I dislike the practice of looking at foreign law to decide cases.
However, it seems like it is reasonable to look at global customs to decide what should be considered cruel or unusual punishment.
global customs
Like the Naploeonic Code of France?
Wouldn't it be more reasonable to look at what was considered the norm (and therefore presumably not creuel and unusual) in the Founders' day? I mean, after all, that's what will tell us what they meant by the phrase.
No, looking at other countries law is not what a judge should do.One of these judges pointed out that was what Thomas Jefferson did. I say yes, he was a law maker not a judge!
So who gets to decide what is REASONABLE? Can the SCOTUS look to the Religion of Islam to decide whether or not the 10 commandments can be displayed in public areas? How about looking to Saudia Arabia and most of the Middle East to decide women's rights?
One could go on and on and on, but to source foriegn law, customs and practices CHERRY PICKING STYLE is ridiculous and not adhering to the US CONSTITUTION which is the only SOURCE they should use.
If we are going to have the death penalty, and I think we should, then use it. Cruel and unusual punishment is what the murderers do to their victims!
This is another ditch to avoid. If "radical" Islam becomes the majority of the world...does it become "normal" to shoot women in the head publically for not being faithful? Or stone folks to death? What about countries where it is NOW normal for thieves to have their hands chopped off? Should we consider that?
We(our Founders, THIS country) fought for independence for many reasons and against more than one enemy to get away from bad law then. Why should we even glance at their law(or lack of it) now?
No, no, no! We have a Constitution and the Rule of Law. At least we used to!
No, no, no! We have a Constitution and the Rule of Law. At least we used to!
"However, it seems like it is reasonable to look at global customs to decide what should be considered cruel or unusual punishment."
...as opposed to the Bible's clear requirements for punishments for murderers, rapists and child molesters?
You're too tolerant here, of the wrong things. The UN does not accept the Bible as a source document while America does...did............
Of all the stupid a$$ ideas.....What, exactly, in Hell are you thinking?
From what I have read, what these guys did to their victims was pretty darned cruel and unusual, too, BUT where is the descision that says they aren't really dead and disfigured any more?
"However, it seems like it is reasonable to look at global customs to decide what should be considered cruel or unusual punishment."
The question is - who should decide what is cruel and unusual punishment? The Constitution says that any powers not spelled out in the Constitution for the Federal government should be left to the states. It doesn't say anything about leaving the definition of cruel and unusual punishment to the Supreme Court.
If you believe in the Republic and the Constitution, then this decision should be left to the people in each state, not to five unelected lawyers on the Supreme Court. If the people in a state decide that they want to consider customs in other countries, then that is up to them.
However, it seems like it is reasonable to look at global customs to decide what should be considered cruel or unusual punishment.
I'm pretty much with you on this.
I personally agree more with the two dissents than with the majority opinion, but -- if I recall correctly -- there is nothing in the Constitution that binds the Supreme Court to only base its decisions on the hard wording of the Constitution or to the standards which prevailed at the time.
Even if there were, "cruel and unusual punishment" is in there. And that requires a reference to what is meant by that phrase, which is something which changes with time. In that context, I think the majority's decision is defensible.
Another point which I don't think has been brought up in this thread is that even the Supreme Court's authority to interpret the Constitution in the first place is open to question. I believe it took that on in Marbury v. Madison.
We take that for granted anymore, but I think the framers left a whole lot of gray area for good reason. Anthony Kennedy drove a cart through that gray area yesterday, but he was well within his authority to do so.
All that said, I think if we have capital punishment for anyone, my opinion is more in line with Sandra Day O'Connor's and Anton Scalia's. To whom it applies should be left to the states.
I have mixed feelings about capital punishment myself, but Malvo and that other punk who killed the girl? Why warehouse them for the next 60 years?
The idea of 'cruel and unusual' depends on the values of a given society and culture. What matters is what is considered 'cruel and unusual' in this society, not in Batswana, Nepal, Belgium, etc. Nor would I expect other coutries to create their legal definitions base on what our laws happen to be at the time.