Justice Stevens Fires a Shot Across the Bow

[Brown]

In the death penalty (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-633&friend=nytimes) case decided today, there is an interesting concurring opinion by Justice Stevens, joined by Justice Ginsburg.

First, a little background. At issue was the effect of the Eighth Amendment (prohibiting cruel and unusual punishment) to minors, and in particular, whether the death penalty may be constitutionally imposed against an offender under the age of 18. In a 5-4 decision written by Justice Kennedy, the Court held that the death penalty cannot be constitutionally imposed upon a minor. Justice Kennedy's opinion made repeated reference to "evolving standards of decency" that bear upon whether punishment is cruel or unusual.

Now, a little more background. Justice Rehnquist is on his way out, and there is already buzz about Bush naming a Supreme Court justice (as well as a new chief). Bush and cronies, and some current members of the Court, seem to place high value on the original intent of the framers of the Constitution. They basically take into consideration the circumstances back in the 18th Century and applying the reasoning to the 21st Century, even though circumstances can be dramatically different. If a majority of the Supreme Court were to apply this philosophy, it would be a major step backward in American jurisprudence.

Against this background, Justice Stevens has fired a shot across the bow of those who would like to turn back the clock. The concept of evolving principles, he urges, is not merely limited to the Eighth Amendment. It extends, he says, to the Bill of Rights, and to the Constitution as a whole:Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. ... The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day--Alexander Hamilton, for example--were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court. In all events, I do so without hesitation. (emphasis mine)

[TillEulenspiegel]

So much for the "Strict Constructionist" view of the constitution.

[Skeptic]

If great lawyers of his day--Alexander Hamilton, for example--were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court.

"You don't have to worry about judges deciding according to their personal opinion and claiming that it would have been the intention of the founders! And that's not just my personal view--Hamilton would surely have agreed with me, if he were alive today!"

[Brown]

Originally posted by Skeptic
"You don't have to worry about judges deciding according to their personal opinion and claiming that it would have been the intention of the founders! And that's not just my personal view--Hamilton would surely have agreed with me, if he were alive today!" Yeah, the Alexander Hamilton remark at first seems to be a little out of place. But if you read further, you find that the remark is in reply to the opening sentences of Justice Scalia's dissenting opinion, where he asserts the Hamilton would have agreed with him:In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. (emphasis in original)Justice Stevens, by saying "Alexander Hamilton, for example," is tweaking Justice Scalia, in effect saying, "You think Hamilton would side with you? I think not."

When the justices write their opinions, they circulate drafts among themselves so that the others can see them. The context of the Hamilton remarks indicates that Justice Scalia was the first to invoke his name (the opening lines setting the theme for his dissent), and Justice Stevens invoked Hamilton's name in reply. Justice Stevens's opinion appears first because by convention concurring opinions appear before dissenting opinions.

[Brown]

One wonders, by the way, whether Justice Scalia will have as much deference for precedent in the Ten Commandments cases. In the death penalty case, he talks about the Court being bound by earlier precedents, and seems to think it important that the earlier precedents were fairly recent ... but the Commandments cases seek to have the Court overturn one or more recent decisions.

In the Commandments cases, the parties seeking to post the text assert that the Commandments serve as the foundation for American law. In 1980, the Supreme Court hit this issue head-on, and saw its decision as an easy one:The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."
...
The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5: 6-15.

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. ... Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause. Stone v. Graham (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=449&invol=39).

[NoZed Avenger]

Disband the legislatures now -- federal and state.



The law is officially what 5 people say it is.


N/A

[Tony]

Originally posted by NoZed Avenger
Disband the legislatures now -- federal and state.



The law is officially what 5 people say it is.




No it's not.

[Jocko]

Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. ... The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment.

Okay, "doing it for the children" language aside, what exactly is he saying here? That the Supreme Court has the right - no, the obligation - to interpret social mores as well as the Constitution?

In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day--Alexander Hamilton, for example--were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court. In all events, I do so without hesitation.

Ah, so the Supreme Court not only decides what is MORAL (not just Constitutional!), they're channeling the dead who conveniently cannot speak for themselves.

And then some people wonder why strict constructionalists are back in vogue.... don't blame Bush, blame "evolving standards of decency."

Sure, why read the second amendment literally when you can get a contemporary opinion in Rolling Stone magazine? Why even have a Constitution at all?

[Brown]

Originally posted by Jocko
Okay, "doing it for the children" language aside, what exactly is he saying here? That the Supreme Court has the right - no, the obligation - to interpret social mores as well as the Constitution?
...
And then some people wonder why strict constructionalists are back in vogue.... don't blame Bush, blame "evolving standards of decency."Justice O'Connor, who dissented in this case, had this to say:It is by now beyond serious dispute that the Eighth Amendment's prohibition of "cruel and unusual punishments" is not a static command. Its mandate would be little more than a dead letter today if it barred only those sanctions--like the execution of children under the age of seven--that civilized society had already repudiated in 1791.... Rather, because "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." ... In discerning those standards, we look to "objective factors to the maximum possible extent."
...
We therefore have a "constitutional obligation" to judge for ourselves whether the death penalty is excessive punishment for a particular offense or class of offenders. Whether a punishment is cruel or unusual compels consideration of evolving standards. Punishments now thought barbaric were at one time fairly common and were thought to be appropriate: whipping, stocks, exposure to elements, imprisonment for debt, capital punishment for what are now non-capital crimes (or today are not crimes of any kind), and so on.

This is not a matter of strict construction. It is a matter of applying standards as to the constitutional words "cruel and unusual," while recognizing that what is "cruel and unusual" today may not have been so in the past, and what was "cruel and unusual" in the past might not be so today.

[BPSCG]

It strikes me that the evolving "standard" is far from that.

There are currently 38 states that permit capital punishment. Only 18 have laws prohibiting the execution of murderers under the age of 18. That's a minority of 47% of those states. How is that a "standard"?

The dozen states that have no death penalty offer no views about special immunity for juveniles -- and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

So thirty-two of the fifty states allow for the possibility that a minor should be treated no differently from an adult in criminal proceedings.

