My Photo

« The BBC may have inadvertently turned the tables | Main | Parsing the Social Security debate »

Comments

Mark Amerman

It isn't the business of the U.S. Supreme Court to decide
whether or not 17 year olds should be executed. This is
the business of the U.S. Congress or even more appropriately
the state legislatures, all of whom are elected.

Supreme Court justices are not elected nor are they, except
theoretically, accountable. Supreme Court justices are
given enormous power but that power, according to the Constitution,
is limited to upholding the Constitution -- which for the
most part is about limiting the power of the federal and state
governments.

When the Supreme Court goes beyond its authority then it
creates a sort of tyranny; it certainly isn't democracy.

Or course there are many who do find democracy inconvenient
or who would like to do an end-run around it when it doesn't
give the "right" results. Expanding the accepted power
of judges is their standard ploy.

If one accepts that it is legitimate for the Supreme Court
to find executing 17 year olds unconstitutional -- a limitation
on the power of the states that is definitely not in the
Constitution -- then one should accept almost any ruling
of the court as legally valid: that is an arbitrary, vast,
unaccountable, and undemocratic power.

Leif

The Constitution explicitly bans punishment that is "cruel and unusual," and the interpretation rests on the Supreme Court. As I point out, I am not entirely convinced that the death penalty is any more cruel or unusual for one age or another, but the Supreme Court has long since decided that age is a factor.

Mark Amerman

Leif,

The relevant text is the eighth amendment to the Constitution, quote:

"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted."

And what does that mean? Can't it be argued that capital punishment
at any age is a "cruel and unusual" punishment? Can't it be argued
that imprisonment itself is a "cruel and unusual" punishment?

The fact is the language is vague enough to allow all these
interpretations and many more. But we know this wasn't the intent of
the people who wrote this in the first place because, for example,
at the time and for many years afterword it was not uncommon for
these same people to execute people for stealing.

We do know that what "cruel and unusual" actually meant to the people
who wrote and voted for the eighth amendment. It meant things like
the following (which was a practice under english law):

"The penis and testicles were cut off and the stomach was slit open.
The intestines and heart were removed and burned before them. The
other organs were torn out and finally the head was cut off and
the body divided into four quarters. The head and quarters were
parboiled to prevent them rotting too quickly and then displayed
upon the city gates as a grim warning to all. At some point in this
agonising process the prisoner inevitably died of strangulation and/or
haemorrhage and/or shock and damage to vital organs."


We know what the original intent of the eighth amendment was. We may
not to the last decimal place, but it clearly didn't apply to executions,
seventeen years old or not.

So where does that leave us? If we ignore the original intent and
context the eighth amendment can be interpreted any way the Supreme
Court justices please.

But should they be doing that?

And what about the rest of the Constitution? Isn't it after all a
description of a democracy? Why in the world should the Supreme Court
be making this value judgement and denying the judgement of the elected
representatives of the people?

Shouldn't that be an action taken only in extremity?

The comments to this entry are closed.

Nordic perspectives

Web resources

General rolls