"The death penalty is not a proportional punishment for the rape of a child"

[UtahDan]

Originally Posted by Tex

If we could return to the issue here ...

Upon reflection, this revelation really illustrates my objection to this ruling. Here we have Congress--the body of the people, mind you, and as representative of national mood as any vehicle possibly could be--expressing their will on this issue in the form of the UMCJ, and the Court completely ignored it! And not only the majority, but the minority missed it as well.

It is near impossible for a single judge--or 5 or 9 of them--to properly and fairly gauge "national consensus" nor "evolving standards of decency" on a matter like this. What this amounts to nothing more than these justices inserting their personal opinions into the law.

The gun ban in DC is pretty popular in DC. I wonder how 5 of the justices missed the will of the people on that one. If you think the job of the SCOTUS is to reflect the will of the people you fundamentally misunderstand their function. Segregated schools were so popular that some school systems in Virginia closed their doors for over a decade rather than integrate after Brown v. Board of Education. The clearly missed the will of the people on that one too.

EDIT: I do of course understand that part of the analysis here was to gauge consensus and decency, but the point remains that the flame of public opinion as Jefferson called it should not rule the courts. They should do what they think is right.

[Tex]

Originally Posted by UtahDan

The gun ban in DC is pretty popular in DC. I wonder how 5 of the justices missed the will of the people on that one. If you think the job of the SCOTUS is to reflect the will of the people you fundamentally misunderstand their function. Segregated schools were so popular that some school systems in Virginia closed their doors for over a decade rather than integrate after Brown v. Board of Education. The clearly missed the will of the people on that one too.

EDIT: I do of course understand that part of the analysis here was to gauge consensus and decency, but the point remains that the flame of public opinion as Jefferson called it should not rule the courts. They should do what they think is right.

Sorry, are you agreeing or disagreeing with me? Because I'm on your side on this one. In fact, I was "this" close to citing Brown as an example of going against "national consensus."

[UtahDan]

Originally Posted by Tex

Sorry, are you agreeing or disagreeing with me? Because I'm on your side on this one. In fact, I was "this" close to citing Brown as an example of going against "national consensus."

Would you like for me to chew your food for you too? Sheesh.

[Tex]

Originally Posted by UtahDan

Would you like for me to chew your food for you too? Sheesh.

Only if it's locusts and wild honey.

[UtahDan]

Originally Posted by Tex

Only if it's locusts and wild honey.

There are one or two lone men crying repentance in the wilderness on this board, but it ain't you or me.

[Cali Coug]

Originally Posted by Tex

Not interested in discussing that at the moment ... more interested in discussing the actual decision.

No, you are criticizing the decision for their reasoning without providing any reasoning that is superior (not that I am holding my breath).

Evidentiary standards are irrelevant. The justices are trying to determine "national consensus," thus what Congress has had to say on it--no matter the jurisdiction--is important.

Saying 44 states disagree is a little inaccurate, unless you know of specific measures that have either failed or been overturned/repealed. It's more accurate to say 44 states are silent on the matter.

It isn't inaccurate. 44 states have had over 200 years to pass a law that extends the death penalty to rapists. In that time period, they have addressed a lot of other issues (including some pretty banal issues). At the end of the day, they have decided not to extend the death penalty to rapists. Their silence speaks volumes.

If you choose to attack me on issues about which I have not opined, don't get all hot-and-bothered when I remind you I have not opined on them (and/or decline to do so). It's not my fault you can't control yourself.

lol! You have perfected the Tex Routine.

My point is, I don't think the court should be in the business of gauging consensus at all. They should rule on the law, not on what (in their judgment) is the most popular.

Of course, if you really want to go that route, it would not be hard to review decisions the court made that went against "national consensus."

In this matter, gauging national consensus IS a matter of law. The justices are asked to opine on what constitutes "cruel and unusual" punishment. Those phrases are moving targets ("unusual" by definition is a moving target). You keep harping on the decision by the Court to attempt to gauge national consensus (amusingly even saying it requires "unanimity" to show a consensus) without demonstrating what the Court SHOULD use to define those terms as a matter of law.

[Cali Coug]

Originally Posted by Tex

Sorry, are you agreeing or disagreeing with me? Because I'm on your side on this one. In fact, I was "this" close to citing Brown as an example of going against "national consensus."

