The Anti-Judiciary Movement in America

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The problem with this child or youth execution case is this:

The supreme court had to decide a case about wether it is right to use the death penalty on a youth or not.

You practically expect that the Supreme Court should have said: "Well Kid, suck it up. As there is no exact law on your case, would you be so kind to come back when there is one? Because we can impossibly decide it now. Come back in ten years, perhaps then Congress was so kind as to consider your sort of cases. Till then, live .... errr ... long and prosper ...

*fry fry fry*

Oh, thank you dear Supreme Court. I'll appreciate it in my next life!"

Wouldn't that be a little cheap?

That decision would have meant to sacrifice a human being for a legal principle. Should the judges have done that?

How about individual 'justice'? This was a live or die issue. Accepting such a verdict would probably ask a little too much understanding of the plaintiff - and evidently that wasn't lost on the Supreme Court, too.

The judiciary isn't there to serve the politicos or the rules as such - the rules are mere tools on how to achieve justice - it is there to serve the people.

Had they denied legal competence that would have not been effective legal protection. A *timely* legal protection by the courts is one crucial element of a country under the rule of law.

Try to put yourself in the shoes of that kid: Legal protection *after* the execution doesn't help much. In the kids situation, you'd maybe better understand this case.

It is in this light that you have to see the verdict in this case. They had to find a 'just' decision and had to fill a sphere of law that was left untouched by the constitution and the lawmakers to decide this individual case. So be it. And they decided to let europeans laws inspire them? So what? Small price.

And I think the result is acceptable, as much as the solution is a pretty sound argument, too. Good work from a legal point of view.

[ April 04, 2005, 08:24: Message edited by: Ragusa ]

 

Laches,

Sorry, but if I want to see what the Supreme Court's powers are, I will refer to the Constitution, not to the website that they publish.

NS, thanks. Your points are also well made, and I agree with most of what you say, though you seem to be in favor of the courts purposely buffering the other branches by taking a position of purposeful hostility, which IMO would be a very dangerous slope to be on.

Ragusa,

Your whole argument is based solely upon the ends justifying the means. That has lead to many a dictatorship and/or oppressive gov't in the past.

 

Maybe. It has also been used to achieve the opposite.

There is also this point: When the judges didn't find a US law to be able to decide on, why was that so? How about the right of the executive branch (quite literally) to kill the kid?
Shouldn't there have been a law based on constituional law giving them the right?
I think, if that had been so, the Supreme Court probably had decided different. The point is, it likely wasn't.

You'd rather see the kid abandoned and fried with this hoax of an excuse I lined out? Sometimes judges gotta do what they gotta do. When justice is the end, the means justify it.

Funny enough, I give your Supreme Court much more benefit of doubt than you do. Consitutional judges are a rare breed, legal heavyweights, and they are responsible only to their consience when they have to decide on unknown grounds - and as a rule of thumb they have integrity.

[ April 04, 2005, 17:08: Message edited by: Ragusa ]

 

@ Darkwolf -

Regardless of what you want to read or don't want to read, you are incorrect. Even if you want to put blinders on and look only at the exact text of the Constitution, you are incorrect - look at Article III of the Consitution.

Edit - also, Darkwolf, have you read the opinion re the death penalty and juveniles?

 

I really didn't want to drag this into a discussion of the Supreme Court and its powers, but since you insist…

In reality, the powers of the Supreme Court are not specified in the Constitution, or any other document. The Founding Fathers did a poor job IMO of handling the judicial branch. Purists can put forth all kinds of arguments that the FF did this on purpose, but IMO as a body they just dropped the ball as they couldn't agree and couldn’t foresee what the courts would become. I know that individual members of what we consider the Founding Fathers wrote at length in regards to the judicial branch, but they didn't do anything about it, and some of this writing is pure CYA.

Now as far as where the courts are today and how they got there. Please keep in mind that a lot of this is from things I haven't studied since college, so there may be some corrections of dates, titles, and minor details, but I believe that it is substantially factual. In its infancy the Supreme Court was by far the weakest branch of the gov't. It wasn't sure of its powers, as I stated above, they are not clearly outlined. There was even some question as to whether or not the Supreme Court could judge the Constitutionality of a law. Then in the late 1700's or early 1800's there was a land mark case, Marbury vs. Madison, which Chief Justice Marshall used to begin to define the role of the Court, and specifically the courts authority over the determination of the Constitutionality of laws passed by the Federal (and State, but I believe that came later, can't remember) legislature.

