Child Rape is bad, but maybe not that bad says SCOUS
Jun 25th, 2008 by David Anderson
The funny thing is as a matter of public policy, I agree that child rape should not be a death penalty crime. The main reason is simple; the predator would be more likely to kill the victim. It is easier to get away with murder than have a rape victim who knows you running around. As one victim of molestation told me, “I would rather be alive than dead”.
Yet I disagree with this Court ruling which struck down laws which make child rape subject to the death penalty. It is not the role of the Court to determine public policy issues. That is for the people. The history of this country shows that rape can be a capitol crime. Social Science tells us that serial child rapists rarely change. It is the right of the people to determine the best way to deal with these criminal penalties. The Court’s ruling is another example of a judicial power grab. The High court thinks it is a super legislature which has a right to impose or veto policy. We undermine the rule of law when we sideline the lawmakers. Congress needs to reign in the Courts if they care about Constitutional law.
Your understanding of how courts operate is truly sad. They cannot create laws, they can only void them.
So when lawmakers pass an unconstitutional law, the court cannot ever overturn that unconstitutional law, for that would sideline the lawmakers?
That is ridiculous. It makes you opposed to Marbury v. Madison. Do Conservatives really object to judicial review and 205 years of court precedence?
As Al says, the Court is not creating laws or policy. It is merely declaring a law as unconstitutional. That is exactly the court’s role in our system of government.
Careful, DD. The Supreme Court’s role is not explicitly spelled out in the Constitution; it was more or less cobbled together by John Marshall in the case you cite. The fact that our Constitution, from its earliest days, has always been a so-called “living” document (actually an evolving one, but they don’t believe in evolution so they don’t like that term) gums up their simplistic world view. Objecting to specific instances of bad decision-making is just so darn time-consuming; easier to condemn the entire thing.
IOW, they throw not just the baby but the entire family out with the bathwater — except, of course, in cases like the court’s interference in the 2000 presidential election. What was the original principle Justice Scalia adhered to there? Oh yeah, I remember the quotes from his Princeton speech: “”Oh, get over it. It’s eight years ago. We were the laughing stock of the world. The world’s greatest democracy that couldn’t conduct an election. … By 5-4 we decided enough is enough and we put an end to it and I think the vast majority of citizens in the country were grateful that we did that.”
Yes indeedy, I remember when Congress passed that law: “Enough is enough.”
The potential to replace two of the “liberal” justices is reason numero uno to vote for John McCain.
I simply cannot wait for the day when “conservatives” retake the majority of the SCOTUS. To quote Justice Scalia “he who lives by the ipse dixit dies by the ipse dixit.” When the conservative court starts to “void” laws concerning welfare programs, we will see if democrats still say that the court is not “creating laws.”
This country would be in much better shape today if the liberal justices had not allowed the federal government to continuously make unconstitutional power grabs from the states. (Conservatives have not been perfect in this matter either, for example the Raich medical marijuana case, but by and large they are the true protectors of the Constitution and people’s rights). The more centralized everything becomes and the less control states have over their criminal laws and everyday affairs, the less possible it is for citizens to hold their representatives accountable.
Our Constitution was not ratified with ease because many groups of people have fundamentally different views. If you look at state constitutions you will realize that people in different geographical areas have different value systems. People in the midwest and westward, not surprisingly given the courage it took to initially head west, valued independence and freedom. The northeast’s constitutions are most like English law, for obvious reasons.
The US Constitution was ratified based on the promise that individual states would be respected. In fact, the 10th amendment was passed to guarantee this.
Sadly enough for our country we have democrats who are so convinced that THEY are right that they appoint justices who disregard our Constitutional system.
A court full of justices like Roberts and Thomas would force Congress and state governments to do their damn jobs instead of constantly preening for cameras in hopes of being reelected.
Re: bush-gore, I would highly recommend reading:
http://stubbornfacts.us/files/Althouse,%20The%20Authoritative%20Lawsaying%20Power,%2061%20Md.pdf
bc: “Sadly enough for our country we have democrats who are so convinced that THEY are right that they appoint justices who disregard our Constitutional system.”
It goes both ways, bc, and you know that well I’m sure!
But to the point of the death penalty, where do you stand on the sanctity of life? And where do you stand on premeditated murder committed by the state?
Certainly rape of a child is a heinous crime, one of the worst I can imagine short of premeditated murder. I have no problem with long term incarceration and routine whippings short of torture.
And don’t forget, in case of judicial error, death is irreversible.
For all these reasons, the death penalty is not appropriate, ever!!!
Delaware Dem,
Your understanding is overly simplistic. The problem is not with overturning state legislatures, the problem is relying on the Eighth amendment to do so.
