Comments on: Decency evolves

By: Robert

Robert — Sat, 28 Jun 2008 03:09:05 +0000

I should note that even the people who I tend to agree with on the court do the same thing sometimes, Jeremy. It is a terrible temptation, and given that the Supremes are the court of last resort and have no body that can (realistically) check a bad/activist decision, it is frankly amazing that there aren’t more bad decisions.

By: Jeremy Pierce

Jeremy Pierce — Sat, 28 Jun 2008 00:54:11 +0000

What is clear is that the bulk of Kennedy’s opinion amounts to policy arguments. I happen to think in this case that a number of those policy arguments are pretty good, enough for me to have taken a decisive stance that the death penalty in these cases is a bad idea. But being a bad idea as a policy is not grounds for thinking it’s unconstitutional. The five justices who were in the majority on this case regularly give policy arguments when supposedly interpreting the Constitution, and it’s basically an abandonment of their job. They’re complete failures as judges interpreting the law if they just set the law to be whatever they’d prefer it to be. This is so whether they’ve got good or bad views. It’s not the job of a judge to change laws they don’t like the way the legislative branch does, but that’s exactly what this opinion did.

By: Robert

Robert — Sat, 28 Jun 2008 00:42:47 +0000

Sure, they invite interpretation and they can be open to change, as society evolves. And you are correct; amendment is not the only way for society to express its evolving view.

Which is more representative of the evolution of society? The democratically elected legislature composed of tens of thousands of legislators, or nine people appointed for life by a unitary executive? I think the answer to that is obvious.

It is the court’s job to interpret the law. It is not their job to substitute their understanding of evolving morality for the legislature - which is both far better equipped (the wisdom of crowds) and far better in tune with the actual evolution of the society’s thought, as opposed to what people like Hugo (or like me) wish the evolution of thought was.

By: Lynn Gazis-Sax

Lynn Gazis-Sax — Fri, 27 Jun 2008 23:40:53 +0000

If the people who wrote the constitution wanted exactly their current standard of “cruel and unusual” set in place for all time - or at least to require an explicit amendment for any shift in interpretation of the words - surely they’d have used words less general than “cruel and unusual”? Words like “cruel and unusual” invite interpretation. “Cruel and unusual as Madison would have understood them” actually seems quite a weird way of interpreting the words, and if you want to convince me that the Founding Fathers meant any such weird thing, you’d better show me some very explicit statement in their writings for such a reading. I’m fairly sure that nowhere in the Federalist/anti-Federalist debates did anyone discuss binding future generations to the current understanding of “cruel and unusual,” unless they went through the lengthy and arduous process of passing an amendment.

By: Robert

Robert — Fri, 27 Jun 2008 23:30:49 +0000

Why? His moral opinions are irrelevant. If he is administering the Constitution, then what is relevant is what the people who wrote the Constitution thought cruel and unusual means.

If there is a new understanding of cruel and unusual, then there is a legitimate, tested, and 100% functional way to put that information into the Constitution - amend it.

By: Antigone

Antigone — Fri, 27 Jun 2008 23:03:49 +0000

I think his moral opinions start coming in when he’s trying to decide what “cruel and unusual” means.

By: Robert

Robert — Fri, 27 Jun 2008 19:42:55 +0000

Surely. But their moral objections are not found in the Constitution itself. Saying “you cannot have the death penalty because the Constitution forbids it, and here is my rational articulation of why” is an entirely different matter than “you cannot have the death penalty because I find it morally problematic.” That was Scalia’s point.

The legal opinions of Justice Kennedy should have infinitely more weight than mine. His moral opinions should have no weight at all.

By: Richard Aubrey

Richard Aubrey — Fri, 27 Jun 2008 18:53:41 +0000

They are not, as one justice once said, final because they are infallible. They are infallible because they are final.
Sort of like the Pope speaking ex cathedra.

By: Antigone

Antigone — Fri, 27 Jun 2008 18:00:51 +0000

Robert-

They are the Supreme Court Justices. Their job is to interpret the Constitution. Theoritically, they were choosen to do so because they have training and education in the law. The long and short of it is their opinnions ARE more important than yours or mine.

By: Robert

Robert — Fri, 27 Jun 2008 13:39:51 +0000

Scalia has said nothing of the sort; your assertion is a gross mischaracterization of Scalia’s views. He has noted a correlation between belief in an afterlife and an acceptance of capital punishment.

Nor does he believe it unacceptable to be opposed to capital punishment; he simply thinks that judges unable to accept that the democratic process has resulted in capital punishment cannot do their jobs properly.

And the Church does not excommunicate people for “insulting” the pope. You seem to have some totalitarian fantasy life going on there; better get it looked at before it metastasizes and you start spouting economic theories that were dubious at their inception and then spent a century having the stuffing beaten out of them.

Oops, too late.