There's no question that the "cruel and unusual" clause of the Constitution require judges to look outside the text of the document and make more-subjective-than-usual judgments about contemporary mores, evolving standards, and so forth. But that seems like an excellent reasons for Supreme Court Justices to err heavily on the side of respecting legislative decisions in these cases. (Particularly those judges, one might add, whose constitutional theories supposedly bias them in favor of rulings that expand, rather than contract, the public's freedom to participate in their own government.) I don't think that rape, even the rape of a child, merits the death penalty. But I don't think so strongly enough that I'm comfortable with Anthony Kennedy et. al. telling the people of the United States that they aren't permitted to impose it.
« The Follieri Follies | Main | The Way Things Ought To Be » Cruel and Unusual Punishment25 Jun 2008 01:25 pm TrackBackListed below are links to weblogs that reference Cruel and Unusual Punishment:
» The Supreme Court: America has grown more civilized in its understanding of “cruel and unusual” punishment from Joe Perez Comments (80)
Fair enough - but shouldn't you follow this up by decrying the court stepping in for Exxon? 
I disagree. Legislative decisions like this one are the most likely to be poorly thought out, because they play so well as symbolic politics (nobody wants to be a squish on defending children) that the merits of the law are pretty much ignored. And given that victim's rights organizations have generally opposed these laws, and when faced with a specific defendant juries (even in very conservative areas) are incredibly averse to actually imposing the death penalty, it's not as if Justice Anthony Kennedy was alone in his judgment.
> I don't think that rape, Even the likes of Josef Fritzl do not deserve the death penalty. At the very least, capital punishment ought to be strictly limited to those who murder other people.
There's actually little support for Ross' position. The reality is that legislatures are at there worst, just about, when passing anti-crime legislation. For some reason, legislators never get tagged when minor drug offenders get decades-long prison sentences, when prisons get so overcrowded that courts have to put them under new management, etc. Given this record, and the fact that (as Ross concedes) there really isn't anything more to the cruel and unusual punishment clause than whatever judges feel goes to far, there's very good reason for this to be a substantial brake on the legislative process. Remember, the reason this case was brought was because an earlier case, Coker v. Georgia, invalidated the death penalty for rapes of adults (which was long used in the South to legally murder blacks). Does Ross think Coker was wrongly decided too?
I'm glad that we have 5 Supreme Court Justices who have a higher moral sense than Ross Douthat does. Not that that's a very high standard. Scalia, Alito, Roberts and Thomas are shitty-ass excuses for human beings. That's why Repiglicans admire them, and that's why I look forward to President Obama replacing each and every one of them at some point during his 8 years in office.
Berger: "[B]ut shouldn't you follow this up by decrying the court stepping in for Exxon?" The obvious error in Berger's post is that he is confusing the overturning of a legislative enactment (a law providing for capital punishment for child rapists) with reversing a mere jury decision in a specific case (the amount of punitive damages against Exxon). Kennedy's death penalty opinion has far greater reach because it holds that the constitution prohibits all laws imposing a death sentence on child rapists -- even where the people through their legislatures specifically choose to impose such punishments. The Exxon decision does not have the same democracy-crushing effects becuase it reverses a jury decision without taking the general issue of punitive damages out of the hands of the people.
If you want (somehow) to abolish judicial review across the board, okay, executing certain child rapists would be a part of the package. But you're talking about states that don't afford defendants good counsel and that are inclined to reckless punitiveness, not always untinctured by racial bias. You're talking about cases where the witness evidence is inherently dubious. You're opening the courts to making important distinctions that are bound to be arbitrary in practice. Were one to rank cases where the abstract proposition "abolish judicial review" best fits, capital child-rape cases would rank in the lowest decile. Granted, if the system works as it should, the only lives lost would not be those of the innocent. But why should a conservative hope that the system won't work to take innocent lives? Why should he want to run that risk for the sake of democracy indulging the most primitive of instincts, instincts not unlikely to be misdirected? In these cases, it's a certainty a life will be taken where none has been lost before. Is that pro-life?
"Given that . . . there really isn't anything more to the cruel and unusual punishment clause than whatever judges feel goes to far, there's very good reason for this to be a substantial brake on the legislative process." If it all comes down to opinions, and it is the opinion of the people that a punishment is NOT cruel and unusual, but in the opinion of some judges it is, why should the judges' opinion prevail over the people? Please state a principle by which it is better for the judges' opinion to prevail over the people in matters of opinion. Would you hold the same view if you happened not to like the judges' opinion?
Yeah, since when does the Supreme Court tell the American people what they can and can't do?
Wonder if our host's respect for federalism and state courts extended to the right of the people of Florida to actually count their votes?
Kennedy premises his decision on two dubious assumptions, that a national consensus exists that the death penalty is never acceptable for the rape of a child and that imposition of the death penalty is inconsistent with standards of decency that mark the progress of a mature society. Justice Scalia in his dissent with Thomas and Alito concurring eviscerates these premises both in themselves and on the basic question of whether the Supreme Court or legislatures ought to make such basically a political decision. Of course, the liberal left,lacking the courage to accomplish such a result legislatively, is supinely delighted to allow the Court to usurp their political authority.
"Wonder if our host's respect for federalism and state courts extended to the right of the people of Florida to actually count their votes?" And I wonder if liberals' purported respect for equal protection (found to be in violation by a vote of 7-2) would be so blithely shunted aside if not for the purpose of giving your preferred presidential candidate another bite at the apple.
