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The Law Is A Ass, Part I

Well, the Supreme Court has chosen to strike down Louisiana's law authorizing the death penalty for the rape of a child. I find myself of two minds on the matter.

On the one hand, I agree with their conclusion that the death penalty is probably wrong for child rapists. I say this on the most pragmatic of reasons; I think it will, in the long run, save more children's lives than it will kill.

How do I come to that conclusion? Let's look at a child rapist, standing over his victim. "If I get caught, I'll get executed for what I've already done. If I kill the kid, the penalty won't be any worse, and the kid won't be around to help them find me and testify against me." There is no incentive for the rapist to not take that final step and become a murderer, too.

That being said, I think that the Court was wrong in its striking down the law. While I think that the law was wrong-headed (but I certainly can sympathize with the sentiment behind it), I think that it is the right of the several states to shape its own laws. And that includes deciding which crimes are so heinous that they deserve the ultimate sanction.

The Court (well, at least five of the nine) have decided that "cruel and unusual" is a flexible term, one that changes and evolves and redefines itself with the times. I happen to disagree; the whole point of the Constitution is that it is not capable of changing and evolving and redefining itself. For that, we have the Amendment process.

Further, as others have noted, we already have a metric of what "the people" consider appropriate and in tune with public mores -- it's the law. Laws are passed, amended, and repealed by representatives directly elected by the public as a whole. If the people of Texas, through their duly-elected representatives, have decided that the rape of a child is worthy of the ultimate sanction -- death -- then that pretty much meets the definition of what the people want. And if the people don't agree, then they can get their representatives to change things.

Of course, there is a place for the courts in these matters. They not only have the right, but the duty to intervene in cases when the law is just plain abusive, and needs to be struck down. But this level of micromanaging -- reaching down into the states to decide which crimes are worthy of life imprisonment, and which are worthy of death.

Simply put, I don't think that the Supreme Court is the body that should be in charge of deciding which crimes are worthy of the ultimate penalty. That is, in accordance with the 10th Amendment.

And, the last time I checked, the 10th Amendment is still part of the United States Constitution -- in theory, the highest law of the land.


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Comments (30)

"...the whole point of the ... (Below threshold)

"...the whole point of the Constitution is that it is not capable of changing and evolving and redefining itself." Spot on! Of course, it's not the Constitution that "redefines itself;" it's justices and judges that do the redefining to fit their own sense of right and wrong.

My only question is ... Is ... (Below threshold)

My only question is ... Is the father of the raped child who may be charged with murder for killing the alleged rapist eligible for the death penalty?

A little "unsupervised time... (Below threshold)

A little "unsupervised time in the exercise yard" at the prison should mete out the proper sentence for any child rapist.

Kind of Darwinian, in a way.

The Constitution has a solu... (Below threshold)
Mark L:

The Constitution has a solution for this type of judicial abuse. The Legislature has the power (and the responsibility) to impeach judges that misbehave. If the House would impeach, and the Senate try and remove judges and justices that make decisions contrary to the plain wording of the Constitution. (Cruel and unusual punishment is fobidden -- not punishment "not in the best interests of crime victims or the broader society." Similarly, Judges or Justices that would put international law -- especially those aspects of international law unratified by the Senate -- ahead of the Constitution in their decisions are clearly violating their oaths to uphold and defend the Constitution.)

It won't happen, of course. Congress lacks the cojones.

The Constitution is an elaborate game of rock, paper, scissors -- with the Legislative Branch serving as a check on the Judiciary, the Judiciary serving to check the Executive, and the Executive to check the Legislative. THe system breaks down when one branch refuses to live up to its responsibilities.

Mark L, very good analogy i... (Below threshold)

Mark L, very good analogy indeed. All that needs to be said. ww

And, the last time I che... (Below threshold)

And, the last time I checked, the 10th Amendment is still part of the United States Constitution -- in theory, the highest law of the land.

There's a radio talk show host who's previously advocated the need for a "10th Amendment Commission". The reason is based upon the claim that the U.S. Congress has overstepped its power to such an extent that a complete review and overhaul is necessary. The Founding Fathers never intended for the central government to to be as powerful as it currently is and further they attempted to insure it wouldn't be. What's even more important than what they intended, is that they were right in this matter.

