Keith Devens .com

Out of control? This seems to me like a step in the right direction. What other (democratic) countries still kill their own people?

You're missing the point. It's not about what "other countries" or "most states" or "the trends" say. It's about the law and the Constitution, which the Supreme Court is duty-bound to uphold.

According to the US 8. amandment:

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

You don't think death is a cruel or unusual way to be punished?

Remember: The US constitution - like most other countries' constitutions - was written a long time ago. It should't be forbidden to take a step back, think about some things in the law according to the time we're living in right now - and have a second thought. Taking such measures is a wise thing, IMO. Four hundred years ago, there was a death penalty if one believed the world wasn't flat, too.

And - in any case; I believe that the supreme court is indeed the supreme court in the US. Who else should decide what is right and what is wrong?

You don't think death is a cruel or unusual way to be punished?

You're missing the point again. It doesn't matter what I think. It matters what the law says. That's the whole point of a democracy -- that we're governed by laws made by our elected representatives and not by the will of a handful of unelected judges.

The US constitution ... was written a long time ago. It should't be forbidden to take a step back, think about some things in the law according to the time we're living in right now - and have a second thought.

The Constitution should "think about some things"? What does that even mean? Regardless of your strange personification of the Constitution, you should take a moment to read it. It has a democratic process by which it can be amended. Judicial fiat is not it.

Who else should decide what is right and what is wrong?

5 unelected men and women should decide what is moral for an entire nation of people? Your contempt for democracy is frightening.

First of all. If you put "moral" right next to killing people, there's nothing else to discuss; serial killers are people having problems with moral vs killing people.

Second. Hasn't the LAW ever been changed in the US? Should a LAW never be changed? What about the law I was referring to? The one that said that the world was flat, and that everyone who believed otherwise should die? Haven't that law been changed? Should ALL laws be static? Shouldn't ANYTHING be allowed to think about?

Third. It does matter what you think. You are a part of the democracy. A democracy hundreds of years ago thought about things then, and wrote it down. The funny thing is that they wrote the thing about how people should be punished, I refer to the eight amandment. Isn't that one of your laws? Does the supreme court's decision clash with that amandment?

Besides, the rest of the world (if you've ever read European press) don't think about USA as very democratic these days.

do we really want to put ourselves in a category with Iran, Pakistan, and China as the only countries to kill young offenders? Seems barbaric to me.

Hasn't the LAW ever been changed in the US?

Yes, like I said, we have a democratic process for doing that.

The funny thing is that they wrote the thing about how people should be punished, I refer to the eight amandment.

Well, not quite. They gave very general guidelines as to what not to do. And they surely didn't consider capital punishment to be "cruel and unusual", since they had it back then.

Besides, the rest of the world (if you've ever read European press) don't think about USA as very democratic these days.

Funny, if Kerry had been elected I bet you and "the rest of the world" would have no problem with our democracy.

do we really want to put ourselves in a category with Iran, Pakistan, and China as the only countries to kill young offenders? Seems barbaric to me.

Heh, where'd you get those talking points from? I heard the same thing from someone on the radio.

What is all this disdain for international human rights law about anyway? It's not like we, as citizens, would somehow lose out if our government stopped torturing and killing people. Really.

I wasn't very pleased with Kerry either. He is just a lazy corporate toadie like the current white house resident. How do you think he raised so much money in the primaries anyway?

What we need in this country is a system more like what the Swiss have. Every three or so months nearly all the new laws are voted on by the people. And the minister-presidency is a post rotated yearly among a council. That's real democracy.

What is all this disdain for international human rights law about anyway?

What's with people not understanding that this isn't about the death penalty?

It's not like we, as citizens, would somehow lose out...

I'll repeat Power Line's comments:

The Court has appropriated from the American people the role of social arbiter. Thus, it strikes down longstanding policies and practices adopted through the democratic process on the grounds that five or more Justices personally don't approve.

In short, we're subjected to the arbitrary will of a handful of unelected people. To me that seems to be the very definition of tyranny.

not a talking point sir. a fact.

The court is out of control. If you want to do something about it, go to voteforjudges.blogspot.com.

not a talking point sir. a fact.

You do realize, of course, that that has precisely zero relevance to U.S. law?

the entire point of the decision was that they took international precedence into consideration--there's is no need to type comments in such a condescending tone--it is simply unnecessary. you run a good blog-don't ruin it with your egocentric remarks.

the entire point of the decision was that they took international precedence into consideration

Yes, and that's a travesty of constitutional law. Also, I'd say that they didn't really base their decision on international precedence, but merely on their own preferences, and then looked to justify it based on everything from perceived state trends, contradictory psychological testimony, and international treaties that the US didn't even sign onto.