Ranker -- It's not a matter of abolishing judicial review. Judicial review obviously is a necessary and important part of the rule of law. The issue is whether judicial review means something more than judges simply imposing their own policy preferences. If judges are bound by nothing more than their own policy preferences when exercising judicial review, then judicial review destroys the rule of law. Why bother with debating issues and enacting laws through democratically-elected legislatures if judges can then do whatever they want with such laws, for whatever reason? This is madness.
Petey leavitts: "Kennedy premises his decision on two dubious assumptions, that a national consensus exists that the death penalty is never acceptable for the rape of a child and that imposition of the death penalty is inconsistent with standards of decency that mark the progress of a mature society." If Petey had only written "(T)he death penalty is inconsistent with standards of decency that mark the progress of a mature society," then he might be said to have a higher moral character than members of the Taliban do. But he didn't, and he doesn't. Which in my opinion makes him worse than they are, because he grew up in a free and rich society and he chose to become a savage, evil bastard. When the Peteys of the world die off Earth will be a better place.
CCBiggs-- My definition of "legislating from the bench" is
"It's not obvious to me that the rule of law requires nine unelected men and women determine policy regarding abortion, affirmative action, and gun control." Agreed. I'm willing to leave these issues to legislatures if you are. "My definition of 'legislating from the bench' is Only Congress and the President? Why not state legislatures too? "It's not obvious that the policy preferences of the Kennedy five are not aligned with those of a national popular majority." That might be a happy coincidence in this case, but it does not justify the democracy-usurping principle of judges trumping legislatures.
What provisions of the Constitution do you rely on for these propositions? Do you admit that the 8th amendment was not understood to outlaw this at the time it was adopted? When did the Constitution change on this point and, more importantly, by what process did it change?
If it all comes down to opinions, and it is the opinion of the people that a punishment is NOT cruel and unusual, but in the opinion of some judges it is, why should the judges' opinion prevail over the people? Because under Marbury v. Madison and 200 years of precedent, judges, and not the general public, enforce the Constitution.
Ah, Dilan, you're making my point. Marbury indeed held that judges enforce the Constitution. But, per the discussion above, if it all comes down to policy preferences -- and not adherence to the text or original understanding of the constitution -- then we're a long way from Marbury. By all means, judges should enforce the Constitution. But they shouldn't make stuff up.
That's right, motherfuckers--I'm back! Did you miss me?
Oh, please. Hint: it's not about Anthony Kennedy et. al.
"An 1854 North Carolina statute provided that antislavery agitation should be punished by whipping for the first offense and by death for the second. In 1860 the state legislature decided that this was too soft on crime and decreed death for first offenders." (Amar) In the event (unlikely but interesting) that a North Carolina prisoner pleaded before the US Supreme Court that his punishment under the statute was cruel and unusual, I suppose a Justice Scalia would deny him his plea and a Justice Breyer would sustain it. Applying a national standard, it seems to me that Breyer would be correct. Notice that the First Amendment and the Eighth are related, since "the most grisly punishments in England had typically been inflicted on those who spoke out against the government." (For the crime of writing books and pamphlets, in the 1630s the English lawyer's William Prynne's "ears were cut off by court order and ... subsequently, by another court order, his remaining ear stumps were gouged out while he was on the pillory.") I won't bother to inquire what punishments were standard practice, even in America, in 1791, when apparently standards of acceptability generally were lower than today's. Or had I better look at standard practice in 1868? Is that when punishments to bind us for all time were set? Another line of inquiry: what counted as equal protection in 1868? Should it have controlled what the Warren Court decided in 1954?
"Even the likes of Josef Fritzl do not deserve the death penalty."MARCU$ TR: Balderdash. Ideally the death penalty is for 1: People who are an unchangeable danger to others. 2: People whose acts are so heinous their continued life incites societal disorder. A murderer does not necessarily fit either one. A 19-year-old drug-dealer who shoots a cop might be perfectly able to rehabilitate and be forgiven. Fritzl much less so. He showed an ongoing pattern of violence stretching many years. Someone who has raped children over a period of many years is the same. I don't know the case well-enough to know if this man was a continuing threat to others, but if the death penalty can only be about revenge on murderers than it should probably be abandoned. That stated I don't agree with Ross's reasoning. On life or death issues I think state legislatures certainly can be overturned by the courts.
Ah, Dilan, you're making my point. Marbury indeed held that judges enforce the Constitution. But, per the discussion above, if it all comes down to policy preferences -- and not adherence to the text or original understanding of the constitution The text of the Cruel And Unusual Punishment clause is vague and general. The original understanding was likely NOT that punishments that seemed cruel and excessive to modern sensibilities but were accepted at the time of the adoption of the Constitution were permitted. Text and originalism don't answer the question of what a cruel and unusual punishment is. So the real question is, are you going to do what the Constitution says and have judges determine what is cruel and unusual, or are you going to ignore the provision because you don't like judges striking down punishments that conservatives support? If you have vague, broad provisions in the Constituion, you shouldn't be surprised to see judges giving them content. The fact that conservatives would prefer that the cruel and unusual punishment clause not constrain state legislatures is not a persuasive argument for ignoring the words in the document.
Ranker writes: "In the event (unlikely but interesting) that a North Carolina prisoner pleaded before the US Supreme Court that his punishment under the statute was cruel and unusual, I suppose a Justice Scalia would deny him his plea and a Justice Breyer would sustain it. Applying a national standard, it seems to me that Breyer would be correct." Scalia wouldn't just deny the plea, he'd make some caustic "witty" remark while doing so. He really is the Repiglican ideal.