Those who passed the eighth amendment, you know by actually getting to vote on the issue in a democratic fashion, voted to outlaw things like intended to “enhance” the punishment like torture.
Justice Thomas explained in Baze v. Rees this year: (sorry for the long cut and paste)
“The Eighth Amendment ’s prohibition on the “inflict[ion]” of “cruel and unusual punishments” must be understood in light of the historical practices that led the Framers to include it in the Bill of Rights. Justice Stevens’ ruminations notwithstanding, see ante, at 8–18 (opinion concurring in judgment),it is clear that the Eighth Amendment does not prohibit the death penalty. That is evident both from the ubiquity of the death penalty in the founding era, see S. Banner, The Death Penalty: An American History 23 (2002) (hereinafter Banner) (noting that, in the late 18th century, the death penalty was “the standard penalty for all serious crimes”), and from the Constitution’s express provision for capital punishment, see, e.g., Amdt. 5 (requiring an indictment or presentment of a grand jury to hold a person for “a capital, or otherwise infamous crime,” and prohibiting deprivation of “life” without due process of law).
That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment . “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.
One such “tool” was burning at the stake. Because burning, unlike hanging, was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.
Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72–74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” id., at 92, and involved “embowelling alive, beheading, and quartering,” id., at 376. Thus, the following death sentence could be pronounced on seven men convicted of high treason in England:
“ ‘That you and each of you, be taken to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters, to be at the King’s disposal. And God Almighty have mercy on your souls.’ ” G. Scott, History of Capital Punishment 179 (1950).**
The principal object of these aggravated forms of capital punishment was to terrorize the criminal, and thereby more effectively deter the crime. Their defining characteristic was that they were purposely designed to inflict pain and suffering beyond that necessary to cause death. As Blackstone put it, “in very atrocious crimes, other circumstances of terror, pain, or disgrace [were] superadded.” 4 Blackstone 376. These “superadded” circumstances “were carefully handed out to apply terror where it was thought to be most needed,” and were designed “to ensure that death would be slow and painful, and thus all the more frightening to contemplate.” Banner 70.
Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. By the late 18th century, the more violent modes of execution had “dwindled away,” id., at 76, and would for that reason have been “unusual” in the sense that they were no longer “regularly or customarily employed,” Harmelin v. Michigan, 501 U. S. 957, 976 (1991) (opinionof Scalia, J.); see also Weems v. United States, 217 U. S. 349, 395 (1910) (White, J., dissenting) (noting that, “prior to the formation of the Constitution, the necessity for the protection afforded by the cruel and unusual punishment guarantee of the English bill of rights had ceased to be a matter of concern, because as a rule the cruel bodily punishments of former times were no longer imposed”). Embellishments upon the death penalty designed to inflict pain for pain’s sake also would have fallen comfortably within the ordinary meaning of the word “cruel.” See 1 S. Johnson, A Dictionary of the English Language 459 (1773) (defining “cruel” to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting”); 1 N. Webster, An American Dictionary of the English Language 52 (1828) (defining “cruel” as “[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness”).
Moreover, the evidence we do have from the debates on the Constitution confirms that the Eighth Amendment was intended to disable Congress from imposing torturous punishments. It was the absence of such a restriction on Congress’ power in the Constitution as drafted in Philadelphia in 1787 that led one delegate at the Massachusetts ratifying convention to complain that Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.” 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 111 (2d ed. 1891). Similarly, during the ratification debate in Virginia, Patrick Henry objected to the lack of a Bill of Rights, in part because there was nothing to prevent Congress from inflicting “tortures, or cruel and barbarous punishment[s].” 3 id., at 447–448.”
Early commentators on the Constitution likewise interpreted the Cruel and Unusual Punishments Clause as referring to torturous punishments. One commentator viewed the Eighth Amendment as prohibiting “horrid modes of torture”:
“The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 154 (2d ed. 1840).
Similarly, another commentator found “sufficient reasons” for the Eighth Amendment in the “barbarous and cruel punishments” inflicted in less enlightened countries:
“Under the [Eighth] amendment the infliction of cruel and unusual punishments, is also prohibited. The various barbarous and cruel punishments inflicted under the laws of some other countries, and which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending asunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution.” B. Oliver, The Rights of An American Citizen 186 (1832) (reprint 1970).
So barbaric were the punishments prohibited by the Eighth Amendment that Joseph Story thought the provision “wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct.” 3 J. Story, Commentaries on the Constitution of the United States 750 (1833).”
…Prohibiting those types of punishments is WHAT WAS VOTED FOR. Nothing more nothing less. At no point have we been given the chance through the election of Congressional members to voice our opinion on whether child rapists should have the potential to face the death penalty. We THE PEOPLE are entitled to run this country not unelected supreme court justices.
