Jophiel wrote:
gbaji wrote:
1. There's no constitutional basis here. Ok. Right to life. But since the death penalty in general isn't considered a violation of the constitution (not yet anyway), the concept of it being "cruel and unusual" is totally invalid.
Nonsense. Kennedy et al ruled that capital punishment for rape is a punishment which exceeds the scope of the crime, hence making it cruel & unusual.
Which is inconsistent with the original concept of "cruel and unusual" punishment in the Constitution. That label is supposed to be universal and based on the form of punishment, regardless of the crime. Impalement is "cruel and unusual". Gouging out someone's eyes is also cruel and unusual. As it cutting off someone's hands, or breaking their fingers, or cutting them all over their body and covering them with salt. That's what the writers of the Constitution were talking about when they said that punishments could not be cruel and unusual.
They were *not* talking about whether the punishment fit the crime. That's a completely different aspect of judging a punishment. And the only original constitutional basis for arguing that aspect is that the constitution guarantees a "right to life". Thus, the death penalty is itself an imposition on that right and can (and should) be restricted to crimes deemed to justify it. Unfortunately, as the court has gotten more liberal, it's changed this definition. Only after the late 1970s does "cruel and usual" become applied in this manner (whether the punishment fits the crime). So it's somewhat circular to apply this new "invented" definition and use it as support to keep extending it even more.
I'm not at all suggesting that ruling against it on the right to life angle isn't valid all on it's own, in an "eye for an eye" kind of way. You can certainly make an argument that the only crime that can justify losing one's right to life would be one in which you took someone else's. I'm simply pointing out that the other reasons you listed just plain aren't valid arguments IMO.
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2. When addressing that degree issue, he's doing it wrong. You don't look at how many states have what laws to do this.
That wasn't the only factor.
Doesn't matter. The fact that he included it in his decision can (and will!) be used by future courts as precedent. He's basically saying that the US Supreme Court can rule on the constitutionality of a state law by looking at whether other states have made the same law or not and using that as a factor in their decision. IMO, that's absolutely wrong. Either the law is constitutional on its own merits or its not. This implies that the Supreme Court should take its cue from some kind of popular opinion aspect of a case.
I just think it's incredibly weak. It's an abrogation of responsibility. I also personally believe it's indicative of the growing lack of a strong sense of directionality and basis for constitutional decision. This is something that Conservatives have been arguing about for some time. As the Court has become less strict in terms of judging cases on the Constitution, and has begun to rule more frequently based on the political climate of the moment and what "seems right", they no longer have that firm foundation to operate on. When that happens, the Court will start looking outside itself and the document it's supposed to be operating on for justification on rulings. I believe that Kennedy's opinion reflects this.
There's just no reason for this court to be looking at how many states have a given law and using that number in any way shape or form when making a decision. But then, we can look back to cases like Roe v. Wade to see this pattern starting. This is just yet another in a progression that's essentially destroying the purpose of the court itself. It's no longer about whether some action violates the Constitution. And that's problematic...
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Makes you wonder about that guy sometimes...
Talk to Reagan
/shrug It's what happens when you have an often adversarial process used to appoint justices. It's not uncommon to have the need for a compromise appointee result in someone a bit "flaky" like Kennedy sitting on the bench.