Posted on 03/05/2005 11:52:03 AM PST by metalmanx2j
I have a confession to make: I am an opponent of the death penalty.
Right now I’m a quiet opponent, but if I ever believed the left would interpret “life without parole” to mean life without parole I would become a much more active and vocal opponent. I am absolutely opposed to the death penalty for juveniles, a matter I don’t have to lobby on because Illinois has long forbidden it.
Having said that, the Supreme Court’s ruling earlier this week overturning 19 state laws that allow for the execution of 16- and 17-year-olds is the shabbiest and most dangerous decision by the high court since Roe vs. Wade.
Justice Anthony Kennedy, writing for the five-man majority, says that such laws are contrary to modern “standards of decency,’ and that since 18 of the 38 states which allow for capital punishment forbid it in cases of murderers under the age of 18, the nation has reached a “consensus” against it.
Some consensus. Those 18 states constitute 36 percent of the nation at large and 47 percent of the states that allow for capital punishment. Kennedy also opines that, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.” Say what? How exactly does a Gallup Poll of foreign opinion have anything to do with American jurisprudence?
Kennedy’s opinion goes on at great length at what moral standards are and what they should be. What it lacks is almost any reference to law. Therein lies the danger. It is not the courts’ job to rule on morality.
That job belongs with the legislatures. The courts’ task is to interpret the laws the legislature writes. It has the power to overturn laws only when they are in violation of rights guaranteed by the Constitution. To the extent the court usurps legislative authority, America ceases to be a democracy and becomes an oligarchy, with nine oligarchs sitting in Washington.
Thomas Jefferson’s greatest worry over the Constitution concerned the way the judiciary was structured. He fretted that, since the courts were not accountable to the nation at large, human nature being what it was, the judiciary was likely to eventually assume legislative authority it does not have. When that time came, he predicted the nation would have to enact a corrective to rein in the judges or lose the capacity for self-government.
I worked the last election cycle for a marvelous candidate who proposed just such a corrective. Andrea Zinga, the Republican candidate for Congress in Illinois’ 17th District proposed what she called the “Checks and Balances Restoration Amendment.” It read:
Upon application by a simple majority of the House of Representative to the Senate, the upper chamber must review any decision by the Supreme Court or any other federal court where appeal has been made to the Supreme Court and denied or given no response within six months after such appeal was filed, or by any state or local court when such decision would bind the whole nation. Once such application has been properly made by the House of Representatives and duly recorded with the Senate, the Senate must schedule the review no later than in the next session in which they sit. If three-fifths of the Senate votes to overturn the ruling, then the ruling is immediately rescinded and the Senate’s decision is final. If less than three-fifths of the Senate votes to overturn, the Court’s ruling is upheld.
Zinga’s proposal was largely and understandably ignored by the media, which is usually enthused by the courts’ recent penchant for overturning the considered decisions of the people and their elected representatives. Wouldn’t want the folksies getting any uppity ideas about governing themselves.
The Chicago Tribune suggested it was a wacky idea. But when has the Tribune’s editorial board had either a deep or original thing to say in the last three decades? (Well, I must confess that Eric Zorn, who I often find smug and frequently disagree with, nonetheless, also often expresses deep and original thoughts. But it’s pretty barren when you get past him.)
The answer is not to get more conservative judges on the bench, though that would certainly be a blessing. If we content ourselves with replacing their rascals with our rascals, then no issue can ever be settled.
The law will be whatever some imperious judge thinks it ought to be -institutionalizing the arbitrary power that tyrants usually have to fight for.
The answer is to make it clear to all judges that they are not philosopher kings who have the power to rule America with a stroke of their pens. Their job is to interpret the laws the legislature writes, paying close attention to authentic legislative intent, and leaving legislating to legislators. Since they won’t stick to their own turf, creating a limited authority for the people to fight back through their legislatures should create a powerful incentive for the judiciary to mind its manners.
I hope that legislators will take another look at the Zinga proposal. I would love to see the death penalty abolished, altogether. But I want to do it honestly, through the means our founders provided for us - and without attacking the principle of democracy in the process.
In his dissent on behalf of the four-man minority, Justice Antonin Scalia wrote that, in this decision, “The court…proclaims itself sole arbiter of our nation’s moral standards.”
To take a page from Illinois Senate Minority Leader Frank Watson’s playbook, the nation’s response should not just be, “No.” It should be, “Hell No!”
The 19 states should tell the supremes to go to hell and defy this ruling. That would put Bush in the hot seat. Does he use the executive branch to enforce the ruling, or not.
Sorry but I don't think the strict reading of the Constitution as somehow being "RASCAL". That being said CONGRESS has to do something to reign in the real RASCALS who are systematically imposing their own beliefs and INTERNATIONAL norms while IGNORING our Constitution, in their decisions.
The Supreme Mullahs need only a turban to be welcomed in Iran.
Let's look at the term "cruel and unusual"
IN THE CONTEXT it represented,
Colonial punishment could be "cruel" in the true sense of the word.
