Tuesday, March 08, 2005

A Final Post

After much reflection, I have decided that I will stop blogging indefinitely. For now, I don't have the time it takes to write the kind of (hopefully) insightful and interesting posts that justify the blog's existence. I hope you have enjoyed reading my various, sundry thoughts on philosophy and life in general -- I have certainly enjoyed sharing them with you.

Tuesday, March 01, 2005

More Government by Judiciary

Today, in a landmark decision, the U.S. Supreme Court declared that executing individuals for murders committed while they were under the age of 18 constitutes cruel and unusual punishment under the 8th Amendment. No matter what one thinks about the death penalty, today's decision is flagrant judicial activism and it ups the ante on upcoming court appointments. The decision, Roper v. Simmons was decided 5-4, with Justice Kennedy writing for the majority and Justices Rehnquist, Scalia, Thomas, and O'Connor dissenting.

To arrive at its absurd result, the majority completely ignores what the framers had intended by banning cruel and unusual punishment -- an inquiry which must look to what was considered cruel and unusual at the time of the adoption of the bill of rights -- and instead looks to whether a 'national consensus' has formed against the juvenile death penalty. Had they investigated the former, they would discover that there is ample evidence that the framers did not find capital punishment, even for juvenile offenders, cruel and unusual (although there was a presumption against forming criminal intent for those under 14). The majority's analysis centers on what it calls 'objective indicia' of a national consensus against the juvenile death penalty, basically that 4 states passing laws against it, and the fact that 47% of the states that permit the death penalty do not permit its use for juvenile offenders. Some consensus. Next, the majority brings in the law of foreign countries as evidence that our own death penalty law is an abberation in terms of international legal norms. How exactly foreign law should somehow trump the will of the people as expressed by state legislatures and our own constitution is beyond me, but it certainly is a nice, flexible way for the justices to justify the imposition of their own will on the rest of us.

Justice Scalia wrote a biting dissent, the introduction to which expresses the problems with today's decision better than I can hope to (citations omitted):


In urging the 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." (Federalist No. 78). But Hamilton had in mind a traditional judiciary, "bound by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." 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. ... The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of the Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Once again 5 liberal justices -- and the liberals cheering this decision -- have succeeded in supplanting the will of the people with their own, supposedly more enlightned ideas. Once again they put their own policy agenda above the higher law of our land and the principles of democratic rule. If we have much more of this, drastic change, perhaps via impeachment, or systemic change, via constitutional amendment, may be necessary given the malfunctioning of a judiciary meant to judge but bent instead on exercising its will.