How Unusual
Instead of a Second Amendment case, the big decision handed down was about the Eighth Amendment.
The Supreme Court, in another 5-4 faultline decision, banned the death penalty for child rapists. Justice Kennedy (natch) wrote the decision. The legal question isn't whether the death penalty is good or bad policy to deal with this crime, but who gets to decide.
There are many who say it's none of the Court's business. Particularly originalists, who say as long as the punishment isn't "cruel and unusual" by 18th century standards (where they had the death penalty for most felonies, I've heard), the people get to decide.
On the other side are those who claim the Eighth Amendment requires evolving standards. Like this interpretation or not, it is the law of the land--unless the Court changes its mind.
Two questions, one for both sides.
Part of Kennedy's rationale is most states don't allow the death penalty for rape, thus this is part of the evolving standards issue. But don't states get to decide their criminal code? Are you saying if enough states go in one direction, it forces all the other states to follow? What happens to a state's sovereignty?
As for originalists, let's say your theory is right, and we're only allowed to use the words of the Eighth Amendment as they were understood by the Framers. Well, at what level of abstraction? They don't list particular punishments, but instead use the fairly vague phrase "cruel and unusual punishment?" Why should this only mean what they in particular thought was cruel and unusual, unless you figure they thought penology would never change, though it had changed in the past. In other words, if the original men who wrote and passed the Constitution had enough foresight to figure crime and punishment would evolve--and why wouldn't they--wouldn't it be "originalist" to assume the terms in the Eighth Amendment should be followed using an evolving standard?
posted by LAGuy @ 12:56 AM
4 Comments:
Weak on the originalist side there, LAG. They did take the potential for changing standards into account. Look under the provisions for amendment.
Someone who might be ColumbusGuy's Ghost.
Why can't they have taken into account changing standards through both amendment provisions and vague language. (After all one is much harder than the other) or did the framers have tunnel vision making it impossible for them to address an issue in more than way?
Kind of hard to see originalism (or other constitutional philosophies) as much more than window dressing to hang onto justifications of the justices' personal policy preferences.
I think you have made a good argument that the general language of the founders (cruel & unusual) invites an evolution of the meaning ofthe terms. I think the founders were not so much thinking of current methods of punishment falling out of favor (as too cruel?) as they were concerned about the inventive human mind devising new methods of punishment (that would be unusual).
Nevertheless, even originalists don't seem to deny that punishments that were common in 1791 (flogging for example) are deemed torture and too "cruel" today. So I don't see how originalists can object on principle to the S.Ct. finding one punishment or another too "cruel" by modern standards. My brief review of Kennedy's opinion and Scalia's dissent suggests the real dispute is that Kennedy hardly explained why the death penalty is anymore "cruel or unusual" when applied to a child rapist than when applied to a murderer or someone who commits treason.
DenverGuy's point is a good one. There are obvious cases where the penalty would be cruel, even though historically acceptable: e.g. death penalty for stealing food. So you're drawing a line between which crimes it's cruel&unusual for, and for which crimes it isn't. There's nothing philosophically unique about murder and treason. Murder alone, maybe, would have the advantage of Hammurabi-esque symmetry, but once you add something else, it's got to be an exercise in moral judgment of "worse" crimes.
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