So how do we arrive at the conclusion that there is now a "standard"? Mind you, I myself would have grave difficulty sentencing a minor to death, even after experiencing Lee Malvo's predations here two years ago. But I just don't see where anyone gets the idea that there is a "standard" regarding capital punishment for minors.

[BPSCG]

Originally posted by Brown
Whether a punishment is cruel or unusual ...

(...snip...)

It is a matter of applying standards as to the constitutional words "cruel and unusual," Note the difference in the two quotes. the first speaks of punishment being cruel OR unusual, the second cruel AND unusual. The Constitution says cruel AND unusual.

Better Constitutional scholars than I should answer these questions:

1) Was it the intent of the authors of the Constitution to ban any punishment that by itself was both cruel AND unusual? Or was it their intent to ban any punishment that was EITHER cruel OR unusual?

2) If the latter, I call your attention to the fact that judges occasionally sentence criminals to punishments that are unusual, but which no reasonable person would say is cruel. Are these punishments unconstitutional?

[NoZed Avenger]

Originally posted by Tony
No it's not.

Yep. It is.

(hey -- this is fun)

[Jocko]

Originally posted by Brown

This is not a matter of strict construction. It is a matter of applying standards as to the constitutional words "cruel and unusual," while recognizing that what is "cruel and unusual" today may not have been so in the past, and what was "cruel and unusual" in the past might not be so today.

BS. What makes this a "shot across the bow," as you so revealingly put it, is that Stevens has essentially claimed the Constitution is open not only to interpretation, but social/moral review by SCOTUS.

As I stated, what's keeping him from applying this thinking to the second amendment? Times were different then for firearms, too.

This is textbook slippery-slope, foot-in-the-door, unaccountable BS... and a big part of the reason why Bush WILL get his pick of justices.

[Skeptic]

Its mandate would be little more than a dead letter today if it barred only those sanctions--like the execution of children under the age of seven--that civilized society had already repudiated in 1791....

But surely this isn't the point?

So far as I know, when the people of the US decided they will no longer execute (say) children under the age of 12, this was done not by declaring execution of 11-year-olds "unconstitutional", but simply by repealing the laws that allowed it. After all, just because the constitution ALLOWS such a law hardly means the states HAVE to do it. On the other hand, when something "big"--like the abolition of slavery or votes for women--was made unconstitutional, when it was explicitly constitutional before, this was done by explicitly amending the constitution.

In neither case, did the evolving standard of decency involve judges deciding that since, in their view, the USA had reached a point of "evolving decency" that now makes slavery / disenfranchizing women / juvenile execution / whatever "indecent" enough, then slave (or the rest) are, ipso facto, unconstitutional from then on.

What I am afraid this means is that, in effect, there shall be a tyranny--not of the SC, but of states against each other. It means that if 49 (or 45, or 40, or 26...) states have a law banning (or allowing) X and the minority of states have a law to the opposite, then the minority view will be declared "unconstitutional" by SC due to the fact that the majority's disagreement is evidence that "evolving standards of decency" reached a point where X need, indeed, to be banned.

[Brown]

Originally posted by Jocko
BS. What makes this a "shot across the bow," as you so revealingly put it, is that Stevens has essentially claimed the Constitution is open not only to interpretation, but social/moral review by SCOTUS.

As I stated, what's keeping him from applying this thinking to the second amendment? Times were different then for firearms, too.Stevens did not say, nor even suggest, that the Constitution as a whole is open to social or moral review. He did say that the Court has a long history of making the Constitution applicable to the world we live in, and not restricting its applicability to the world we used to live in.

The drafters of the First Amendment had no idea that there would be things like radio, television and the Internet. None of these media uses a "press" or printed medium. (For that matter, many newspapers and magazines don't use presses today, either!) Yet the Court has--rightly, in the view of nearly everyone--said that "freedom of the press" extends to these press-less media.

Some framers felt that the Constitution ought to be amended every few years so it keeps up with the changing times. But we don't do that, and we haven't followed that practice from the start. And for good reason: it's inefficient. Besides, the general consensus is that amending the Constitution should be reserved for very important things, thereby preserving its dignity and import.

The effect, then, is that the Supreme Court has for hundreds of years applied Constitutional principles to things the framers never even imagined. The Court usually looks to the general goals of the framers, and does not limit those goals to the specific circumstances then existing.

As for the Second Amendment, so far there has not been a recent case that applies its scope to the bearing of modern weaponry. The NRA (among others) would, of course, get very bent out of shape if the Court were to rule that "arms" means only 18th century weaponry. There is no reason to believe that any Supreme Court, no matter how "liberal" it may be, would ever say that the framers' general goals in the Second Amendment are limited to the ancient armaments.

Nevertheless, it can be entertaining sometimes when some loudmouth talks about limiting First Amendment freedoms to the freedoms specifically envisioned by the framers, and you AGREE with him and apply the same "logic" to the Second Amendment.

[drkitten]

Originally posted by Skeptic

What I am afraid this means is that, in effect, there shall be a tyranny--not of the SC, but of states against each other. It means that if 49 (or 45, or 40, or 26...) states have a law banning (or allowing) X and the minority of states have a law to the opposite, then the minority view will be declared "unconstitutional" by SC due to the fact that the majority's disagreement is evidence that "evolving standards of decency" reached a point where X need, indeed, to be banned.

There's a big difference both conceptually and legally/practically between a conspiracy to ban X and a conspiracy to allow X. The US government is specifically set up to support rights, which in turn makes it very easy to forbid the government to do something, but on the other hand at the same time makes it very hard to require private enterprise to do something.

To use the relevant quote, the Constitution forbids the infliction of "cruel and unusual punishment." The very word "unusual" should tip you off there that, yes, to some extent, the interpretation becomes a popularity contest. If enough people refuse to do something, then doing that thing will become unusual. Similarly, if enough people do something, then not doing it is unusual (think about, for example, vegetarianism -- NOT eating meat is unusual).

However, from a broader perspective, the government is prevented from inflicting unusual punishments. However, it's not required to inflict usual ones. If Vermont decided to forego the entire penitentiary system, there would be no basis in the Constitution to compel them to imprison people (despite the fact that it's "usual").