I don't like the death penalty. I wish the people, in their wisdom or general lack thereof, would abolish it in the US. On the other hand, I think the ruling is lousy. It's interesting that five justices think child rape doesn't merit the death penalty, but that's roughly what we've learned. Especially given that the lack of executions for child rape used as evidence of the "changing standards" was partly based on the equally badly reasoned Coker. Note: I agree that execution for rape was sometimes used for judicial murder of blacks who may not have been guilty of the rape. Coker was still, as far as I see it, a bad ruling. But to some extent this one IS unusual -- I think that the "cruel and unusual" phrasing was so vague and "you can steer any boat through this channel" that it was a serious flaw in the Constitution, though it's hard to see anything more specific meeting the intention well, either.
I don't think that rape, even the rape of a child, merits the death penalty. No, but if the Catholic Church goes bankrupt as a result of their members' crimes and cover-ups, that would sit quite well with me. Once any and all of the evildoers are spending the rest of their days rotting behind bars, I mean.
Ross, You're wrong on this. The rape of a child most certainly does merit the death penalty. Several countries including liberal democracies like India and Mexico are currently consideirng reinstating the death penalty for child rape. As is suggested in Plato, submission to death can serve as an invaluable mechanism of repentance and atonement for the criminal. The story of the thief on the cross would tend to lend support to that claim. The purpose of the death penalty, properly understood, is redemption through suffering. Whether it reduces crime is an important side benefit but not the ultimate ground on which the death penalty is defensible. It is shameful and intolerable that fools like Anthony Kennedy want to close off that avenue of repentance and redemption so that a bunch of liberal law school professors, who probably don't believe in the story of the Cross anyway, can feel good about themselves. It's particularly ironic given that Dilan feels no compunction about the mass slaughter that takes place in the name of Roe vs. Wade. Apparently killing babies in the name of "women's rights to excel in the boardroom and in the bedroom" is perfectly OK, but executing pederasts in the name of justice and moral norms is not. But actually, on second thought it's perfectly explicable. It's a paradox of history and theology that since death is a necessary part of life, those who begin by hating death will end by hating life. Those people who have been the bitterest enemies of war and execution have also often been the bitterest enemies of procreation- Tolstoy is simply one case in point, as are many Buddhists and Christian heresies. Oh well. Screw Dilan and Anthony Kennedy. Their absurdities are simply hastening the day when the liberal order falls of its own contradictions- whether violently or peacefully- and it will be replaced by something substantially less "free" and substantially more sane and healthy.
Dilan: How do judges determine what is cruel and unusual? Do they base it on any objective standard, or do they just make it up? If the latter, won't judges across the country come to all sorts of different conclusions about what is cruel and unusual and what is not? And if the relevant test is some sort of "evolving standard of decency," aren't judges pooorly situated to know what that that is?
It's particularly ironic given that Dilan feels no compunction about the mass slaughter that takes place in the name of Roe vs. Wade. Apparently killing babies in the name of "women's rights to excel in the boardroom and in the bedroom" is perfectly OK, but executing pederasts in the name of justice and moral norms is not. Search ye here and search ye far, you will find no sign of me talking about the merits of this law. I was talking about the criticisms of the process, i.e., the claim that it is somehow "anti-democratic" for the Supreme Court to enforce the cruel and unusual punishment clause and give it content. Hector, you just made an argument (I will leave it to others to determine how good it is) regarding the merits of whether the death penalty for child rape is cruel and unusual punishment. But what I was criticizing was the attitude of many conservatives that despite this clause being plain as day in the Constitution, that judges should have no power within the structure of government to even determine that a punishment is too barbaric and heinous and is therefore unconstitutional. In any event, since you brought up the merits, I might just note that I think that anyone who really thinks the world is going to end if child rapists get life in prison instead of the death penalty is insane. Really, truly insane. You've lost perspective (not that you necessarily ever had any).
How do judges determine what is cruel and unusual? Do they base it on any objective standard, or do they just make it up? If the latter, won't judges across the country come to all sorts of different conclusions about what is cruel and unusual and what is not? Look, I don't want to get too far into the weeds here, but the entire common law process, along with the settling of questions by higher courts which become precedents followed by lower courts, is not really fairly characterized as "making it up". My point is that in reality, they are engaging in this process already. "Evolving standards of decency" is a puppet show that both the majority and dissenters engage in where they pretend that some trend in state legislation favors their position. In truth, the five justices in the majority think this is cruel and unusual; the four justices in the minority don't. There's nothing more to it than that. So what I advocate is throwing out the "evolving standards of decency" test and treat the Eighth Amendment like the "shock the conscience" test under Rochin v. California in the Fifth Amendment context or the test for a "reasonable" search under the Fourth Amendment. There, like here, you have a vaguely worded test, and judges have to give it content using the common law process, with appellate courts available to correct it when they get it wrong. Conservatives have some aversion to this (probably because they FAVOR some punishments that might be deemed "cruel"), but this is really what the Eighth Amendment calls for.
TMoC writes: "It's interesting that five justices think child rape doesn't merit the death penalty, but that's roughly what we've learned." Dilan's comments here are dead on regarding both the Constitution and the motivations of most conservatives.
Hell, your own beloved Pope Ratzinger didn't think child rape was important enough to call the cops over. Indeed, the Nazi Pope actively tried to cover it up. Why isn't that [very bad person] in a maximum security prison?
I apologize for calling the Pope, who went to great lengths to hide many, many cases of child molestation, a Nazi. He was, in fact, Hitler Youth. But he should be talking directly to God from a maximum lockdown. He would if there's any justice.
ed asks: "Why isn't that [very bad person] in a maximum security prison?" Because apparently the Vatican's status as a nation state gives him immunity. It's too bad he didn't get tossed into Ryker's on his last visit. A few days getting his cassock laundered there might teach even a vile old shit like him that rape is wrong. And his little dog Bernard Law, too.