/gotta do some work, don’t expect replies
Perry,
I said no replies, but i lied.
I certainly do agree the republicans have abused our Constitution as well. For example, the fact that we haven’t declared a war since WWII is the most egregious example that comes to mind and is one of the reasons I can’t fault the court too much for its recent decision concerning unlawful combatants.
Re: sanctity of life. The point is that it doesn’t matter what I think as one person. I am willing to abide by whatever laws our elected legislature chooses to enact. If they get it wrong, we can elect different people to fix it. But when the decision comes from the Supreme Court, we are left powerless.
The system is not perfect but it is the absolute best in the entire world.
/now i’m done
Blah, blah, blah, bc. You are filibustering; moreover, you did not answer my questions about where you stand on the sanctity of life and on the death penalty?
This is a moral issue, bc!!! I frankly don’t care about your Constitutional arguments, because they are not germane to the moral issue concerning state sponsored premeditated murder.
Now please, bc, address the moral issue here!
bc: Thanks for the Althouse link; can’t read all 51 pages now, and I’m not sure it matters. My point, taken from Scalia’s public comments, is that he appears to be saying he wanted SCOTUS to take the case because “enough is enough.” IOW, he had a preferred outcome (not who would win necessarily, but the desire to act to avoid the US looking like a “laughingstock”). I can hardly think of a more hypocritical statement from someone who claims to represent judicial restraint.
“The system is not perfect but it is the absolute best in the entire world. ”
Are you making that claim based on actual study of all the world’s court systems? If so, I’m in no position to argue whether it’s true.
“I frankly don’t care about your Constitutional arguments…”
Q.E.D.
Perry: No offense, but I’m not sure bc’s moral stance is germane to the subject under discussion.
Here’s a quote from Ann Althouse, no wild-eyed lefty, in a column for the WSJ in 2006:
“It is worthwhile to devote some attention to the question of what should be determined by judges and what ought to be left to legislators. But the current fashion of framing substantive issues in terms of activism or restraint can only take you so far — which isn’t very. Those who offer advice about finding the way around judicial activism tend to have substantive preferences that affect which pitfalls they choose to warn you about — and which ones they don’t.”
Al,
I think you are right in someways about the Scalia quote. At best, it was inartful. At worst, it was an example of the kind of logic coming from the SCOTUS that i despise and rail about. That said, however, Scalia’s commentary 8 years after the case don’t necessarily take away from the fact that the court made the right legal decision in 2000. Scalia can be a bit of a hypocrite as he was in the medical marijuana case that I cited above. Up until that case he was all about state’s rights, but he sold those values down the river and voted with the liberal justices to outlaw medicinal marijuana (sort of). People tend to forget that it was the likes of Ginsberg and Stevens that struck down something that most people found was “morally” acceptable.
I guess I was defending the decision, not Scalia’s comments.
/now officially getting back to work
Al, I understand your point about the topic, as well your point about the making of laws and the Constitutional interpretations thereof. You are correct — that’s the way our system works.
In my own mind the moral value, the sanctity of life, trumps both. In practice, the moral issue in this instance (the death penalty) seems to carry little weight, as I know well that I am one in a very small minority.
To me personally the sanctity of life is something approaching an absolute value, therefore I am upset by any breach, whether abortion, offensive war, the death penalty, murder, inadequate basic healthcare availability, insufficient food, …., all issues related to this idea of the sanctity of life.
I agree with Perry that the sanctity of life is absolute. That said, I think the issue should be left to the states and people through their own legislatures to decide.
Sorry, I’m not much on the sanctity of life. It’s an ideal honored far more in the breach than in the observance.
It is a proper role for the court to determine what constitutes cruel and unusual punishment. The majority felt that the death penalty for child rapists violated that standard. You may disagree w/ their finding, but to say they have no role in this case is to say they have no role in applying the US constitution to state laws about matters the constitution explicitly addresses (per above).
For a well-grounded criticism of the majority opinion in this case, check out Dahlia Lithwick at Slate. It’s worth noting that, although she agrees with the decision, she is borderline appalled at the logic Kennedy used to reach it:
http://www.slate.com/id/2193813/entry/2194268/
I think Dahlia is overreacting. Kennedy has used part of his majority opinion to express his concern about imposing on a child the moral choice either to testify or not to testify depending on the relationship of the alleged perp to the child. Although apart from Constitutional arguments, I consider this to be a legitimate and proper judicial concern when the weight of the outcome, especially be it the death penalty, rests on the shoulders of the child victim.