I don't have many problems where other states can get together and vote that someone else has to leave me alone, even if they don't want to.

[Beerina]

If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. ...

Umm, I was unaware executions of 7 year olds were considered normal by the founding fathers.

Is this Justice serious?!?!?

[Beerina]

Originally posted by Brown
Justice O'Connor, who dissented in this case, had this to say:
...

This is not a matter of strict construction. It is a matter of applying standards as to the constitutional words "cruel and unusual," while recognizing that what is "cruel and unusual" today may not have been so in the past, and what was "cruel and unusual" in the past might not be so today.

Presumably this works the other way, at least in theory.

If the populations' standard of decency started devolving, and caning, or whipping, or, heck, execution of teenagers, came back into vogue, the Supreme Court would be bound to allow those forms of punishment?

Methinks they'd whip up some other BS hot air to cover that situation. :( (Not that I'm in favor of that stuff, but I'm unsettled by the rather arbitrary judgement -- and a judgement that is clearly as much whishful thinking (the "standards have changed") as it is an "objective observation of current standards.")

[Beerina]

Originally posted by Brown
The drafters of the First Amendment had no idea that there would be things like radio, television and the Internet. None of these media uses a "press" or printed medium. (For that matter, many newspapers and magazines don't use presses today, either!) Yet the Court has--rightly, in the view of nearly everyone--said that "freedom of the press" extends to these press-less media.

Yes, but that is in the spirit of the intention. It is the media that changed, not the intention.

This case is exactly the opposite. The real world thing stays the same: 17 year olds who viciously murder people (including bragging about how they can't get executed because they're only 17 -- so they're gonna do it again!) While the spirit of that clause of the constitution is being rewritten.

So I reject that analogy.

[crimresearch]

Originally posted by BPSCG
Note the difference in the two quotes. the first speaks of punishment being cruel OR unusual, the second cruel AND unusual. The Constitution says cruel AND unusual.

Better Constitutional scholars than I should answer these questions:

1) Was it the intent of the authors of the Constitution to ban any punishment that by itself was both cruel AND unusual? Or was it their intent to ban any punishment that was EITHER cruel OR unusual?

2) If the latter, I call your attention to the fact that judges occasionally sentence criminals to punishments that are unusual, but which no reasonable person would say is cruel. Are these punishments unconstitutional?

Since they didn't have death by electric chair, or lethal injection, back in the day, and the Supremes have upheld those practices in general, I think we can safely assume tha there was no intent to prohibit punishment based *solely* on its rarity, or newness.

And I'm sure you can find someone to argue for the cruel nature of all sorts of punishment...

I'll go with the notion that the USSC reads the Consitution as prohibiting 'unusually cruel' punishments.
;)

[BPSCG]

Originally posted by crimresearch
I'll go with the notion that the USSC reads the Consitution as prohibiting 'unusually cruel' punishments.
;) I've never been comfortable with that "cruel and unusual" construct.

Will I eat a sandwich if it's got only peanut butter between the slices of bread? Yes.

Will I eat a sandwich if it has only salami between the slices of bread? Yes.

Will I eat a sandwich if it has peanut butter AND salami between the slices of bread? Hell, no.

The founding fathers were, I think, able to understand the difference between "cruel AND unusual" and "cruel OR unusual." I would think that since they specified "cruel AND unusual", that would settle the argument. I don't understand why it persists.

[Brown]

Originally posted by Beerina
Umm, I was unaware executions of 7 year olds were considered normal by the founding fathers.

Is this Justice serious?!?!? It wasn't Justice Stevens who first made the point. It was Justice Scalia. From the case of Stanford v. Kentucky (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&navby=case&court=US&vol=492&invol=361) (1989):Neither petitioner asserts that his sentence constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U.S. 399, 405 (1986). Nor could they support such a contention. At that time, the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7. See 4 W. Blackstone, Commentaries *23-*24; 1 M. Hale, Pleas of the Crown 24-29 (1800). This is a case in which the Court determined that a 17-year-old could be executed. Although five members of the Court agreed on a result, they could not agree on a rationale. Justice Scalia wrote an opinion, citing Blackstone and Hale, to say that execution for very young offenders was not deemed crual and unusual in the 18th Century.

Justice Scalia was quite serious. Justice Stevens thought such a thing unconscionable.Originally posted by Beerina
This case is exactly the opposite. The real world thing stays the same: 17 year olds who viciously murder people (including bragging about how they can't get executed because they're only 17 -- so they're gonna do it again!) While the spirit of that clause of the constitution is being rewritten.The crime is the same. What is at issue is the punishment. Justice Scalia in Stanford again:[T]his Court has "not confined the prohibition embodied in the Eighth Amendment to 'barbarous' methods that were generally outlawed in the 18th century," but instead has interpreted the Amendment "in a flexible and dynamic manner." There is a well-established line of jurisprudence that recognizes that the concept of just punishments for the same crimes changes with time. Justice Scalia's point, both in Stanford and Roper, is that the Court should be mindful of the factors to consider when trying to determine whether the concept of just punishment has indeed changed. The notion of "evolving standards of decency" is not a new concept.Originally posted by Beerina
Presumably this works the other way, at least in theory.

If the populations' standard of decency started devolving, and caning, or whipping, or, heck, execution of teenagers, came back into vogue, the Supreme Court would be bound to allow those forms of punishment?Some say this has already happened. It is now well-known that felons are executed by lethal injection. Yet punishment by chemical means is a relatively new form of punishment, and a very extreme one at that. Until recently, death by chemical (e.g., poisoning) was deemed inefficient, useful principally as a tool of assassins who killed by stealth. In days of yore, hanging was the favored mode of execution. If the offender or his loved ones could bribe the hangman, the noose could be positioned so that the offender's neck would break at the drop, hastening death. Otherwise, the offender would writhe in agony at the end of a rope, conscious, for several minutes. Yet this was not deemed cruel.

[BPSCG]

Originally posted by Brown
The notion of "evolving standards of decency" is not a new concept.Even if we accept that as being true, how does SCOTUS arrive at the conclusion that executing minors violates some standard? Of the 38 states that allow capital punishment, 20 of them - more than half - allowed it for minors. It seems to me that even if I agree that I don't like the idea of executing minors (I don't), I can't claim that it violates some national standard that everyone agrees on.