Indeed. Sensible, civil people can calmly debate the merits of the Death Penalty and for whom, if anyone, it should apply. But we can all agree that the Hitler Youth Pope is, unquestionably, an evil peckerhead.
What a joke. Moe and Dilan criticize Pope Benedict for not doing enough to punish child molesters in the American priesthood. And they are right. Indeed, his indirect and passive responsibility was a grave moral error. Yet when it comes to the much greater sin of those who _directly_ and _actively_ rape children, those who repeatedly and violently rob children of their innocence forever, Moe and Dilan shrink from the thought of meting out to such pederasts the punishment that they deserve. Moral inconcistency, anyone?
Ed, you fool, Ratzinger deserted from the Hitler Youth, at considerable personal risk.
@Hector: Yes, its quite humorous that Moe and Dilan hold the Pope to a higher standard than a child molester. It's a crazy world.
well ross, you're not on the supreme court so you're opinion doesn't really count, now does it?
Hector writes: "What a joke. Moe and Dilan criticize Pope Benedict for not doing enough to punish child molesters in the American priesthood. And they are right. Indeed, his indirect and passive responsibility was a grave moral error. Yet when it comes to the much greater sin of those who _directly_ and _actively_ rape children, those who repeatedly and violently rob children of their innocence forever, Moe and Dilan shrink from the thought of meting out to such pederasts the punishment that they deserve. Moral inconcistency, anyone?" Don't be a fucking Leavitt-class idiot, Hector. Both Dilan and I favor punishment for child molestors, just not the death penalty. The only "moral inconsistency" is in your demented little demon-haunted head. Ratzinger ACTIVELY aided in the cover-up, by the way - nothing passive about him - and it wasn't just in the US, but worldwide.
Ed, you fool, Ratzinger deserted from the Hitler Youth, at considerable personal risk. I stand corrected, apparently B-Rat, according to a linkless blog comment, was a mensch when he was a young man. But as an adult, he did--and the record very clearly shows this--go to great lengths to cover child rapists. He is, unquestionably, an evil peckerhead and should be locked up for the rest off his days. ndeed, his indirect and passive responsibility was a grave moral error. ...To say the least... Moe and Dilan shrink from the thought of meting out to such pederasts the punishment that they deserve. Yes, yes, that's it Hector, old sport. Moe and Dilan are objectively Pro-Child Rapist. Kind of like the Pope. Except, even if Moe and Dilan said or even implied what you're saying they did (and they clearly didn't), they're not worse than the Hitler Youth (ret.) Pope. Moe and Dilan are two blog commenters, teh HY(r)P actively abetted many, many child rapists and remains an evil peckerhead who should be imprisoned. See the difference?
"Hell, your own beloved Pope Ratzinger didn't think child rape was important enough to call the cops over." ML&J TR: Traditionally the Church is supposed to handle its own. It exists in nations where the cops are crooked and untrustworthy so "send people to the cops" is not a sensible standard for it to have as a whole. The idea the cops are "good guys" who you can trust is a very Caucasian-American kind of thinking. The idea of the Nation uber Alles, even above God, is also largely an American thing alien to most of the Catholic world. Still the ideal to me is that the Church can deal with it "in house" because the Church can deal with it more harshly than the US government. Traditionally the Papal States executed people. Ideally the Church could've locked these men up to Gulag Monasteries somewhere or hire someone to execute them in the Vatican. (It's always been against the rules for priests to do executions, so they would have to revive the institution of "Pope's executioner") Sadly the Church had, to some extent, been influenced by in-groupishness and unrealistic views on psychology. The in-groupishness was always something of a problem as in the Medieval times the clerical courts were sometimes too soft on sex-offenders. Still I do consider the ideal to be the Church dealing with this on its own through execution or life imprisonment. The execution ideal is unreachable as the specter of the Vatican executing people dovetails into too much anti-Catholic imagery. The "Monastery Gulag" should be doable, but may not be due to a weakening in discipline. So as it is as of yet unreachable I suppose the Church will have to start trusting police forces of the ephemeral nations of the world. Ideally the molesting priests should have a millstone tied around their neck and be dumped in the Tiber, but you can't always get what you want. (By "molesting priests" I mean repeat offenders proven as such)
"Vatican executing people dovetails into too much anti-Catholic imagery." To expand on that a bit the Republic of Italy would probably march on the Vatican if it resumed execution.
TR: Traditionally the Church is supposed to handle its own. Say, there's a grand idea. And how's that working out? Still the ideal to me is that the Church can deal with it "in house" because the Church can deal with it more harshly than the US government. Whoa, have all those child rapists and their abettors been locked up? I must have missed that front page story. Sadly the Church had, to some extent, been influenced by in-groupishness and unrealistic views on psychology. To some extent. Guess the extent depends on whether or not you were repeatedly raped as a child or not. The in-groupishness was always something of a problem as in the Medieval times the clerical courts were sometimes too soft on sex-offenders. Well, they made up for it with the Jews. Bloody heretics. Why can't they just see The Truth? Ideally the molesting priests should have a millstone tied around their neck and be dumped in the Tiber, I'm not up on my Church doctrine (have they bought into the radical theory of heliocentrism yet?), but I'm pretty sure this church is against Capital Punishment. I'm pretty sure B-Rat and the last coupla Popes even clearly said as much. Other questions: Should the Church mete out punishment for speeding, jaywalking, murder, tax fraud? Should other churches do likewise? I'm a nonpracticing agnostic, can I just do whatever I want like Dick Cheney?