As I stated, I think it is not the best policy, but public policy is a legislative prerogative. The legislature did not suggest that some new and cruel punishment be used, just one already accepted. That takes it out of the eighth amendment. The court decision shows a public policy reasoning about whether it is beneficial or not. That is not their call. BTW I condemned the medical pot ruling and still do. I believe in the 10th amendment.
Madison and Jefferson were right. Marbury opened the door to tyranny. I could live with the court not applying a law because it or its application is unconstitutional. but the courts are substituting their own judgement for the constitution and then twisting some phrase of the constitution into the ruling almost as an afterthought to justify its diminishing the power of the people to determine matters of policy. The founders gave the courts the least power for a reason, it was unaccountable to the people.
Although I generally agree with you, David, I think there are exceptions and this is case is one.
When the lower courts or the legislature are unable to take the moral high ground, it falls to the SCOTUS to do so.
The death penalty represents a moral issue that needs to be addressed from a judicial standpoint, because the judiciary has the last word by legal default, i.e., the judiciary has the ultimate responsibility.
Kennedy was trying to agonize his way through this dilemma, a dilemma for which the Scalia types are constitutionally bereft by nature, or so it seems.
“Madison and Jefferson were right. Marbury opened the door to tyranny.”
I can never tell whether you’re a pragmatist or an idealist. You of course realize we’re not going to overturn more than 200 years of jurisprudence. Outside of conservative circles, there’s no support for any such drastic change.
I agree with Al about Marbury, which actually set the stage for the judicial review powers of the SCOTUS.
Far from tyranny, judicial review constitutes the exercise of the balance of powers, a strong point in our system of governance, in my view. It represents a permanent back and forth process between the three branches aimed at refining and updating our laws and governance practices.
I agree with you that Marbury is settled law. You just asked my opinion of it. As I said I can live with judicial review, just within the proper bounds.
Don’t be confused; I am both pragmatic and ideological. I am not advocating a reversal of almost 200 years of judicial doctrine.
“The legislature did not suggest that some new and cruel punishment be used, just one already accepted. That takes it out of the eighth amendment.”
The question is: is it “unusual” to apply the death penalty to child rapists?
By your logic, executing someone for jay walking by, say, lethal injection would be constitutional and it would only be a social policy objection for the Supremes to reject it.
If one person is not singled out but it is generally applied by definition it is not unusual. Unusual would be if the normal punishment for jay walking is a $25 fine and the judge wants to throw someone in prison for 5 years.
Dana, you make a joke of the legislative process. The people have for 400 years in this country not made a joke of our laws that way. If for some reason it happened that there was a mass hysteria to pass death to jay walkers, no one would consider it worth jay walking until it were repealed. There is also jury nullification to deal with unjust laws being applied to individuals and it was used to great effect to keep the underground railroad movement from being crushed by the Missouri Compromise and the Compromise of 185x. It is an inherent right even though judges would love to usurp it to themselves. Fortunately the system is set up so no one can stop it. The way they interfere is by trying to prevent attorneys from informing juries of their rights.
“If one person is not singled out but it is generally applied by definition it is not unusual….If for some reason it happened that there was a mass hysteria to pass death to jay walkers, no one would consider it worth jay walking until it were repealed.”
I guess this is a difference between us. I believe that the punishment should fit the crime; you seem to think that the punishment need only have a sizable majority to make it fit. I believe in natural law; you seem to be some kind of socio-political relativist.
I say that if 98% of the citizenry agreed that jaywalkers should be put to death, then the 2% of the dissenters would be correct. Nothing about jaywalking augurs of death as a consequence. It is an unnatural relationship between offense and consequence. But to you it seems that all that is required is widespread agreement, an agreement which could change as you amit: “…no one would consider it worth jay walking until it were repealed.” Personally, I can’t accept how something can be true or untrue, just or unjust, merely on the fashionable view of the moment.
But, hey, that’s me. I’ve been w/ the founders of the USA on the natural basis of just human law. I probably am a throwback on these matters.
Right, Dana!
There is a constant effort to try to make the punishment fit the crime, and considerations of moral values are part of this debate.
We attempt to codify these moral values into our laws and ultimately into our interpretations of the Constitution.
For this reason I have no problem with Kennedy or anyone else struggling with these moral issues in order to render decisions on the laws.
However, and here is where we disagree, when the “fashionable view of the moment” persists for some years with increasing acceptance, then this new moral value needs to be taken into consideration regarding our jurisprudence, in my view. Even natural law is not absolute, because it is subject to individual perception, this relativistic.
Both Presidential Candidates disagree with the ruling. So did 4 justices. I don’t think that it is reasonable to say that the Supreme Court was upholding the general view of Society. It is a an imposition not a holding of common values.