I could just as plausibly argue that not executing vicious murderers who have no trouble distinguishing right from wrong violates a standard of decency.

Again, I'm not speaking in favor of executing minors, but rather against the principle that SCOTUS can decide what a standard is, when it is clear there is no nationwide standard. SCOTUS has no problem with allowing "community standards" to decide whether movies and such are pornographic; why do the community standards fail when deciding the death penalty question? What happens if SCOTUS someday decides that "evolving standards of decency" require the reading of the Ten Commandments before every criminal trial ("Thou shalt not bear false witness against thy neighbor...")? What if SCOTUS someday decides that "evolving standards of decency" prohibit a woman from terminating her pregnancy the day after she's raped?

Pendulums swing both ways.

[Jocko]

Originally posted by Brown

Justice Scalia was quite serious. Justice Stevens thought such a thing unconscionable.

Ah, so that's why Stevens has decided that SCOTUS will be the final arbiter of social norms: he got his ass handed to him on a decision he didn't like. I feel so much better about the whole thing now that I see it's just a little game of tit-for-tat with a sore loser.

Yeah, that's a solid reason for debasing the entire principle of SCOTUS's existence.

[punchdrunk]

Originally posted by BPSCG
Even if we accept that as being true, how does SCOTUS arrive at the conclusion that executing minors violates some standard? Of the 38 states that allow capital punishment, 20 of them - more than half - allowed it for minors. It seems to me that even if I agree that I don't like the idea of executing minors (I don't), I can't claim that it violates some national standard that everyone agrees on.


From this (http://www.washingtonpost.com/wp-dyn/articles/A62584-2005Mar1.html) Washington Post article:

"As of yesterday, 20 states, including Virginia, permitted the death penalty for offenders younger than 18. That is five fewer than allowed the practice in 1989."

"Kennedy's opinion rested in large part on the fact that 30 states, including the 12 states that have no capital punishment, forbid the death penalty for offenders younger than 18. That number represented an increase of five since the court upheld the juvenile death penalty in 1989."

Presumably SCOTUS decided that this trend among states indicates the standard is evolving.

Another tidbit from the article:

"For the Supreme Court itself, perhaps the most significant effect of yesterday's decision is to reaffirm the role of international law in constitutional interpretation."

And I thought Brown said it wasn't a factor in this case. I'll have to review the threads....

[BPSCG]

Originally posted by rhoadp
"Kennedy's opinion rested in large part on the fact that 30 states, including the 12 states that have no capital punishment, forbid the death penalty for offenders younger than 18. The 12 states that have no capital punishment at all nevertheless do allow minors to be tried as adults.

So there is a "standard" that in some cases, minors should be treated no differently than adults. Why is that standard unimportant? Why does the "standard" that minors should not be executed trump all?

If you accept this, then what is to stop SCOTUS from someday saying that "evolving standards of decency" allow Janet Jackson to not just flash a nipple, but do a full, bare-assed naked jiggly dance?

Or from someday saying that "evolving standards of decency" not only prohibit the killing of a minor for a crime, but an unborn fetus that's committed no crime?

The liberal justices claim that "evolving standards of decency" somehow hold sway when the "standards" are those of Massachusetts. But what happens when SCOTUS decides the standards are those of Utah?

It keeps coming back to the question: Why is this a metter for federal courts to decide? SCOTUS says Utah can decide that a porn shop on the corner violates community standards, while Massachusetts can decide it doesn't. Why does that rule not apply for the death penalty?

Another tidbit from the article

"For the Supreme Court itself, perhaps the most significant effect of yesterday's decision is to reaffirm the role of international law in constitutional interpretation."

And I thought Brown said it wasn't a factor in this case. I'll have to review the threads.... "International law" bears about the same relationship to real law as the "Beligiun waffles at the International House of Pancakes" bear to real Belgian waffles.

Anyway, I prefer the laws of the U.S., thank you very much. International law did nothing when Europeans tried to murder my grandparents, did nothing when Serbs murdered Croatians, when Hutus murdered Tutsis, when Saddam murdered Kurds, when Sudanese murdered Sudanese, when Khmer Rouge murdered Cambodians, when Castro murdered Cubans... Looking to "international law" for guidance on who we can kill and who we can't is a grotesque joke.

[Jaggy Bunnet]

Originally posted by BPSCG
Anyway, I prefer the laws of the U.S., thank you very much. International law did nothing when Europeans tried to murder my grandparents, did nothing when Serbs murdered Croatians, when Hutus murdered Tutsis, when Saddam murdered Kurds, when Sudanese murdered Sudanese, when Khmer Rouge murdered Cambodians, when Castro murdered Cubans... Looking to "international law" for guidance on who we can kill and who we can't is a grotesque joke.

International law did however decide that what happened to your grandparents was a crime and in most of the cases above has done likewise.

The fact that there is no international body able (or willing) to enforce international law does not mean that international law itself is flawed. After all US law does not stop thousands of killings every year, but that does not make US law a joke.

[BPSCG]

Originally posted by Jaggy Bunnet
International law did however decide that what happened to your grandparents was a crime and in most of the cases above has done likewise.I'm sure that's very comforting to the dead.
The fact that there is no international body able (or willing) to enforce international law does not mean that international law itself is flawed. After all US law does not stop thousands of killings every year, but that does not make US law a joke. If my grandparents had relied on international law to protect them, they'd have died in the service of their ignorance. U.S. law saved their lives.

I have never seen a persuasive argument for using "international law" as a model for how we should behave. Anyone who doesn't like the laws of this country is free to be as active and as vocal as he wants to persuade the majority to get them changed, and if he finds the situation is still intolerable, he is free to leave for greener pastures whenever he pleases.

Persuade me with facts, figures, and logic that we should have no death penalty. But don't try to persuade me by "appeal to authority" - especially when the "authority" is France.

[punchdrunk]

Originally posted by BPSCG
The 12 states that have no capital punishment at all nevertheless do allow minors to be tried as adults.