Other question: What should happen to B-Rat? He did his dadgumdest to cover up for the rapists. Who's going to throw him into the clink? God?
TR fantasizes: "Still the ideal to me is that the Church can deal with it "in house" because the Church can deal with it more harshly than the US government. Traditionally the Papal States executed people. Ideally the Church could've locked these men up to Gulag Monasteries somewhere or hire someone to execute them in the Vatican." In actual practice they just shuffled them around to new parishes where they could pork fresh meat. There was no "harsh treatment" to be found. Bernie Law was promoted for his part. So you couldn't be more wrong, Tommy.
Also: Bushpigs! Repiglicans! And so on!
Screw you, chuckles, you're not me.
I'm the real MoeLarryAndJesus, and none of these Repiglican impostors are me.
Repiglican!
I'm filled with joy when I think about how my Repiglican imitators will be crying on the first Wednesday in November.
Hector: "The purpose of the death penalty, properly understood, is redemption through suffering." what the fuck? No. It. Is. Not. this is one of the most warped abortions of reasoning i've yet encountered, and that's saying something. 1) the death penalty is about justice. Punishment. making the bad guy feel pain and making him suffer.I think this is an entirely appropriate response to transcendent crimes like raping a child. "redeeming" the criminal is not only irrelevant to this objective, it is contradictory. we want the child rapist to pay, not go to heaven.
"If it all comes down to opinions, and it is the opinion of the people that a punishment is NOT cruel and unusual, but in the opinion of some judges it is, why should the judges' opinion prevail over the people?" Because under Marbury v. Madison and 200 years of precedent, judges, and not the general public, enforce the Constitution. A smug answer arguing for Federal judicial supremacy over the Executive, Legislators, the States, and the lowly passions of the mob (meaning The People who drafted the Constitution as their instrument, not the instrument of the New Sanhedrin to make shit up not in the Constitution or Statutes of Law). The problem with Marbury vs. Madison is that Judicial Supremacy was intelectually argued in the case as only limited to 9 lawyers in robes arguing cases where the People or their Representatives infringed on the actual Constitution without bothering to Amend it..thus the lifetime lawyer appointees were supposed to be the Guardians to safeguard the Constitution against actions that went against it's intent of the People and Their Representatives that drafted it. Others have defied the notions of the Lawyers having supremacy over The People. Obviously, Lincoln, in believing that co-equal branches and the document as a whole, not single phrase-parsing, were cornerstones, chose to defy the Taney Court lawyers, and put the full weight of the People's Executive Branch and a dragged along Congress - againt the lawyer's Sanhedrin omnipotent high-priests dressed in robes. Much to his credit. Jackson did. And of course, FDR warned that SCOTUS efforts to sabotage each and everyone of his programs and the Will of The People would require him to pack the Court with 18-20 Justices if necessary....which led the chastened lawyers dressed in robes to back down (The "Switch in time, that saved the Nine".) We have gone through a recent period where Kennedy, the two Jewish Transnationalists and lovers of the Zimbabwe Constitution,, hardcore Leftist Souter, and Stevens betraying everything about his former self and those who gave him the SCOTUS appointment - have punked out the People and their elected Reps. They are not "enforcing the Constitution", they are making up domestic legislation. And, in judicial hubris, redefining the conduct of war. When war between the US and other entities was something the Constitution deliberately gave primacy to the Executive and Congress, not enforcers of US domestic law - the primacy in. All that rests on is the other branches of government and The People, to continue to accept that they are all inferior to the New Sanhedrin's lifetime, unaccountable power over America. That the continue to bow and genuflect before the Left, Jewish Transnationalist "Rule of Law" or they will be guilty of defying the all-wise lawyer's power grab and thus "Shred the Constitution" by fighting back against Judicial Tyranny. But we can fight back, as the People - by formal and by guerilla means. A section of society - the underclass- has already rejected "justice" as a function of whether or not you have the money to get the lawyers to buy justice. Well, then the power of the Imperial Judiciary would stand revealed as not supreme over us all, that the laws they pull out of their asses and demand we worship are openly disrespected.
klaven khris ford types: "We have gone through a recent period where Kennedy, the two Jewish Transnationalists and lovers of the Zimbabwe Constitution,, hardcore Leftist Souter, and Stevens betraying everything about his former self and those who gave him the SCOTUS appointment - have punked out the People and their elected Reps." This is the true face of Repiglicanism, folks. Scratch any Bush-slurping dingbat and you'll find these sort of fringe beliefs - each and every one of them.
The original intent of the 8th Amendment was to restrain JUDGES, not legislatures... It was based on the 1689 English Bill of Rights, which applied only to punishments not authorized by Parliament; in the U.S. context it probably also banned punishments viewed as torture at that time, such as pillorying, which were also virtually unknown in the U.S. at that time. But I guess if we're submitting to rule by judicial oligarchy, it doesn't matter what was the understanding of a right passed by a democratic and legislative supermajority, as it was understood by those who passed it.
"This is the true face of Repiglicanism, folks. Scratch any Bush-slurping dingbat and you'll find these sort of fringe beliefs - each and every one of them." Angry-Midget Syndrome is the sole psychological basis of populist conservatism. Chris Ford has given us a prime example.