I am actually a bit amazed at how far you have missed the mark. Nobody is arguing that in each case the Court should go by "national consensus." I am arguing that for purposes of defining "cruel and unusual" for the 8th Amendment, the Court must gauge national consensus. Words such as "unusual" have no meaning if you can't gauge society's customs and beliefs with respect to the activity in question. "Cruel" is also a relative term.

The Court frequently must overturn "national consensus," but it is much harder to see how that is possible with something like the 8th Amendment.

[Tex]

Originally Posted by Cali Coug

No, you are criticizing the decision for their reasoning without providing any reasoning that is superior (not that I am holding my breath).

We can get into it later. You continue to claim to have read the dissent, but I don't see you offering any criticisms of it.

Originally Posted by Cali Coug

It isn't inaccurate. 44 states have had over 200 years to pass a law that extends the death penalty to rapists. In that time period, they have addressed a lot of other issues (including some pretty banal issues). At the end of the day, they have decided not to extend the death penalty to rapists. Their silence speaks volumes.

Who says you (or some SCOTUS judge) gets to set the artificial timelines? 10 years ago there were NO state laws on this issue. Now there are (were) 6. Who knows but if SCOTUS had left it alone, there could've been 20 more in the next 10 years. Or maybe all 6 would've changed their minds?

The point is, it should be left to legislatures to decide. Not for the Supremes to say, "Well, you've had long enough."

Originally Posted by Cali Coug

In this matter, gauging national consensus IS a matter of law. The justices are asked to opine on what constitutes "cruel and unusual" punishment. Those phrases are moving targets ("unusual" by definition is a moving target). You keep harping on the decision by the Court to attempt to gauge national consensus (amusingly even saying it requires "unanimity" to show a consensus) without demonstrating what the Court SHOULD use to define those terms as a matter of law.

As I said earlier, we can discuss alternatives later. I don't have to have a genius silver bullet to find problems with the ruling as it is.

Originally Posted by Cali Coug

I am actually a bit amazed at how far you have missed the mark. Nobody is arguing that in each case the Court should go by "national consensus." I am arguing that for purposes of defining "cruel and unusual" for the 8th Amendment, the Court must gauge national consensus. Words such as "unusual" have no meaning if you can't gauge society's customs and beliefs with respect to the activity in question. "Cruel" is also a relative term.

The Court frequently must overturn "national consensus," but it is much harder to see how that is possible with something like the 8th Amendment.

That's just an excuse to insert the whim of fill-in-the-blank justice.

[Tex]

Originally Posted by MikeWaters

Shouldn't you be blaming the lawyers who should have brought it up?

Andy McCarthy notes that the DOJ "has confessed error for not ensuring that the Court was aware of the 2006 federal law." They are seeking a rehearing (unlikely), and apparently Louisiana gov Bobby Jindal is exploring his options.

http://bench.nationalreview.com/post...dmMzMyY2NkODg=

Originally Posted by Tex

That's just an excuse to insert the whim of fill-in-the-blank justice.

I didn't realize that Kennedy himself confesses to this, as McCarthy notes:

As Justice Kennedy put it, "objective evidence of contemporary values . . . does not end our inquiry. . . . We turn, then, to . . . our own understanding of the Constitution and the rights it secures."

That's the nub of it. The democratic choices of the people of a state, or of the country, are being brushed aside on nothing more than the say-so of five lawyers based on their "own understanding of the Constitution." For my money, it would be worth moving for rehearing simply to demonstrate that the emperor has no clothes. There is no consensus, so let's see if the five justices are actually willing to tell the people of Louisiana, much the way a parent tells a five-year-old who keeps asking why, "Because we said so."

http://corner.nationalreview.com/pos...g3NmNmMTQzYWU=

[Cali Coug]

Originally Posted by Tex

Andy McCarthy notes that the DOJ "has confessed error for not ensuring that the Court was aware of the 2006 federal law." They are seeking a rehearing (unlikely), and apparently Louisiana gov Bobby Jindal is exploring his options.

http://bench.nationalreview.com/post...dmMzMyY2NkODg=



I didn't realize that Kennedy himself confesses to this, as McCarthy notes:



http://corner.nationalreview.com/pos...g3NmNmMTQzYWU=

This same argument could be made in every single instance where the Supreme Court has overturned the laws of a state.