So there is a "standard" that in some cases, minors should be treated no differently than adults. Why is that standard unimportant? Why does the "standard" that minors should not be executed trump all?

I don't have a reasonable answer to this; perhaps someone else will.

If you accept this, then what is to stop SCOTUS from someday saying that "evolving standards of decency" allow Janet Jackson to not just flash a nipple, but do a full, bare-assed naked jiggly dance?

Well, this is case is referring to the evolving standards of decency when it comes to the specific question of cruel and unusual punishment, not the freedom of speech. What's to stop SCOTUS from re-evaluating other parts of the Constitution using the 'evolving standards of decency' excuse? I don't know. On one hand, I want to preserve the integrity of the Constitution, but on the other, I also know that standards have and will change, and our government has to adapt. The Constitution was meant to be adaptable.

I have a hypothetical question for you: what if one state decided that executing juveniles ten years or older was acceptable, or that drawing and quartering was an acceptable punishment? Would you support that state's right to define its own standard? Or would you feel that it had crossed the line, and it was cruel and unusual, and therefore unconstitutional? If so, whose standard are you then using, and what justification do you have for using that standard?

Or from someday saying that "evolving standards of decency" not only prohibit the killing of a minor for a crime, but an unborn fetus that's committed no crime?

It took a SCOTUS decision to decide that abortion was legal, so I guess it will take a SCOTUS decision to make any changes to that decision.

It keeps coming back to the question: Why is this a metter for federal courts to decide? SCOTUS says Utah can decide that a porn shop on the corner violates community standards, while Massachusetts can decide it doesn't. Why does that rule not apply for the death penalty?


I asked in another thread if anyone saw this as a state issue, and not something that should be left up to the federal courts to decide (although I posed the question poorly). I myself am undecided.

[Furious]

Originally posted by BPSCG
I'm sure that's very comforting to the dead.
[B]If my grandparents had relied on international law to protect them, they'd have died in the service of their ignorance. U.S. law saved their lives.

I have never seen a persuasive argument for using "international law" as a model for how we should behave. Anyone who doesn't like the laws of this country is free to be as active and as vocal as he wants to persuade the majority to get them changed, and if he finds the situation is still intolerable, he is free to leave for greener pastures whenever he pleases.

Persuade me with facts, figures, and logic that we should have no death penalty. But don't try to persuade me by "appeal to authority" - especially when the "authority" is France.

You are being obtuse. U.S. Law is superior to international law not for it's superiority in how we should behave, but because the U.S. law enforcement system is clearly superior. We have the backbone to enforce them.

The issue you have with international law is not that its not well written, well meaning, or not a good model of how everyone in the world should act, but that there is no international enforcement body to back it up.

Every example of gross atrocity you can mention is against international law, but occured because there wasn't sufficient force to prevent them or enough of a threat to the perpetrators to cause them to fear approprite justice after it happened.

The laws are not weak (well, generally anyway), the enforcement of them is. Doesn't mean they aren't good standards of justice though.

[Jaggy Bunnet]

Originally posted by BPSCG .
If my grandparents had relied on international law to protect them, they'd have died in the service of their ignorance. U.S. law saved their lives.

Sorry but that is just plain wrong. What was done was against both international and US law. However neither of them is capable of saving lives.

Lives are saved by those willing to enforce the law, not by the law itself. Making something illegal does not stop it.

[aerocontrols]

I suppose it's too much to ask that the Supreme Court leave the issue of how our morals should evolve up to the legislatures, and concentrate themselves on the law.

Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today.

Fine. The Amendment would impost no impediment. Luckily, our "evolving standards of decency" have put an end to executions of 7-year-olds, quite without your (or the Constitution's) help, Mr. Justice. (I stand ready to be corrected on this point, of course)

Since the death penalty was re-instated in 1976, 22 juvenile offenders have been executed, (21 who were 17 at the age of their crime, and 1 who was 16) and as you point out, state legislatures are moving away from allowing the practice. Instead of claiming that you see "evolving standards of decency" and using that as justification for overriding the will of the people, why not have faith that decency standards are evolving as you claim and...


wait for it...


let them evolve?


That having been said, I say good for the legislatures that had already banned the practice, and shame on the legislatures who had not yet done so.

MattJ

[BPSCG]

Originally posted by Furious
You are being obtuse. U.S. Law is superior to international law not for it's superiority in how we should behave, but because the U.S. law enforcement system is clearly superior. We have the backbone to enforce them.U.S. laws provide for a military to protect me and my property from people who would do me harm. State and local laws provide for police to protect me and my property.

International law does neither, and without enforcement apparatus, international law might as well be swallowed up in one sentence: "Everyone should always be nice to everyone else."
The issue you have with international law is not that its not well written, well meaning, or not a good model of how everyone in the world should act, but that there is no international enforcement body to back it up.The issue I have with international law is I don't care what the standards of other countries are when deciding what the standards of my country should be. I might consider what works for other countries in deciding whether what they do would be a good idea for the U.S. But the fact that "the international community" has decided it doesn't like the death penalty, or that the top tax rate should be 95%, or that people should be forbidden to work more than 35 hours per week, or that chicken must not be eaten on Wednesdays, is irrelevant to me. The only thing that's relevant to me is, is this a good idea for my country?

Like the standards of other countries better than those of the U.S.? Then get the majority of Americans to agree with you to change the standards, through the legislative process. That's why we have legislatures.

[BPSCG]

Originally posted by BPSCG .
If my grandparents had relied on international law to protect them, they'd have died in the service of their ignorance. U.S. law saved their lives.
Originally posted by Jaggy Bunnet
Sorry but that is just plain wrong. What was done was against both international and US law. However neither of them is capable of saving lives.

Lives are saved by those willing to enforce the law, not by the law itself. Making something illegal does not stop it. U.S. law allowed my grandparents in to the country. U.S. law protected them from being persecuted for being of the wrong faith or the wrong ethnicity.

European law did neither.

[Jaggy Bunnet]

Originally posted by BPSCG
U.S. law allowed my grandparents in to the country. U.S. law protected them from being persecuted for being of the wrong faith or the wrong ethnicity.

European law did neither.

