Justice Stevens Fires a Shot Across the Bow

[Brown]

In the death penalty 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]

"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 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.

 

[NoZed Avenger]

Disband the legislatures now -- federal and state.



The law is officially what 5 people say it is.


N/A

 

[Tony]

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]

Re: Re: Justice Stevens Fires a Shot Across the Bow

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]

Re: Re: Re: Justice Stevens Fires a Shot Across the Bow

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]

No it's not.

Yep. It is.

(hey -- this is fun)

 

[Jocko]

Re: Re: Re: Justice Stevens Fires a Shot Across the Bow

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]

Re: Re: Re: Re: Justice Stevens Fires a Shot Across the Bow

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]

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]

Re: Re: Re: Justice Stevens Fires a Shot Across the Bow

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]

Re: Re: Re: Re: Re: Justice Stevens Fires a Shot Across the Bow

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]

Re: Re: Re: Re: Justice Stevens Fires a Shot Across the Bow

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.