Thomas R., I agree with you that the Holy See should have an executioner again. It would be nice to see John Geoghan and people like that hung, drawn and quartered. Given that it doesn't and unfortunately doesn't have 'Gulag Monasteries' right now, it probably will have to rely for the near future on national police forces. Actually I think it's a shame that the Vatican is located in such a secular country. Italy doesn't deserve the Papacy. I think it should be moved to a more practicing Christian country- perhaps to Malta, Ireland, Peru, or Buenos Aires. Ed, Are you a first class idiot? Do you know what the word "heretic" means? A Jew cannot be a heretic by definition- a heretic is someone who believes in Christ but interprets Christianity differently. St. Thomas Aquinas says explcitly in the "Summa Theologica" that while heretics may be compelled by the sword, unbelievers should not be, since a forced conversion is displeasing to God. He also calls for a certain degree of toleration for the Jews. By the way this is not a simple case of Christians unilaterally hating Jews. Medieval Jewish writings portrayed Jesus Christ as immersed in urine up to his eyebrows, in hell, for the crime of blasphemy. Jewish parents during the Crusades were also known to kill their infants rather than have them grow up as Christians. The animosity was quite definitely mutual.
Raft, I may not have explained my case well enough. Below is a quote from Noah Millman at the American Scene. I think it wonderfully explicates the "expiatory" argument which I view as the only legitimate justification for punishment. Mr. Millman apparently disagrees with the expiatory argument but explicates it beautifully nonetheless. The truth of this argument is obvious to me. "Expiation. By committing a crime, a man becomes a criminal. Whether this transformation is understood to be a change in the quality of his soul, or whether it is merely a change in his status within society, he must do penance/pay his “debt” to society in order to be whole/be accepted back into the community. If the crime is serious enough, nothing can pay the debt but the tender of his life, and his wholeness or reintegration into the community can only be posthumous. This is really the only justification that I can’t see being construed as consequentialist. And while it need not be phrased in religious terms, it’s an argument that is difficult to make within the dominant rights-based paradigm. "A justification for the death penalty on expiatory grounds depends on a posited implied consent on the part of the executed, whereas as justification from satisfaction does not so depend. As well, a justification for the death penalty on the grounds of satisfaction can be integrated into a utilitarian framework as noted above, and could coexist with a rights-based framework if the rights of the criminal serve as meaningful limits on the ability of the society to demand satisfaction and/or if violation of rights is the rubric under which we understand the harm of crime; I’m not sure an expiatory justification can be integrated as easily if at all...... "The fourth justification is, as noted, the hardest to fit into our rights-based framework. But I think it’s the most important one for our case at hand. The rapist’s actions are so “inhuman” that by committing those actions he removed himself from the category of humanity. There is nothing he can do to rejoin the human community or make himself human again; he has made himself a monster. The life cannot be redeemed; it can only be returned. There is no whole and human life available to him; he must surrender his life to make himself whole, and to make himself human. "This, I think, is what the visceral desire for a capital penalty for gruesome crimes is rooted in. Certain actions could not be taken by a human being. If we human beings allow monsters who commit them to live, we debase the meaning of what it is to be human. It’s not about whether the harm is tantamount to murder – even if the child recovers, and overcomes the trauma, the crime, and what it says about the criminal who committed it, remains. To deny this – to say that he can live, and be counted as human – feels like society is saying: this, too, is human, and not alien." This is exactly what I feel about crimes like pederasty.
The exceedingly sensible Hector writes... Thomas R., I agree with you that the Holy See should have an executioner again. Again, who's going to punish the criminal Pope? Actually I think it's a shame that the Vatican is located in such a secular country. Italy doesn't deserve the Papacy. Yeah, what's with the Rule of Law applying to everyone, anyway? Ed, Are you a first class idiot? No. Do you know what the word "heretic" means? A Jew cannot be a heretic by definition- a heretic is someone who believes in Christ but interprets Christianity differently. Boy, do I feel silly. Thank goodness the Church didn't torture and kill Jews in the name of heresy. Because that would be really, really bad. Semantically. [St. Thomas Aquinas] also calls for a certain degree of toleration for the Jews. Wow, what a mensch! I think Bull Connor called for a certain degree of toleration for "The Coloreds." Medieval Jewish writings portrayed Jesus Christ as immersed in urine up to his eyebrows, in hell, for the crime of blasphemy They did!? Those monsters! They actually wrote mean things about Teh Jesus? That's, like, a million gillion times worse than The Inquisition. You got a link for that, incidentally? Jewish parents during the Crusades were also known to kill their infants rather than have them grow up as Christians. I'm sure that's well documented. Either way, seems easy to see that this case is self-inflicted. Did members of The Church kill their infants rather than have them interact with Jews? The animosity was quite definitely mutual. Really? Jews hated The Church? I can't imagine why. I heard some Jews hated certain European leaders in the mid-20th Century. What's wrong with those people? Why so much hate? If only they would accept The Truth. I may not have explained my case well enough. No, we can see where you're coming from. The far, far right end of the dial. This is exactly what I feel about crimes like pederasty. But how do you feel about actively aiding and abetting pederasts? (You know, like The Pope?)
Hector writes: "Jewish parents during the Crusades were also known to kill their infants rather than have them grow up as Christians." You're as repugnant a bigot as khris ford is, Hector. What the hell is wrong with you? Next you'll be saying Jews killed Christian children and used the blood to make Passover bread. Is there any old libel you'd be ashamed to repeat?