First, make up your mind which law you are talking about. First it was international law. Now it appears to be some bizarre thing called "European law". Like to tell me where I can read what "European law" was at the time?

Fact is it did not exist.

It is not the law that protects them, it is the enforcement. International law would also have declared acts against them illegal, same as US law. Difference is not in the law but the enforcement.

[Jaggy Bunnet]

Originally posted by BPSCG
The issue I have with international law is I don't care what the standards of other countries are when deciding what the standards of my country should be. I might consider what works for other countries in deciding whether what they do would be a good idea for the U.S. But the fact that "the international community" has decided it doesn't like the death penalty, or that the top tax rate should be 95%, or that people should be forbidden to work more than 35 hours per week, or that chicken must not be eaten on Wednesdays, is irrelevant to me. The only thing that's relevant to me is, is this a good idea for my country?

Like the standards of other countries better than those of the U.S.? Then get the majority of Americans to agree with you to change the standards, through the legislative process. That's why we have legislatures.

This bit I agree with. ;)

(Although in a federal system, presumably some of the questions are "Is this a good idea for my state?, or in your personal consideration does the national interest outweigh the potential benefit to your individual state?)

[Brown]

How does the Supreme Court arrive at a standard?

That indeed is the crux of the issue. In the Roper case, the Court was split 5-4. They didn't disagree about whether the Court can consider the evolving standards; they disagreed about how to do it.

For anyone seriously interested in this topic, I recommend reading the Stanford and Roper cases in their entirety.

A quick word about "international law." This is a term that encompasses a lot of distinct concepts. The Roper decision did not involve "international law" in its more "legal" senses. There were no controlling treaties at issue. There was no question about jurisdiction among nations or whose law ought to apply. The Court did not consider whether the rights of other nations may be affected.

There is no question that the legal issues in the case were those of the United States Constitution. There is no question that the Supreme Court had jurisdiction and that United States law would be applied.

"International law," in the sense of "what other nations' laws say," was asserted as an additional basis for the majority's decision:Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." Justice O'Connor, even though she disagreed with the result, did not dispute the soundness of this principle. She did, however, feel that national consensus was a far more important factor than international consensus. Until a national consensus had been reached, she said, the international consensus did not carry much weight. Nevertheless, I disagree with Justice Scalia's contention, post, at 15-22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency.

[Brown]

Originally posted by me
Against this background, Justice Stevens has fired a shot across the bow of those who would like to turn back the clock.Justice Scalia has fired back. Here is a story from AP and Yahoo (http://story.news.yahoo.com/news?tmpl=story&cid=558&ncid=701&e=3&u=/ap/20050315/ap_on_go_su_co/scalia):Scalia, who has been mentioned as a possible chief justice nominee should Chief Justice William Rehnquist retire, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted.
...
"If we're picking people [for judicial appointments] to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us," he said, explaining that's why senators increasingly probe nominees for their personal views on positions such as abortion.

"When we are in that mode, you realize we have rendered the Constitution useless," Scalia said. Justice Scalia had some harsh words for former Chief Justice Earl Warren:He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren's political background. Warren was governor of California and the Republican vice presidential nominee in 1948. Could it be that Justice Scalia had Earl Warren in mind when he remarked that unelected justices too often choose to read new rights into the Constitution? Perhaps.

Miranda v. Arizona, source of the well-known "Miranda rights," was authored by Chief Justice Warren. Of course, the Constitution does not explicitly say that people have to be notified of their rights... so presumably Miranda warnings would be judicial overreaching, and that the democratic process ought to be trusted to compel such notification. But can you imagine that the democratic process would ever result in the institution of such warnings, which would be only for the benefit of criminals?

Chief Justice Warren also wrote the opinion in Brown v. Board of Education, which did away with the established "separate but equal" doctrine. Of course, the constitution says nothing that would prohibit segregated schools. Can you imagine that the democratic process existing in the 1950s and 1960s would ever result in desegregation, for the benefit of a minority? On the contrary, the democratic process in some states urged "segregation forever."

Or maybe Justice Scalia had Justice Harry Blackmun in mind, since Justice Scalia suggested that abortion rights (from Roe v. Wade) came from unelected justices who choose to read new rights into the Constitution, at the expense of the democratic process. Can you imagine that a democratic process dominated by men that would adopt laws that would guarantee a woman the right to determine whether she should be pregnant or not?

Justice Scalia seems to belittle the notion that certain individual rights--especially the rights of the minority, the powerless and the unpopular--will not be respected by the will of the majority.

Although Justice Scalia is right in saying that judicial decisions should not be based upon personal preferences, he ignores a couple of really important things:

First, when deciding cases like Brown v. Board of Education, Miranda v. Arizona and Roe v. Wade, the court did not simply pull new constitutional rights out of its judicial butt. Each of these decisions was based upon analysis, precedent, and historic development of circumstances. These cases involved much more than "personal preferences."

Second, Justice Scalia seems to be utterly blind to the irony of his remarks, as he played an active role in the greatest constitutional monstrosity ever excreted by the Court, Bush v. Gore. This was a ruling that was patently political, was utterly unsupported by precedent, which totally set aside the democratically adopted statutory vote-counting rules, and which--for the sake of guaranteeing that George W. Bush would take the White House--essentially adopted a rationale that would make every single presidential election ever held in this country unconstitutional.

[punchdrunk]

Brown, I caught the tail-end of a C-SPAN program w/ Justice Scalia about interpreting the Constitution (and as of today can still be found on their website (http://www.c-span.org/), under Recent Programs. It is unfortunately Real Player media.) Asked about Miranda v Arizona, he said that its text "was practically plagiarized from the Federalist Papers" (I am paraphrasing here, but he did use the word 'plagiarized') and so, I assume, he did not have a problem with it (though perhaps a dig at Justice Warren?) He also said he prefers the term "originalism" over "strict constructionism", fwiw.

What I would have asked him, and I'm not sure I can even properly pose the question, but it is what you touched upon: under an 'Originalist' POV, what constitutional mechanism is in place to secure the rights of minorities when those rights were never recognized by tradition and never specifically recognized by the framers? Surely minorities should not have to wait until the majority of the populace recognizes those rights and then presumably elects the proper legislators to codify those into law?

