Tuesday, March 01, 2005

Time for 5 certain people to kiss the gunner's daughter

I know five certain people who should be made to kiss the gunner's daughter for an absolutely outrageous act.

I refer to the five so-called "justices" of the U.S. Supreme Court who, just today, decided that certain states' death penalty statutes applicable for people who committed their crimes when younger than 18 years old is somehow unconstitutional. This only a decade or so after holding that it was constitutional. This betrayal of republican democracy, otherwise called the opinion, can be found here: Roper v. Simmons, 543 U.S. ___ (2005).

My beef is not so much with whether, as a matter of policy, states should or should not hand down capital sentences to people who were juveniles at the time they committed their crimes. My beef is that such a decision is for the elected representatives to make.


Five people, five unelected and wholly unaccountable to the citizenry people, have decided what our national policy should be. Doesn't anyone find that in the least bit scary?

And what was their basis? The blackguard Justice Kennedy cited, of course, the Eighth Amendment and its proscription against cruel and unusual punishment. But how is something that wasn't cruel and unusual before suddenly so now?

Kennedy cited our evolving standards of decency. But THAT'S NOT HIS JOB to be the moral and final arbiter of our standards of decency! That's what we have legislatures for!

Kennedy then cites ad nauseum the studies of juveniles and their mental and emotional capacities and abilities, all of which would make for a wonderful committee report to a legislature. "The susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult,'" Kennedy writes. That's as maybe, but it is no business of a court's! You weren't elected, so you don't get to make these value judgments!

Kennedy then goes on to state that "[i]t should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty. . . ." So, is what you're saying that the policy of other states, even a majority of them, should now of necessity be binding on the rest, absent the constitutional mechanism put in place for achieving that dominance, otherwise known as the amendment process? Of all the unmitigated gall!

Finally, in Part IV of his opinion, Kennedy commits the most heinous act. He looks to the laws of other countries to decide our own. "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. . . ." No, it is not proper! The laws and policies of other countries, other government, do not and should not influence ours, especially when those laws and policies are rendered by a body that does not have the constitutional authority to makes those decisions.

Then Kennedy has the gall to say: "The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." No, it doesn't; YOU DO! And therein lies the way to tyranny, when unelected people can make the laws.

I strongly urge everyone to read Justice Scalia's vigourous and well-written dissent. He says everything I have just written, only in greater detail and better.


Carmen said...

I can't believe you, and other people who bitch and moan about "judicial activism," can't appreciate the beauty and genius the is the judical check on legislative authority. The whole point of the judicial branch of the U.S. government is that the justices and judges are immune from the political process. I'm as big a fan of the democratic process as the next person, but your argument for legislative policy completely overlooks the fact that the American political process is far from a model of (lowercase) republican perfection. I am quite comfortable with allowing our national policy, as set by the state and federal legislatures, to be subject to review and analysis by nine highly intelligent, highly experienced jurists, who don't have to worry about financing their next campaign or pissing off a righteously indignant majority. Our system allows those justices to view the entire body of national policy and jurisprudence with relative political objectivity (personal subjectivity is always a factor in policy-making, in the legislature as well as the judiciary). And the courts are quite limited in their policy-making ability, since they cannot originate any policy but must wait for legislative actions to come before them for review. I am far more comfortable with this system, in fact, than I would be with a system in which the final, unreviewable say rests with our elected officials. In the best case scenario, that would lead to the tyrrany of the majority the Framers sought to avoid. In the worst case scenario, that would lead to an oligarchy comprised of the two viable political parties and their major funders.

M0NKEYDOG said...

Carmen, we might just agree on everything!

Thank God we haven't reached "the worst case scenario, that would lead to an oligarchy comprised of the two viable political parties and their major funders."

Wouldn't want that to happen!

Boatswain's Mate said...

It is not the province of the judiciary to set national policy. Read your Constitution. It does not possess that authority.

Nor should it. As I said, the decision based on five unelected people's personal whims and fancies that you cheer today will be the one you rue tomorrow.

Leave policy making up to those who have to stand for election and can face the wrath of the voters if they choose wrongly.

M0NKEYDOG said...

How is the ruling "setting policy"?

I thought the supreme court overturned legislation all the time, based on interpretation of the constitution...

It seems to me, if one agrees w/ a ruling, it's "interpreting" and if one disagrees (not that I am saying you support executing teenagers), then it is "legislating from the bench"?

Brown v. board ... is that activism or is it the court applying its necessary check on something that was unconstitutional?

How is this decision different? Or is it?

Carmen said...

To protect the integrity of the Constitution and the rights we are guaranteed, there has to be a process of review for legislative decisions. If you leave it to the political process to correct wrong decisions, even assuming that the political process is not manipulable by saavy marketing teams, then every aspect of the Constitution could be re-written by a simple majority. Or a plurality in cases where more than one candidate runs for an office. What happens to the rights of the disfavored minorities then? What happens to the politically unpopular ideas that our Founders sought to protect? What about all those pesky rights given to felons, immigrants, children, and other people who can't vote to protect their own interests? Should they just hire themselves a good photographer and hope they end up as the poster child at next year's charity ball?

Boatswain's Mate said...

>To protect the integrity of the Constitution and the rights we are guaranteed, there has to be a process of review for legislative decisions.

I never said otherwise. But these statutes had just been reviewed 15 years ago. The Constitution hasn't changed that I'm aware of. The statutes in question hadn't changed, become more draconian or some such, that I'm aware of.

All that happened is that the Court, through the action of five unelected, unaccountable people, changed its mind. They had no constitutional basis on which to switch gears, only "evolving standards of decency" and what the Europeans do.

They made a policy decision, not a legal one. And that is not the Court's perogative.