[ January 03, 2003: Message edited by: Ump25 ]

[ January 03, 2003: Message edited by: Ump25 ]

It's my understanding that the court was pointing to an emerging national consensus as to what constitutes "cruel and unusual punishment" since for the first time a majority of states now either forbid capital punishment altogether or ban it in the case of the mentally retarded. I think this makes sense -- I hope not many of us would want to be trapped in a late 18th century interpretation of "cruel and unusual." By choosing to use the "C&U" phrase in the Constitution and not specifying what forms of punishment it applies to, the founders left it for each generation to decide what constitutes "cruel and unusual".

And as far as being a "split" court, this 6-3 decision was less split than the 5-4 one that said it was okay kill the mentally retarded.

[quote] "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." --Thomas Jefferson to Samuel Kercheval, 1816.

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[ June 20, 2002: Message edited by: Lots-of-us ]

I am NOT a judicial activist by any stretch of the imagination and I routinely object to an expansive reading of the Constitution and to courts that find newfangled rights in "emanations and penumbras" of various clauses and amendments.*

That said: this was a solid, sound, just and constitutionally-based decision. To execute the severely retarded violates the solid principles set forth in our constitution. It also runs counter to the core values of this country (natural law!). If I were on the Court, I would've based my decision on the due process clause, as the severely retarded cannot participate fully in their own defense. But the Eighth Amendment prohibition against cruel and unusual punishment will suffice.

DISCLOSURE: I am strongly anti-death penalty, although I do recognize that capital punishment is generally permitted under the Constitution, as out constitution permits deprivation of LIFE, liberty or property as long as there is due process of law. So if someone receives all the process that is due, then that person can be deproved of life, i.e., executed by the state.

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* The supposed "right to privacy," upon which Griswold v. Connecticut (married couples have a constitutional right to purchase and use birth control) and the notorius Roe v. Wade (constitutional right to abort babies) is based, according to the Supremes, on "emanations and penumbras" from the Ninth Amendment.

[quote]Originally posted by Ump25:
What troubles me more, now, is the possibility of defendants claiming they're mentally retarded to avoid the death penalty. Plus, what measurement do we use to establish mental retardation? What if one State wishes to use an IQ of 70, while another chooses to use an IQ of 60, yet another an IQ of 85?

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States' rights.

The U.S. Supreme Court, and the federal constitution, can set a floor below which a state cannot fall, but the states are free to provide greater rights. Just like with other constitutional rights. The Supreme Court has ruled as to what constitutes an unreasonable search and seizure, but any particular state can afford its residents greater protections. The State just cannot provide lesser protection.

I read the decision such that a State might not be able to set the bar at 60, but a state would be free to set the bar higher than 70, even up to 85. Just like a state is free to bar use of the death penalty entirely. At some point, though, if the cut-off is too high, like say 120, it looks arbitrary and that would fail constitutional muster too.

[ January 03, 2003: Message edited by: Ump25 ]

Well to add my two cents in for what is worth...

It is interesting to note that the dissenters do not accept "National consensus" phrase (although the majority backed up that phrase with facts, including that only 20 states now have laws allowing the execution of mentally retarded persons), when it goes against their views but yet (and i hope i remember this correctly), did not Rehnquist agree in Bowers v. Hardwick that "majority sentiment" could be used as a valid reason for upholding a law, especially when it was a "morality" law.

Although I rarely agree with Scalia, I have always been impressed with his legal reasoning, yet in this decision, I feel that he doth protest to hard about opinions based on personal views...like he has never done this!!!!!

[quote]Originally posted by Ump25:
Again, I remind folks that there was no such "national consensus" in 1973 when Roe was decided. Indeed, at that time, there were more jurisdictions which prohibited it than permitted it, so one could have concluded the national consensus was NOT in favor of killing preborn babies.

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WARNING WARNING WARNING
Digression on to the subject of Roe v. Wade that is double-plus-ungood in that it takes this thread off-topic and it is controversial.

I disagree with your contention that there was no national consensus re Roe v. Wade. To the contrary, there was an EMERGING national consensus to permit abortion on demand as state after state were rapidly liberalizing their abortion laws. I am militantly pro-life -- I converted to Catholicism late-in-life largely because I am pro-life -- so this next sentence will come as a shock: I have now come to the conclusion that Harry Blackmun's decision in Roe v. Wade was a good thing.