[crimresearch]

...under an 'Originalist' POV, what constitutional mechanism is in place to secure the rights of minorities when those rights were never recognized by tradition and never specifically recognized by the framers?

The interpretations and activism of those 'unelected justices' that he loves to pretend are not part of the COnsitution...except himself of course.

[Brown]

I am resurrecting this thread to post some thoughts about Justice Stevens's recently announced retirement. (There is another thread that raises that topic, but the opening post is so inane that it does a disservice to the topic.)

Justice Stevens was one of the most practical members of the bench. Despite what some in the media say, he was neither liberal nor conservative. He was not an ideologue, nor an activist by any reasonable and informed definition of that term.

He tried to be a good judge. He succeeded. He was, in my view, the most admirable Justice of the past twenty-five years. I did not agree with him on every issue, but there was never an opinion from Justice Stevens that I felt was improperly reasoned or result-oriented.

If there is one overriding theme in his opinions, it is the practicality of the law. Law should be workable. It should be generally consistent and understandable.

One of the themes of this thread showed how Justice Stevens felt strongly that laws ought to be applied to the way the world actually is, rather than the way it used to be. Things change, whether we want them to change or not, and so a jurisprudence that gets stuck in the past is a poor jurisprudence.

[INRM]

The problem with his comment about evolving standards of decency, pertains to the concept of evolving standards in and of itself. How far does he wish for the Constitution to evolve?

Do we retain freedom of speech, freedom from unreasonable search and seizure? Or does evolving standards mean that there might be changes in that area?

This is a good question to ask! How far does this go? Where does it end?

[Brown]

The problem with his comment about evolving standards of decency, pertains to the concept of evolving standards in and of itself. How far does he wish for the Constitution to evolve?

Do we retain freedom of speech, freedom from unreasonable search and seizure? Or does evolving standards mean that there might be changes in that area?

This is a good question to ask! How far does this go? Where does it end?Interesting comment! You may well ask the same question of biological evolution. What way does evolution want to go?

In a sense, evolution, whether biological or legal, does not wish to go in any direction. It is largely reactive rather than proactive.

In a sense, the question may not the best way to look at it. Instead of asking where will standards go and and when will change end, we should be recognizing that as a matter of fact standards DO change and that change might never reach any sort of final destination; and so perhaps the question ought to be, do we deal with what IS or do we pretend that we are still living in the past?

There is some concern that evolution will be toward restricting freedoms rather than limiting them. And yet... the evolution of jurisprudence has expanded freedoms in ways never contemplated by the founders of the county: freedom for minorities, freedom for women, freedom for those who adhere to unpopular religions, freedom for the young, freedom for those who communicate electronically, freedom for those who drive automobiles ....

[Chaos]

The problem with his comment about evolving standards of decency, pertains to the concept of evolving standards in and of itself. How far does he wish for the Constitution to evolve?

Do we retain freedom of speech, freedom from unreasonable search and seizure? Or does evolving standards mean that there might be changes in that area?

This is a good question to ask! How far does this go? Where does it end?

Actually, I´d look at this from the other direction... why would anyone want the constitution not to evolve?

Back in 1783 or so, slavery was considered perfectly legal and moral, and the idea of extending voting right to - GASP! - women would have been absolutely ridiculous.

These days, in most of the US, slavery is considered very immoral, and is in fact illegal everywhere in the US. And, I´m sure you noticed, women can vote these days.

So, quite clearly, in these two issues at least, the Constitution today flagrantly violates the spirit of the Constitution as originally written. But what is more important: the things the people who live in the US now, and who have to live with this for all their life, consider just and moral - or the will of a bunch of dead people from long ago?

[The Fallen Serpent]

The problem with his comment about evolving standards of decency, pertains to the concept of evolving standards in and of itself. How far does he wish for the Constitution to evolve?

Do we retain freedom of speech, freedom from unreasonable search and seizure? Or does evolving standards mean that there might be changes in that area?

This is a good question to ask! How far does this go? Where does it end?

The Constitution was designed with evolution in mind. Specifically with the opinion of the duly elected representatives of the people. This change will go as far as the people go, with lag of course, and it will end when the people stop changing.

[INRM]

Chaos and The Fallen Serpent,

What I worry about is how it evolves, and exactly how far it evolves.

Justice Steven's comments could be used to argue that evolving standards may make, say, the 4th Amendment unnecessary, or might allow the 4th Amendment's protections on unreasonable search and seizures to be modified, and even watered down, ultimately resulting in less Constitutional protections from unwarranted search and seizure. And in case you are wondering, I'm not talking about the government just engaging in surveillance illegally like Bush did -- I'm talking about the government being able to claim that evolving standards actually make it legal to spy on people in greater degrees, under greater circumstances without a warrant, understand?

This can technically apply to any of the amendments in our Constitution technically, which is a very serious problem. Our Constitutionally guaranteed freedoms are what make our country what it is; what make it a country to be proud of; a country worth living in; a country worth fighting for. There is hardly any value ensuring the survival of our nation, if the values and traditions which make our country great -- and in fact make it what it is -- do not survive with the nation.


INRM

[Dorian Gray]

Chaos and The Fallen Serpent,

What I worry about is how it evolves, and exactly how far it evolves.

Justice Steven's comments could be used to argue that evolving standards may make, say, the 4th Amendment unnecessary, or might allow the 4th Amendment's protections on unreasonable search and seizures to be modified, and even watered down, ultimately resulting in less Constitutional protections from unwarranted search and seizure. And in case you are wondering, I'm not talking about the government just engaging in surveillance illegally like Bush did -- I'm talking about the government being able to claim that evolving standards actually make it legal to spy on people in greater degrees, under greater circumstances without a warrant, understand?

This can technically apply to any of the amendments in our Constitution technically, which is a very serious problem. Our Constitutionally guaranteed freedoms are what make our country what it is; what make it a country to be proud of; a country worth living in; a country worth fighting for. There is hardly any value ensuring the survival of our nation, if the values and traditions which make our country great -- and in fact make it what it is -- do not survive with the nation.