Tongue head cages as a punishment for gossip, in England Disemboweling, castration, burning at the stake, Putting heavy rocks on someones chest until their chest collapsed
These punishments were CRUEL and UNUSUAL,
http://www.history.org/Foundation/journal/spring03/branks.cfm
another one, nailing an ear to a peice of wood
You got my vote- but don't hold your breath for it to happen.
But Madison and the writers of the Constitution SAW them as CRUEL,
and BANNED THEM
"I am an opponent of the death penalty. Right now I’m a quiet opponent, but if I ever believed the left would interpret “life without parole” to mean life without parole I would become a much more active and vocal opponent."
What is this person saying here? It sounds pretty pro-criminal to me. If he really thought people would be locked up for life, he'd be even more opposed to the DP? Something does not compute here.
Straighten me out if I am missing something. Otherwise, sign me,
Confused
That proposed Amendment is news to me and worth a good hard look.
You should review late 18th century (post 1789) and early 19th century judicial punishments to determine how much has changed. Yes, the definition of "cruel and unusual" has been evolving for millennia. In the time of the punishments you cited, throwing convicts to the lions or trampling them with elephants was considered "cruel and unusual"; there was once a time when they were quite common and deemed great entertainment to boot.
The basic point that I'm getting at, as I've raised it in a couple other threads, is that the 8th Amendment seems to me as the only truly subjective part of the Constitution. No one has yet provided any objective standard for evaluating a punishment as "cruel and unusual" - if you have one, I'd be interested to see it.
I haven't decided whether juvenile capital punishment fits the criteria (i.e., whether I think this ruling is defensible) but I'm quite sure I disagree with the notion that "cruel and unusual" is a concept fixed to 1789 sensibilities. In 1789 vicious whippings in the public square were a common punishment; would that be "cruel and unusual" today? Many of those statutes are still on the books, even though unenforced.
Ping
"Cruel and unusual" meant befitting the crime. It would be cruel and unusual to give a man 30 years for stealing a crust of bread is a good example. Life for life has never been considered cruel and unusual.
Cruel is also the intent. Do we punish someone for justice, or for kicks in seeing that person suffer.
The NM state legislature did away with the death penalty the very next day (not related). I support the death penalty, and I'm not happy about it. Not having one is an encouragement to the criminals. IMO
I'm 75 years old and have witnessed the capital punishment
laws in this nation vacillate back and forth for decades.
I, myself, have twisted in the wind with this problem.
Now, I have to say I've finally become convinced that
we actually need the Death Sentence in order to minimize
some of the most blatant crimes running rampant in our
society. Just the number of children abductions/slaughters
taking place these days is sufficient to support such a
necessity.
I used to think that criminals were themselves
victims of their social settings. I taught school for 30+
years and saw the anti-social behavior of some of my
students who were caught in the web of family chaos. I
even had a student who sold the very gun to a second
student which three days later he used it to murder
his own parents and rape his mother's corpse. I had
another student who had been in juvenile detention
after raping a girl at his previous school. It was
more than a bit disconcerting to realize the courts
were releasing such delinquents into our public schools.
One can only wonder just what might have evolved from
a Columbine High School judicial hearing.
Suffice it to say, there are criminal minds out there
in our society. We cannot continue to incarcerate these aberrations of the human spirit, even rewarding them with
their daily sustenance and conveniences.
I deem myself a religious person; and I know God's
restrictions on casting stones and the slaughter of
innocents. But we have pernicious deviants lurking
in our society. We must establish measures to protect
ourselves and our loved ones from malevolent harm these
anti-social individuals are determined to inflict upon
us.
When I was younger, I tried dreaming up another alternative to the Death Penalty. The only valid one I could create was based on modern science and the drug industry. It
went like this: shoot into the accused, a sufficient amount
of whatever drug could be devised to totally annihilate
his persona. Give him no past memory of his previous life
or the persons he knew. Subsequently, provide a new
personality for him and some necessary but artificial
memories. (Yes, it does sound like a combo of cloning
and robotics!) Then send him off, but watch him from
a distance through local law enforcement (another very
expensive additive).
Well, I'm no longer the sci-fi buff nor the idealistic
young believer. If there is a pre-natal chemical imbalance in the brain which led to his violent actions, then there's no assurance that correcting the memory patterns would even be sufficient. And what do you do if he reverts to type?
I apologize for the ramble!
Yes, executing one of these "children" now would certainly move things along.
The check on a USSC ruling which has no basis and is therefore void is defiance. The time may be now.
Congress can do that. The whole Congress can strip the courts of the parts of their jurisdiction that they cannot handle competently. The Senate can do its part by confirming as new Justices and judges only those who will "preserve and protect" the Constitution.
It is a lesson of history that no revolt can succeed until a minimum, critical mass has been reached. I hope that the 5-4 Simmons decision finally marks the point where the Court has jumped the shark.
Congressman Billybob
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