By short-circuiting the political process and imposing a pro-abortion agenda in all 50 states, Roe v. Wade gave birth to the Right-to-Life movement. By imposing a position due to judicial fiat, and by preventing a consensus from emerging through the political process, there suddenly were effective challenges to the wholesale legalization of abotion services. The public, in large part, accepts the results of the political process. It does not accept the an imperial judiciary. Harry Blackmun and Roe v. Wade caused public opinion to begin turning against abortion-on-demand.

AND NOW ... back to regular programming.

I am a Republican, and I am fairly conservative. I have, until recently, been a staunch death penalty proponent. However, I applaud this decision. A society that can execute the mentally retarded forfeits its right to any moral high ground; it is shocking in the extreme that this was being done in the 21st century. I do think the argument about a national consensus carries weight. Remember, about 100 years ago public floggings were an acceptable punishment; they were abolished in large part because of the national consesus that built against them. I do believe that laws need to reflect the will of the populace, and this decision does just that.

Ump25, I thought better of you, because Rhenquist and Scalia say a thing does not make it so. There is nothing in the article you posted to indicate that the majority of the court is basing the decision on "personal feelings" other than a direct quote from Scalia. Certainly this "national consensus" idea is one that has been and will be a continued source of contention, as it is supposed to be. I think there are two strong movements in this country right now, one away from death as a judicial penalty and one toward it. The middle ground seems to be dissappearing rapidly.
I don't think the Supreme Court should sit on the sidelines of the national debate. I don't think they should make policy, but it is their responsibility to interpret the constitution in the context of the current social norms. This is a federal government that not only means that we have a centralized army and foreign policy, but that we have national standards of laws and rights. Those standards are the rulings of the supreme court. It is one thing to say that every state gets to decide how fast you can drive, it is another thing entirely to say that every state gets to decide what standards they must meet when killing citizens. Congress doesn't have ultimate authority to dictate state laws. The executive cannot mandate state policy. But the supreme court is empowered to tell the states what they can and cannot pass as law and policy. Because they have this power, they must be watched carefully and always second guessed. But it is their power, and if you don't like their decissions, the only remedy is to elect a president and a senate who will put more people who think like you on the court. Right now, after 8 years of a Democratic white house, there are more people on the court who want to limit the death penalty rather than expand it. If you disagree, you'll have to elect GWB to another four years, and I hope with every ounce I can that you are unsuccessfull.

Before anyone takes a stand on this case, I hope he reads all three opinions: the majority and Rehnquist's and Scalia's dissents. They were required reading at work today,* because of the work we do, and I personally find Scalia's position the best reasoned in light of the facts of this case, which he alone took pains to fully expound. If you haven't read all three opinions, please do so and tell me if you don't also agree.
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*Until noon, at least. Then we headed over to Pac Bell to watch the Giants trounce Tampa Bay 10-2. Great game, lousy opinion.

[ January 03, 2003: Message edited by: Ump25 ]

Would Ricky Ray Rector meet Ump's standards of retardation? You know, the mentally enfeebled (by his own gunshot) killer who left the dessert of his Last Meal in the cell when he was cynically executed by Governor Clinton, because he thought he was coming back from his Last Walk?

If there are still human beings in a few centuries, I hope they will be amazed that we considered ourselves a civilized society.

[ January 03, 2003: Message edited by: Ump25 ]

I don't want to comment on the death penalty, We all have our own instinctive views for which we try to find "logical" supporting arguments".

I would however suggest that the mentally sub-normal should never be convicted of murder, but only of some lesser charge due to diminished responsibility.

[quote]Originally posted by jamesw:
[QB]I don't want to comment on the death penalty, We all have our own instinctive views for which we try to find "logical" supporting arguments".
QB]

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Not all of us, friend. Some of us actually govern our thoughts by law and logic and leave instinct to the animals - and their own rather ruthless judicial system. Read what your great countryman LCJ Sir Matthew Hale said about the law of diminished capacity, and wonder why our Supreme Court grabbed the means of interpreting it from juries' hand and shoved six of the nine Justices' instincts into every American courtroom.