I don't have any particular problem with executing pedophiles, in concept. Where my problems start is that, when these crimes occur, in practice, there are not multiple witnesses and there is rarely physical evidence by the time the crimes are reported. Since witnesses and evidence are not expected, I have to imagine a higher percentage of child molestation cases are false than, say, assault cases (in which the victim is either visibly beat up or not). Therein lies my problem with capital punishment for child rape or any rape. It's nature makes it difficult to be certain about. I'd be more comfortable with really long sentencing (30, 40, 50 years, life, etc.), so, for instance, if the accusation came falsely as part of a bitter divorce, the false accuser would have a chance to recant without having stolen 100% of the accused's life (I don't mean to suggest that those who say they've been molested are lying, just that the nature of the crime makes it easier for the unscrupulous to suggest it falsely). I'm also worried that if child rape becomes a capital offense, every child rapist will murder every child they rape.
And seven hundred years later some Christians burned their daughters at the stake rather than letting them grow up having danced. Neither fact is, in any way relevent. I see the tendency I noticed from you in the porn thread to extrapolate from a few instances across all of a particular group exists here as well.
Moe, The stories of Jewish parents killing their children rather than have them baptized isn't a libel made up by Christians. It was recounted by Jewish chroniclers in Jewish accounts of medieval pogroms, and was displayed as a point of pride- a contemporary equivalent of the mother of Eliezer and the Maccabean martyrs, who refused to abjure her faith in order to save her children. I did not reference that fact in order to show how barbaric the Jews were- I referenced it to show that _both_ Jews and Christians at the time bitterly despised each other's religions. In truth, we are called upon to admire the Maccabean martyrs for their faith, and the mother of the martyrs for hers, a faith so strong that it overcame even her natural love for her children. I do admire her and in some ways I even admire the medieval Jewish martyrs for valuing their God higher than their natural affections. While I think their faith was misplaced and their actions were wrong, nevertheless I recognize that they acted according to their consciences as they understood them, and for that they deserve respect. Now will you please retract the 'bigot' slur?
"[T]here are famous instances in which Jews killed their children to avoid their being baptized during pogroms." From Boswell, J. "The Kindness of Children: The Abandonment of Children in Western Europe." Chicago University Press, 1998. John Boswell a noted homosexual scholar and is hardly an orthodox Christian. Boswell goes on to say that this practice was highly controversial among Jewish communities at the time.
A smug answer arguing for Federal judicial supremacy over the Executive, Legislators, the States, and the lowly passions of the mob (meaning The People who drafted the Constitution as their instrument, not the instrument of the New Sanhedrin to make shit up not in the Constitution or Statutes of Law). The problem with Marbury vs. Madison is that Judicial Supremacy was intelectually argued in the case as only limited to 9 lawyers in robes arguing cases where the People or their Representatives infringed on the actual Constitution without bothering to Amend it..thus the lifetime lawyer appointees were supposed to be the Guardians to safeguard the Constitution against actions that went against it's intent of the People and Their Representatives that drafted it. Chris, whining about Marbury v. Madison is like whining about the unconstitutionality of the federal reserve. You can complain all you want, but it isn't going anywhere, and criticizing judges for exercising their powers under it is silly. That is their job, as currently defined.
I referenced it to show that _both_ Jews and Christians at the time bitterly despised each other's religions. Yeah, you're right, Teh Jewz had it comin.
Ed, You're an idiot. I am on the left politically and have written a bunch of essays on South American politics from a Left perspective. As for links: http://en.wikipedia.org/wiki/Toledot_Yeshu
Hector, I'm rubber, you're glue...and so forth. You may be barely to the left of Mel Gibson's wacky uncle, but you're still to the right of the Sheriff of Nottingham. Hey, thanks for the link. I like this part, Anti-Jewish polemicists from the 9th century through the 20th have dredged up these texts and exploited them to flame Christian hostility towards Jews. But I didn't need Wikipedia to tell me that. That was obvious when you brought it up. Keep on keepin' on!
Hector writes: ""[T]here are famous instances in which Jews killed their children to avoid their being baptized during pogroms." From Boswell, J. "The Kindness of Children: The Abandonment of Children in Western Europe." Chicago University Press, 1998. John Boswell a noted homosexual scholar and is hardly an orthodox Christian. Boswell goes on to say that this practice was highly controversial among Jewish communities at the time." Which is it, Hector - these supposed events happened during the Crusades, as you said earlier, or during pogroms? And what the fuck does Boswell's sexuality have to do with this discussion? Have you, at long last, no sense of decency?
Oh, and Hector, if you could provide a link to your lefty essays about South America, I'd love to read them---if I've been very, very bad. Like, aiding and abetting pederasts bad.
> "Even the likes of Josef Fritzl do not deserve > TR: Balderdash. Ideally the death penalty is for > 1: People who are an unchangeable danger to others.
> 2: People whose acts are so heinous their
"Why grant his wish in that case?" MARCU$ TR: I'm not working on the concept of punishment or revenge. I don't believe the death penalty should be done for those reasons. I see the death penalty primarily as about protection. If dying is his wish I think this shows that even he understands his life is of negative value. If anything "his wish" makes me more likely to think it's a correct and proper thing to do. If even he consents to it than the harm is even less. "'People whose acts are so heinous their continued life incites societal disorder.' Says who?" M TR: Says me. Also it's within reason as a justification for such an extreme act. (Execution) "If *these* people did not become savage brutes (heck, *I* cannot understand how one could possibly survive an ordeal like that), why do religious conservative Americans supposedly "respecting life" have to talk like ones??" M TR: The "millstone around the neck" was from the Gospels, you might be taking that too literal. I'm not really saying let's be savage. In many ways I consider the death penalty for men like this to be more merciful. Many of them are aware of the horror they have become. If they're not those around them are. By killing them you reduce suffering. Now normally I'm not party to such utilitarian concerns, but some cases are extreme and obvious enough I think it works. As for the victims their resilience is inspiring, but it's not necessarily wise to only go by what victims feel. Some victims want execution in cases where I feel it must not be applied. Other times victims families need to concentrate on the victim and not the perpretator. When my brother was assaulted the perpretators were simply animals to me, I didn't care what happened to them. Even their punishment did not matter to me. What mattered was my brother surviving and not facing permanent brain damage. This does not mean the courts should've been indifferent to them as well. My "job" as the relative of a victim was not theirs or theirs mine.
