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Let's play, "Count the Usurpations."

Today the Supreme Court ruled that the Eighth Amendment to the Constitution forbids capital punishment in all non-homicide crimes, excepting a couple specific “offenses against the State” like treason. The immediate case in question involves the horrifying story of an 8-year-old Louisiana girl viciously raped by her stepfather, who was subsequently convicted and sentenced under a recent (1995) statute which allowed prosecutors to seek the death penalty for the crime of aggravated rape of a child. That statute, along with all others like it, is deemed by the Court unconstitutional.

To get to this conclusion, Dear Leader Mr. Associate Justice Anthony Kennedy begins with a rather striking paragraph:

The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment proscribes "all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive." Atkins, 536 U. S., at 311, n. 7. The Court explained in Atkins, id., at 311, and Roper, supra, at 560, that the Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U. S. 349, 367 (1910). Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that "currently prevail." Atkins, supra, at 311. The Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). This is because "[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change." Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting).

Depending on your view of the Incorporation Doctrine, there are 5 or 6 usurpations of legislative authority in that one paragraph.

The opinion goes down here from there, as Redstate’s Dan McLaughlin demonstrates. Justice Kennedy should be impeached.

Comments (20)

Did you ever notice how they scrupulously follow, preserve, and extend the applicability of the worst precedents and ignore or overturn any that are better? Stare decisis is indeed a malleable doctrine and can be used (or ignored) for any purpose one likes.

Were I a governor, I would order and effectuate the execution of a child rapist, in defiance of the ruling. Let the Court come. How many divisions hath the Court? Either the Constitutional architecture provides for checks and balances, or it provides for a de facto empire of jurists - a juristocracy.

And I really think we conservatives need to stick to this point about usurpation. It's true that following constitutional structure isn't everything and isn't a guarantee that things will be done right, but it has a value in itself, IMO, that we should not simply be ruled by the nine men in black. What was teh point of the founders' setting up a system of checks and balances if it isn't going to be followed and if conservatives are going to greet usurpations with a shrug?

I have a recuring dream where Ginsburg is driving Kennedy to Taco Bell in a Geo Metro when Ginsburg inhales a fly and, gasping, veers into the opposing lane and both are obliterated by a cement truck. Nobody notices.


While offering no commentary on the case itself, I will agree with you that justices should be impeached for continual poor judgement. While I wouldn't make Kennedy my poster child for such an action, you would think there has to be some judge out there that most every reasoning human being could agree is worthy of a mulligan.

Not that it will make a whit of difference to anyone but myself, but I have never been more enraged by a court ruling, ever. Is any more evidence really necessary to demonstrate that America is not a free country in any morally meaningful sense of the word?

Lydia, I'm of the considered opinion that stare decisis is a piece of positivist piffle. It is a dead, meaningless formalism into which the jurist pours his chosen ideological intoxicant.

"I'm of the considered opinion that stare decisis is a piece of positivist piffle."

Isn't this also true of American jurisprudence? Law itself is a tool for the despotic ideologue. The constitution is dead; or at least on its last, gasping breaths.

Is any more evidence really necessary to demonstrate that America is not a free country in any morally meaningful sense of the word?

Define "free".

If by "free" you mean rights conveyed by a certain set of claims; then is it even possible for people to be "free" in the genuine sense of the word or a "free" country to even exist in the first place when you consider that there will be other sets of competing claims set forth by other individuals in their definition of what "free" is?

Moreover, what do you mean "in any morally meaningful sense of the word"? You're assuming that "free" would also, in turn, mean "moral"; however, this is not actually true.

The disciples of death (i.e., abortion) would argue that freedom entails the freedom to choose.

Left to their own devices, without the aid of moral precepts and Natural Law, the darkness that "free" would actually allow for such individuals is a freedom the citizenry can do without and a "free" country we shouldn't be working towards.

I suppose, Maximos, one could argue that the truly radical originalist (and originalists are sometimes _called_ "positivists") would reject stare decisis and consider himself bound to overturn any wrong precedent whatsoever. In a sense it is a cludge or a bowing to circumstance that has been welded uneasily onto a pure originalism. The originalist who also subscribes to stare decisis says, "I realize that this earlier decision was wrongly decided, but it isn't worth upsetting the apple cart at this stage of the game." I'll admit that I mind someone's doing that much, much more when I think it is _very important_ that we upset the apple cart (as in the present case in the main post, where this new precedent clearly should be overturned, or of course in the case of Roe v. Wade) than when (as in the case of, say, permitting the printing of paper money) it is not a matter of life and death. For which distinction, no doubt, there are some people who would call me unprincipled. But in any event I'm probably not being "positivist" enough if I allow any room whatsoever for stare.

I can't say I completely follow your objection, aristocles, but I really don't think I think what you think I think. A very short verson of what I mean by morally meaningful freedom, as applied to society at large, is the ability of a people to order itself in accordance with the Good, to the extent and in such was as their reason may guide them in that pursuit. I don't assume that the words "free" and "moral" mean the same thing, which is why I distinguished morally meaningful freedom from the other sort.

Again, I'm quite sure I've been misunderstood, and I'm a bit puzzled by it. Perhaps I expressed myself ambiguously, but surely I said nothing to suggest that freedom as such is an absolute good.

The way one measures "evolving sense of decency" is by seeing what sensibilities are being manifested in law. In Louisiana, child rapists are toast. So, that's where it's evolved in Louisiana. Justice Kennedy disagrees. But his ground for overturning the law must then, ironically, be the non-existence of the law. But it exists, so he has no ground to overturn it. Yet, he did so anyways. That seems indecent.

Ah, but Frank, didn't you know? It's not the law in Louisiana that sets the "evolving sense of decency" for the entire country. It's the law in Washington, D. C. Or perhaps New York City. And I'll bet child rapists aren't sentenced to death there. Justice Kennedy gets to pick what region of the country to take his "evolving sense of decency" from.

Or, as in the Roper ruling, he may just go ahead and pick another country to take his "evolving sense of decency" from. The man is a disgrace.

I can hear senses of decency evolving in law schools around the country even as we speak.

Touche', Lydia!

BTW, Kennedy holds the Bork seat on the Court.


FWIW, even though I am, generally speaking, anti-death penalty I think this ruling will be far more troublesome in the long run than the possibility that we'd allow execution for child rapists.

I certainly have no problem with "cruel and unusual" being a fluid concept that does not need to be frozen in 18th century America. I also have no problem with standards of decency evolving. Seems the issue is who gets to judge if a standard is sufficiently evolved to pass Constitutional muster?

As a thought experiment, suppose the standards of decency in Louisiana evolved to the point that stealing any item worth more than $50 incurred the punishment of amputating finger. Would the Court be overstepping its role in finding that punishment cruel and unusual if it felt Louisiana's sense of decency hadn't evolved enough?

Let's _definitely_ freeze "cruel and unusual punishment" in 18th century America. Even if it means allowing states to bring back the pillory.

The combination of the stocks and a rotten cabbage sounds appropriate for some misdemeanors...

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