I wonder how much the 17th Amendment* weakened the 10th Amendment.

*Senators were intended to be representatives of the state governments, and House members were representatives of the people directly. After the 17th Amendment, state governments no longer have representation in Congress so it's easier for Congress to push legislation that steps on state's rights.

How can you say that "cruel... (Below threshold)

How can you say that "cruel and unusual" is not a time-sensitive classification? That which was cruel and unusual in the 18th century is surely different from that which is cruel and unusual today, non?

I don't think you have to accept that the Constitution is a "living document" to agree with me. I think that certain moral notions are flexible, and inflexibly so. The category of wrong actions today is certainly distinct from the category of wrong actions of yesteryear. But I'm not a legal scholar so maybe I'm just missing your point.

The selection of the next S... (Below threshold)

The selection of the next Supremes should be near the top of voters' reasons to NOT let Obama get close to having a real Presidential Seal to stand behind. My first reason against an Obama presidency is the dread of having him being CIC while my son is in a combat unit of the Army. The balance of TSC could change with one replacement. Pray it's not another liberal.

Putting someone to death fo... (Below threshold)

Putting someone to death for brutally raping an adolescent scarring her physically and mentally for life is not cruel nor unusual. Although JT makes an interesting point of molesters going for the kill now that they will die anyway, I think most molesters are cowards. The state should have the right to do what they want in this regard. ww

hyper, maybe it's because y... (Below threshold)

hyper, maybe it's because you're Canadian that you miss the point, but the point I was making is that there is a mechanism already set up for redefining what the Constitution says -- the amendment process. Since the Constitution (and Bill of Rights) were passed, we've done it seventeen times.

If people want to change it, then let them change it -- the right way. This half-assed way of simply declaring that the Constitution is a "living, evolving document" is simply lazy people rationalizing their bypassing established (and required) rules and procedures to impose their own beliefs.


I don't think we should adv... (Below threshold)

I don't think we should advocate that people be executed in part because they're cowards, Willie. Do you think child rapists enjoy themselves in prison?

Hey, twolaneflash, in regards to the safety of combat soldiers and how that relates to the SCOTUS, I assume you have in mind how detainees are treated, whether they're released when there is no evidence with which to detain them, etc....? Well, when Scalia asserted that at least 30 detainees who had been released had gone back to fight against U.S. troops, he was basing that assertion on a DoD report that has since been retracted because it isn't true. So I wouldn't worry about whether a SCOTUS judge is going to jeopardize the safety of your child. I would focus on whether they will respect people's inalienable rights (which every person is born with), and whether they will respect the Constitution. The safety of combat troops is in the hands of political and military leaders, not legal experts.

JT--again, I don't think yo... (Below threshold)

JT--again, I don't think you need to agree with me that the Constitution is a "living document" (I haven't really thought all that hard about it) to agree that general moral terminology--e.g. cruelty--is context-sensitive. Meaning, it requires interpretation.

Unless you can produce a definitive list of acts which count as cruel and unusual, applicable to all epochs, I think I'm right. And I think you're taking my claim as a stronger one than it is. "Evil", "Cruel", "Wrong", "Illegal"--categories that contain different acts and intentions today than they did in the 18th century. The point is true, perhaps trivially so.

hyper:How can you... (Below threshold)

How can you say that "cruel and unusual" is not a time-sensitive classification? That which was cruel and unusual in the 18th century is surely different from that which is cruel and unusual today, non?

How so ? Is 'cruel and unusual' not objective ? The specific instances that were 'cruel and unusual' this were such things as being drawn and quartered.

I think the ruling is being somewhat misrepresented in the media. The Amendment against 'cruel and unusual' punishment is also used as the basis for 'the punishment should be commiserate with the crime'... which I'm guessing is the more accurate representation of the basis for the decision.

I do, however, agree with JT in that the Constitution isn't a 'living document' in the sense presented. To say that the law simply changes with time on its own (or by fiat of a few judges) is not consistent with the rule of law, it's the rule of man - the man/men who decide that the the law can be changed to 'fit the times'.

So even if the definition of 'cruel and unusual' changes over a century, the process by which it should be redefined is not through the judicial system but through the legislative system.

