don't do the crime.

 

Um. Please don't misquote Torah to support your bloodthirst.

An eye for an eye does not mean, and never HAS meant, that you gouge out the eye of one who gouged out yours. It is a measure of monetary damages, dealt with extensively in Talmud. It looks a lot like our modern approach to personal injury.

The tort feasor pays the difference between the value of the damaged and undamaged person as if he were sold as a slave. In our case, we look at things like lost wages.

The measure of damages existed primarily to AVOID "a life for an eye" as a self-help device. One of the Noahide Laws, binding on Jew and non Jew alike is to set up courts to resolve disputes.

As for the Supreme Court, the one thing it may NOT do is defer to a legislature when deciding the contours of a constitutional right. To do so is to render the right meaningless. As a political scientist, you must surely understand that the Bill of Rights came into being to restrict the power of Congress to legislate certain things.