On another matter Judaism did have a negative view of Christianity. I don't think this was solely due to mistreatment. For example "The first one to have adopted this plan was Jesus the Nazarene, may his bones be ground to dust. He was a Jew because his mother was a Jewess although his father was a Gentile. For in accordance with the principles of our law, a child born of a Jewess and a Gentile, or of a Jewess and a slave, is legitimate. (Yebamot 45a). Jesus is only figuratively termed an illegitimate child. He impelled people to believe that he was a prophet sent by God to clarify perplexities in the Torah, and that he was the Messiah that was predicted by each and every seer. He interpreted the Torah and its precepts in such a fashion as to lead to their total annulment, to the abolition of all its commandments and to the violation of its prohibitions. The sages, of blessed memory, having become aware of his plans before his reputation spread among our people, meted out fitting punishment to him." Maimonides That being said I think this is a common reaction between any religion and an "offshoot religion." The Muslims are much harsher on Baha'i and Christianity was similarly harsh to Mormons. Also I find some of what Hector's saying to be disturbing.
Moe, Let me be clear, I'm not arguing that Jewish and Christian mutual animosities were equal in intensity or in effect. Christian treatment of the Jews was quite definitely worse, and it's a lasting shame on the Christian record. I'm very much in favor of the apologies to the Jewish communities that were made by recent popes. Moreover I'm not going to say it was something extrinsic to the religion. Religious intolerance is something that Christianity has been very prone to from the beginning, probably more than other religions. It's worth noting that the only Jewish state in the Middle Ages, Khazaria, was relatively tolerant towards Christians, Muslims, and pagans. That being said, I wanted to counter the notion that the animosity was all on one side. Religious intolerance and violence is something that has characterized pretty much all historical ages and cultures- it's a very human failing. And the more highly developed and compelling the religion, the more nasty the intolerance it can inspire (as we know, the best things are liable to the worst corruptions. It's also worth noting that the treatment of the Jews during the Middle Ages was much better than that of Christian heretics (including Protestants and Orthodox in Catholic lands and vice versa). Our age is not that much better since in large part we no longer fight about religion because we no longer care about religion. You wouldn't praise a bunch of eunuchs for being chaste, after all.
The trackback mentions something the court said that I hadn't considered. That being the death penalty for it would mean a child rapist might as well kill their victims, to silence them I suppose, as they can get death either way. Although I'm not sure that matters much on consideration. A child rapist can be a continuing threat to other people without ever being capable of murder. Besides that it's speculation that I'm not really sure is based on the rate of murder children in the states that had it. (Louisiana I think has a high rate of child murder, but I don't know if child rape/murder is more common)
Re: Do you admit that the 8th amendment was not understood to outlaw this at the time it was adopted? The Supreme Court also just overturned Washington DC's gun ban. This ban applies mainly to weapons that did not exist back in 1787. Per your standard the DC gun ban was constitutional because the words "arms" did not include modern weaponry at the time the 2nd Amendment was written. (And for that matter should the 1st Amendment apply to broadcast and web news sources, which also did not exist in 1787?) Re: submission to death can serve as an invaluable mechanism of repentance and atonement for the criminal. This is the logic of the Inquisition. It is profoundly anti-Christian. Re: The purpose of the death penalty, properly understood, is redemption through suffering. Redemption (from a Christian POV) comes through Jesus Christ. One's own personal sufferings are pointless and meaningless there. However to cause unnecessary suffering to other people is indeed a sin.
Thomas R., Yeah that's a problem with the death penalty on prudential grounds. While I support the death penalty on moral grounds, as a matter of _prudence_ it might be best not to have it for murder. another problem is that children might be less willing to testify if it means the death penalty for their rapist. You could get around both of those problems I suppose by having the death penalty be an option that it was up to the judge's discretion to use or not.
criticizing judges for exercising their powers under it is silly. That is their job, as currently defined. An aspect of their job is to inhibit the enforcement of statutory law and administrative regulations that conflict with the Constitution. Alas, the preferred method for consruing that document amongst the appellate judiciary and the law professoriate is "I-say-it's-spinach". The culture of the elite bar is such that judicial review can no longer be made compatible with republican institutions, and must therefore be junked.
"Redemption (from a Christian POV) comes through Jesus Christ. One's own personal sufferings are pointless and meaningless there." JF TR: I think that's going too far in the other direction. There's pretty clear indications in the Gospel of Matthew that those who mourn and suffer will be comforted. Elsewhere in the Gospels the idea that suffering can lead to Christ exists. What Hector did wrong is to go from this to basically saying that causing one to suffer and die is somehow good or justifiable for repentance. This is very Medieval and even a tad creepy. As I understand it the idea of learning through suffering is about dealing with the suffering inherent in life and also things you can't control. It doesn't mean it's okay to make people suffer as a learning experience. If it did than torture should be even more acceptable than the death penalty as torture brings suffering without death and death can end all chance of repentance.
|
Today's Headlines From The Atlantic |
Copyright © 2009 by The Atlantic Monthly Group. All rights reserved.
Yet you are perfectly comfortable with...no, never mind, it's too easy.
Posted by Pooh | June 25, 2008 1:39 PM