Things can be 'objective' a... (Below threshold)

Things can be 'objective' and not universal or transcendental of epoch. It's easier to make this clear with artistic examples:

Cultural norms dictate that whether or not I like it, the Mona Lisa is a masterpiece. Now it's entirely possible (and very probable) that there are cultures here on Earth or elsewhere that would lack the interpretive framework from which to properly appreciate the Mona Lisa. Regardless of this incommensurability, for me, and those roughly in my socio-historical location, the Mona Lisa is an excellent piece of artwork independent of my personal attitudes towards it, and thus it is objectively good.

Art is easier to talk about morality, of course, because while we say with absolute certainty and correctness that (e.g.) female genital mutilation is an abhorrent practice, those who practice it believe (mistakenly) that the practice is morally correct (and even morally compulsory). It is for reasons like this that we can comfortably assert the superiority of liberal Western culture (liberal in the general sense--anything post-Enlightenment, really) over those which are incompatible with our most cherished values.

I published a pretty good thesis on the subject, drawing mostly from neo-Aristotelian Joseph Raz and moral psychologist Stephen Darwall. Objectivity does not equal transcendentally true. It means "true independent of one's whims, tastes or attitudes", though it's important to understand that the framework for truth is very much contingent on social norms and historical progression. "Great jazz music" is a classification with logical truth-value, though it would have been utterly meaningless a hundred years ago.

Imhoteps right, identify th... (Below threshold)

Imhoteps right, identify the rapist to the rest of the inmates and let nature take its course.

Erm...Art is easie... (Below threshold)


Art is easier to talk about than morality


Death and murder have been ... (Below threshold)

Death and murder have been around since the beginning of time and we have been dealing with it since the beginning of time. This is not redefining anything according to the epoch. That is not only nonsense, it is a lazy approach or a cowards approach to a simple solution. Only liberals and so called intellectuals can make something so base and simple so complicted. Hyper, you are giving the Dukakis answer while I give the most americans answer. If someone brutally rapes my innocent granddaughter and takes that innocense away, I want that person off this planet for two reasons. Justice, and deterrent. He will be deterred from ever being able to do that again. This is real life Hyper, not thesis arguments. Every once in awhile it would be good to turn off the brain and listen to the heart. ww

I'm against the death penal... (Below threshold)

I'm against the death penalty, but not because I find it particularly cruel or unusual. That's a separate issue, one on which we can have reasonable disagreement.

What I was speaking about is something separate, though. It used to be acceptable to kill people with an axe or guillotine. Now it isn't. We used to think that hundreds of thousands of our soldiers getting killed in trench warfare was a reasonable way to pursue geopolitical aims, and now we don't. QED.

We weren't wrong in the past to approach matters of life and death with more cavalier or 'uncivilized' patterns of reasoning; it is fruitful, though, to reflect on differences between our society now, and our society then, to illuminate the evolution of human moral psychology in the Western world.

I'm a lawyer, and I agree, ... (Below threshold)

I'm a lawyer, and I agree, the law is an ass, at least the law coming out of most of the 5 libs. on the Supreme Court.

It's bad for all of us; if no one takes the law seriously, we have a major societal breakdown coming.

Although they very easily c... (Below threshold)

Although they very easily could have, the framers of the Constitution specifically refused to prohibit capital punishment in the Constitution and even referred to the death penalty in writing the Fifth Amendment.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury..."

Based on my adherence to natural law which, by the way, forms the basis of much of the Contitution, I argue that any man who murders another man, has declared that he does not accept the principle of individual rights. He is worse then an animal, as he has chosen to abdicate his reason, in order to act like an animal. He has adopted the code of the jungle, and must be dealt with like the animals in the jungle. He can make no claim to the principle of rights for protection. He has chosen to live outside the philosophical realm of a civilized society and deserves death. I see no contradiction for a civilization that esteems the sanctity of life, to dispense death as commensurable justice for the taking of human life. In fact, justice demands it.

Sorry. Here is the part of ... (Below threshold)

Sorry. Here is the part of the fifth amendment that I believe is relevant to the discussion:

"...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (emphasis mine)

Hyper, past ways of the de... (Below threshold)

Hyper, past ways of the death penalty were never "wrong" just better ways evolved. ww

Exactly, Willie. They weren... (Below threshold)

Exactly, Willie. They weren't "wrong" at the time, though reasonable people would have disagreed with one another and called each other all sorts of names. We now know that these practices would be wrong today. And, as always, reasonable people will disagree with one another as to how justice ought to be meted out--whether the death penalty is compatible with the tenets of a just society, for instance. The goalposts change as society evolves, for better or worse, but we'll always need referees (SCOTUS).