INRMAnd so minors must DIE!!!!!!! Right? Is that what you're arguing? It is, isn't it.

[The Fallen Serpent]

Yes yes. It is all theoretically possible that evolving standards and the very text of how to go about changing the Constitution could result in the basic framework losing rights we currently consider inalienable from freedom. Is it likely? Not really. If anything I would think that evolving standards have resulted in greater freedoms and rights over the past 200 or so years. Not less. The founders recognized that an unyielding static document served less use than one that could adapt to the changing needs of the people. If evolving standards did not apply to the Constitution then slavery would still be legal and only land owning men of at least 26 years old could vote in the US. THOSE are evolving standards. Has the perception of the 4th Amendment changed in these over 200 years as well? Indeed so. Is there backwards progress occassionally? I also believe so. The best way, in my opinion, to combat regression of rights is to fight it in open public debate. Not to fear change and evolving standards. I agree that not all change is positive. However I find it an archaic standard to fight change for fear that some of that change is malignant. Change is inevitable. Find a way to steer it and mitigate the worse of harmful charge while enhancing the benign changes.

Say it with me now, "I will not fear change. I will approach it with courage. I will evaluate each change on its own merits. I will champion change that is positive while opposing change that is detrimental."

[Chaos]

Chaos and The Fallen Serpent,

What I worry about is how it evolves, and exactly how far it evolves.

Justice Steven's comments could be used to argue that evolving standards may make, say, the 4th Amendment unnecessary, or might allow the 4th Amendment's protections on unreasonable search and seizures to be modified, and even watered down, ultimately resulting in less Constitutional protections from unwarranted search and seizure. And in case you are wondering, I'm not talking about the government just engaging in surveillance illegally like Bush did -- I'm talking about the government being able to claim that evolving standards actually make it legal to spy on people in greater degrees, under greater circumstances without a warrant, understand?

This can technically apply to any of the amendments in our Constitution technically, which is a very serious problem. Our Constitutionally guaranteed freedoms are what make our country what it is; what make it a country to be proud of; a country worth living in; a country worth fighting for. There is hardly any value ensuring the survival of our nation, if the values and traditions which make our country great -- and in fact make it what it is -- do not survive with the nation.


INRM

Well, technically, if you elect me as dogcatcher of Nowhere, Idaho, it is possible that I abuse my power to gather a posse of armed dogcatchers, march on Washington DC, storm the White House, kill the President and declare myself Emperor of the Americas.

So, why aren´t you worried about that instead, rather than the usual BS?

[FlamingMoe]

The founders recognized that an unyielding static document served less use than one that could adapt to the changing needs of the people.
Agreed. This is why they crafted Article V. That is the only legitimate vehicle for constitutional change. No, change is not always bad. But it must be done properly, else why have a Constitution at all?

If evolving standards did not apply to the Constitution then slavery would still be legal and only land owning men of at least 26 years old could vote in the US. THOSE are evolving standards.
The problem here is that these are evolving standards that were amended into the Constitution. Using what, class? The Article V amendment process. Equating those changes with a change in judicial interpretation is pure folly.

However I find it an archaic standard to fight change for fear that some of that change is malignant. Change is inevitable. Find a way to steer it and mitigate the worse of harmful charge while enhancing the benign changes.
One could say the best way to fight malignant change is to fight to keep the courts filled with people who apply the law as it's written instead of inserting their own evolving standards. That way it is we, the people, who decide what changes are made, when, and how.

Saying those of us who insist upon an honest and consistent interpretation of the Constitution actually "fear change" is either gross ignorance or a blatant strawman.

[pgwenthold]

There are obviously "evolving standards." We can say without a doubt that when the FF referred to the right to bear arms, they were not talking about automatic weapons. We know that is the case because there were no such things as automatic weapons back then to talk about.

The reason we talk about automatic weapons in the context of the 2nd amendment today is because the concept of what we mean by "armaments" has evolved over time. So by using the vague concept of "arms," the FF allowed for that amendment to cover things that they did not foresee, and to allow societal standards to prevail. That is why automatic weapons are arguably "arms" protected by the 2nd amendment, but a bazooka is not.

[Darth Rotor]

And so minors must DIE!!!!!!! Right? Is that what you're arguing? It is, isn't it.
Murderers (of a certain degree of nastiness within the crime committed) must die.

Why you feel age is an excuse for murders that otherwise warrant a death penalty confuses me.

Can you walk me through the reasoning?

The point of evolving standards is a worthy discussion, however, not all evolution = progress, nor does all change, by being chage, take on the characteristic of being inherently good.

DR

[The Fallen Serpent]

Agreed. This is why they crafted Article V. That is the only legitimate vehicle for constitutional change. No, change is not always bad. But it must be done properly, else why have a Constitution at all?True. I also agree that changes to the text and the base elements of the constitution should be done in this way.


The problem here is that these are evolving standards that were amended into the Constitution. Using what, class? The Article V amendment process. Equating those changes with a change in judicial interpretation is pure folly.Point taken. Really we are discussing to two related but ultimately different paths. The letter of the law which has its own process for change and court rulings which are more informally based inerpetations that truly are about evolving standards. In many ways the constitution is vague because it outlays principles that other forms of law, including case law, builds the specifics from. I realize now my examples were poor and the one presented above about the right to bear arms is more pertinent.


One could say the best way to fight malignant change is to fight to keep the courts filled with people who apply the law as it's written instead of inserting their own evolving standards. That way it is we, the people, who decide what changes are made, when, and how.At some point the interpetations of legal professionals does matter. No matter how well crafted the written law there will always be legal conflicts. Cases help iron out specifics by using actual real world situations. Even when the law does not change the reality on the ground can, as can the general interpetation of the written law.

Saying those of us who insist upon an honest and consistent interpretation of the Constitution actually "fear change" is either gross ignorance or a blatant strawman.I was discussing people who were claiming that all change was a slippery slope to worse outcomes. Honest and consistent interpetations of laws is needed. I am not disputing that. I was disputing that the very slow change the does happen is not something for the worse. You are conflating my arguement against the fear of change for an arguement against consistency. Accepting change and promoting consistency are not mutually exclusive.