Justice Scalia's dissent is well-written, as always, but not quite as well-reasoned as the majority. The line of argument against the majority decision, as I understand it, is that it is unfair to take away from the people (i.e the 18 states with the juvenile death penalty) the right to enact laws as they see fit. In other contexts, however, no one would have any problem with this type of ruling. For example, the First Amendment protects free speech. About 15 years ago, the court ruled that it was "speech" to burn a flag. Some states disagreed, and had laws on the books that prohibited burning a flag. Upon a determination by the court ("nine old men and women in robes") that such action was in fact speech, those laws were ruled unconstitutional (See Texas v. Johnson).

The Roper case is really no different. The court has determined that execution of juveniles is inconsistent with the Eight Amendment's ban on cruel and unusual punishment, and therefore laws that are inconsistent with that interpretation of the Eighth Amendment are unconstitutional.

The court has always been charged with interpreting the Constitution, and, as a result, it is always possible to characterize any decision they make as merely the opinion of five people trumping the democratic process. In a way, that's the point. The democratic process is imperfect, and can, at times, lead to laws that are simply unfair and out of sync with a civilized society (slavery, segregation, women's right to vote, etc.). Whenever the court hands down a decision that is popular on the left, the right cries foul - "tyranny of the court," they say. Whenever the court hands down a decision that is popular on the right, we cry foul - "tyranny of the court," we say. (One of my personal favorites: In Lopez, the court struck down a federal law that provided for enhanced punishment of felons who bring guns near a school. Talk about hijacking the democratic process!)

Moreover, such a decision is particularly appropriate in the context of the Eighth Amendment. The Eighth Amendment is the one amendment whose standards of implementation are explicitly called to change and evolve over time (see Trop v. Dulles, in which the court determined that Eighth Amendment cases ought to be decided in light of evolving standards of decency).

Finally, I think it is a little unfair to characterize the court's decision as relying on international law - it didn't. Eighth Amendment cases in this context are generally decided by a two-part test: first, what are the legislatures of the states doing (state-counting); second, what does the reasoned judgment of the nine justices dictate.

In Roper, the court first noted that a majority of states prohibit the practice (including those who outlaw the death penalty altogether), and, more importantly, the direction of that prohibition has been uniform; every state addressing the issue has gone from permitting the practice to prohibiting it. None have gone from prohibition to permission. This was informative in discerning a national consensus.

Secondly, the court brought its own judgment to bear, as it does in EVERY case before it. That is, the court attempted to determine if executing juveniles is proportional to the crimes they commit (proportionality has long been a cornerstone of "cruel and unusual" jurisprudence). The court noted international practice, psychological studies, etc., and five of the members were of the opinion that 16 and 17 year-olds are not as morally blameworthy for their conduct as adults, and it is therefore inappropriate to submit them to society's harshest punishment.

You can disagree with the opinion (as Scalia did), and outline an intelligent and thoughtful counter-opinion (as Scalia did), but to suggest that it was some sort of sham, or mockery of the court and the constitution (as Scalia did), is unfair and inaccurate.

Nice to see someone bring precedent and reason to bear on this debate. thanks

Whenever the court hands down a decision that is popular on the right...

Heh, when does that happen?

Anyway, what you leave out is that just 15 years ago, the court ruled exactly the opposite. The Supreme Court's job is not to take a poll and go which way the wind blows. It's absurd to argue that something is suddenly "cruel and unusual punishment" and that there's somehow a "national consensus" on the matter when the Court ruled just the opposite only 15 years ago, and when almost 2/5ths of the states in the Union support the practice. It's much more plausible to believe that 5 members of the court merely followed their personal political agenda rather than that this was a decision made purely on legal grounds.

...lead to laws that are simply unfair...

What's unfair^[1] has to be defined by the Constitution...

The democratic process is imperfect, and can, at times, lead to laws that are simply unfair and out of sync with a civilized society (slavery, segregation, women's right to vote, etc.).

That's wrong. The end of slavery and a woman's right to vote were decided by the electorate in the form of Constitutional amendments -- in fact, the court was famously wrong in its Dredd Scott decision when it upheld slavery. Segregation was later decided upon by the Court on the basis of the 14th amendment, not on some abstract notion of what a "civilized society"^[2] would permit. It's up to the electorate to judge that (i.e. how they want to live), not unelected judges.

However, Brian, I would like to commend you for actually addressing the topic of discussion, which many people are simply unable to do. For that you have my sincere thanks and respect. Thanks for your very intelligent post.

Footnotes:
[1]: For instance, what if the judges argue, as many people believe, that it's "unfair" to not have a welfare state, or to not tax the rich more? What if they decide to rule a flat tax unconstitutional on those grounds? Your criteria are much too permissive, and followed consistently, divorce the court's decisions from the law and the democratic process (which, unsurprisingly, leads you to find this decision acceptible)
[2]: As Scalia pointed out, the US is out of sync with most of the "civilized world" on abortion, yet the court is in no hurry to restrict "abortion rights" to match. Not to mention that the court itself has in the past followed psychological testimony that directly contradicts the testimony it used this time for deciding whether those under 18 were morally competent to make the decision to get an abortion.