Clay--based on what argument have you affirmed that an individual can opt out of society by committing an act of evil? The judicial and penal systems operate very much within the jurisidction of civilized society (which is why all North Americans ought to be ashamed of the state of our respective penal systems). Doing wrong does not make one an "animal". It makes them a bad person, but a person nonetheless. In fact, we assert our superiority by extending to the guilty the respect which they denied their victims. We take away that which is most precious to a person--freedom--but we lack the authority to end a life, for moral and practical reasons (e.g. no one can say with certainty whether one is guilty, and there's no way to say "Sorry" to someone wrongly executed).

hyper, there's a very impor... (Below threshold)

hyper, there's a very important distinction you're not making here. The examples you cited were about the evolution of HOW the death penalty was carried out; in each case, the method that was in practice was supplanted by one believed to be more humane, less cruel, less painful, more efficient and reliable. Hence hanging to gas to electrocution to lethal injection.

This court case is not about HOW the penalty is administered, but whom it is administered to: the courts have gotten into the nuances of what crimes qualify for the death penalty, not how a felon is put to death.

I think that is a very, very important distinction.


Thanks JT for helping Hyper... (Below threshold)

Thanks JT for helping Hyper. Also Hyper, YOU said past methods were wrong.

We are talking different sides of the same coin. ww

No, not WERE wrong. They WE... (Below threshold)

No, not WERE wrong. They WEREN'T. However, they ARE wrong. But yes, I don't think we're disagreeing, Willie.

Jay Tea, I'll say again that I don't have a great understanding of legal scholarship, but I would be very surprised if this is without precedent. I'm less trusting of the electorate to advocate for what is right--consider the popular support of anti-miscegenation laws, or slavery. Sometimes Joe Sixpack gets it right, and sometimes he doesn't. Let the people in robes sort it out. The hoi polloi have strong sentiment as to what is right/wrong, but that is often very divergent from what is actually right/wrong. And I do think that 9 legal experts are better suited to figuring out what ought to be the laws of a nation based on its founding document than the people in general, even though they have in the past made decisions that are atrociously wrongheaded.

I can tell Hyper you do not... (Below threshold)

I can tell Hyper you do not live in a governmental system as the United States has. The will of the people should always supercede the will of a very few. I most certainly do not think 9 robed people have the interests in what the people should or shouldn't do. They are there to review law and use the constitution for their decisions period. Unfortunately, these judges have bias' that they bring. The only person I trust 100% to have my best interests at heart is me. Not 9 people who have no idea who I am. ww

Bad ruling by over reaching... (Below threshold)

Bad ruling by over reaching Judges, seems to be the trend with courts in mASS and Cal leading the way.

I do agree with the opinion that more children may be killed if a rapist has nothing to lose by killing his victim.

Some how we would need to devise a covert surprise execution.

On the books, for the average dipshit rapist the sentence would be life in prison.
Then once the life sentence has been handed down bring out a carnival wheel with execution slots on it and spin it.

OR... this looks good too

BY: Imhotep "unsupervised time in the exercise yard"

A very reasonable perspecti... (Below threshold)

A very reasonable perspective, Willie, which I respect. I just don't think that right and wrong are, or ought to be, subject to referendum. Lincoln didn't think so either. But there are examples of "legislating from the bench" or from the Executive branch that support both your position and mine.

I just sent the following e... (Below threshold)

I just sent the following email to Governor Jindal:


Can you preemptively issue a pardon for anyone who should happen to kill Patrick Kennedy? Or in general let it be known that those who murder convicted, sentenced, child rapists will be pardoned?

You cannot appeal the US Supreme Court, but this would allow you to bypass them.

The killer would have to be careful to avoid any Federal charges.

Alternately, and assuming that Kennedy is in state custody, you could issue an executive order - well publicised "Pour encourager les autres" - that child rapists will be put into the general population of the state penitentiary. (My understanding is that they will not long survive outside solitary confinement.)






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