Tuesday, 1 March 2005

Death penalty

Seeing the juvenile death penalty overturned today was good in a number of ways—the reading of the constitution that says the 8th amendment is malleable is plausible to me—but the 5th amendment reading other people are putting forward is not. Already there are calls to overturn the death penalty altogether on constitutional grounds. These, however, are not plausible.

I should be happy with today’s ruling, but I’m not. Most of the people calling for a complete overturn of the death penalty have apparently not read the constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; 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.
Note that it is constitional to take a life provided that due process is provided. The death penalty is mentioned elsewhere in the constitution and the country’s history doesn’t support a conclusion that it is unconstitutional.

The references to international law are a bit galling as well. I looked at the opinion and Kennedy did limit those references and stated that they had no legal weight. If so, why mention them? I'm with Scalia: if the Justices want to indulge their curiosity, fine. Just keep it out of their opinions.


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[Permalink] 1. David Andersen wrote @ Tue, 1 Mar 2005, 8:50 pm CST:

“Seeing the juvenile death penalty overturned today was good in a number of ways…”

Robert, how so?

I’m disappointed. Cruel and unusal punishment my eye. Klebold and Harris(Columbine) – had they not taken the gutless way out of their premeditated, willful, and evil act – would have been deserving candidates. Likewise Lee Malvo.

Here we have a court that only a few days ago in oral arguments for Kelo v New London appears to be leaning towards the idea that courts cannot possibly discern what constitutes an unlawful taking under the 5th amendment, but has no problem laying down an arbitrary age for the death penalty. Can anyone delineate a clear test – beyond a reasonable doubt – that a 17 year murderer (for example) is any less culpable than the 18 year old murderer? I don’t think so.

The use of the death penalty should be decided on a case by case basis and not subject to any arbitrary line in the sand. If there is going to be a line in a state, it sure shouldn’t be imposed by the courts! This court is so disappointing.

People lament what sort of society advocates the execution of ‘children’ but I say whay sort of society tolerates anything less than the full removal of heinous murderers (convicted beyond a reasonable doubt) from its presence.? We continue to sow the seeds of our own destruction.



I had an econometrics test today and had to ignore this most of the day, but it was troubling from the very beginning. I’m in the process of reevaluating my thoughts on it. As a policy matter I agree with the ruling, but the way they approached it is troubling.

It appears that opponents of the death penalty are willing to discard the constitution whenever it doesn’t comport with their views. Even worse, they’re using “international law” as a basis for judging the constitution, instead of the other way around.

Still reevaluating and open to suggestion…...

[Permalink] 3. David Andersen wrote @ Tue, 1 Mar 2005, 9:21 pm CST:
"It appears that opponents of the death penalty are willing to discard the constitution whenever it doesn’t comport with their views."

Drop ‘death penalty’ and fill in nearly any random issue and your statement holds true. That’s the sad state of the world today.


The words “arbitrary and capricious” come to mind.

The majority opinion cites some nebulous ‘consensus of public opinion’ regarding the morality of executing minors (though how 47% came to be regarded as a consensus is beyond me).

Hmmm… let me see. How long ago was it that this same court rejected morality as a basis for lawmaking? What case was that? Lawrence v. TX. Oh, but that was the LEGISLATURE that was trying to use morality to make law.. silly twits. They should have known better.

And 47% doth indeed a consensus make when it is bolstered by international opinion (the dictum that the Constitution was to be the supreme law of the land being so outdated, and apparently not passing that all-important Global Test…)

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