Now, the pioneers of our legal system, borrowing much from England's court system, established a system by which cases are tried in lower courts. If a person is dissatisfied with the decision of this lower court he/she could appeal to a higher court (of course double jeopardy is restricted). However, the case was not re-tried in the higher court. Unless there is a specific question about a specific piece of evidence, the appeal court primarily looks to make sure that there were no improprieties in the trial. If a person is still unhappy with the Appeals court's decision, they can appeal higher, but not for the same cause, meaning that if the trial court and the appeal court both found the evidence as valid, then the next higher court will refuse the case. This goes on from the State courts all the way to the Supreme Court. However, traditionally, that being the precedent, the Supreme Court has only examined cases from a standpoint of constitutionality of the ruling or the law.

This system has provided a check and balance for 200 years, and is set in a very solid precedent. The men who have been appointed to the Supreme court have always, regardless of which side of the aisle they were appointed from, been chosen for their dedication to maintaining a restrained judiciary, as even back in the founding fathers time, many believed that the Judiciary provided the greatest threat for abuse and tyranny in the system they had created (I am sure Chandos can provide the applicable quote from Jefferson, Hamilton, or Franklin that applies to this, I can't pull it off the top of my head, but I know that at least one of them wrote about such fears). However, in recent years it seems that the appeals courts (which is what the Supreme Court is) have taken a more activist role in the application of law and the establishment of new precedents that overturn many existing precedents, without the representatives of the people and States (the legislative branch) passing laws. Once precedent is established, it is supposed to stand unless addressed by the will of the people, and this is done through the passage of new legislation, not by activist judges. The only time that a new precedence should be set by a judge is when a new situation that similar application of the existing laws has not addressed.

So yes Laches, if you want to read the letter without looking at the intent or precedent, you are correct, by omission the Constitution does not specifically address the powers of the Supreme Court, however, a web site that outlines said powers does not replace the 200 years of precedence. The current court is headed down a slippery slope, at the bottom of which lies a minefield known as tyranny. This is why I believe that it is dangerous to allow convenient rulings that the majority may agree on to be considered acceptable. The Supreme Court is by far more potentially dangerous to the liberty of the people than any single president or legislator could ever be, at least in our form of government, and that is not a puffery statement, as some of our most famous Founding Fathers wrote essentially the same thing.

Edit,

No, have read most of the dissenting opinion, and some of the ruling, but I have not the time or inclination to read the entire ruling.

 

Darkwolf,
Well, my contribution to this thread regarding SCOTUS and execution of juveniles was admittedly a shot from the hip, legal gut feeling so to say. Unhappy with this lack of professionality I have decided to do some research

I have checked the SCOTUS transcript of some of the hearings about juvenile executions and after what I read I think I can now tell what the use of evil and alien the european law boils down to: The question wether capital punishment for minors is cruel and especially unusual.

Where european law is involved is, hold your breath, the question what 'unsual' means. In a semantic and a logical sense.

The argument goes along the line: As the US are one of very few countries that execute juveniles, they are an exception. The majority of countries (the example was the European Union) don't execute at all, and especially not kids.

As the US are an exception from this consensus, their practice is unusual.

That is logical. And that is a semantic argument. And it is correct. And that's it.

And it is supported by the argument that of all US states just three, Texas (of course), Virginia and Oklahoma, execute juveniles. And those three States account for about 11 percent of the population of the country, 11.3 percent.

So even in a US context execution of juveniles is unusual. As I guessed, the european consensus was used as an aid argument.

To say that amounts to use european law in the US is hysterical.

This is about interpretation of the VIII Amendment, solelely about US law.

I can't dive deeper into this because I frankly don't have the time. But I hope I at least cleared this up.

[ April 04, 2005, 21:06: Message edited by: Ragusa ]

 

Very well done Ragusa!

 

Ragusa,

Determination of what is cruel or unusual has nothing to do with any body outside of the US. The people of the US should decide what is appropriate for themselves and what is not, regardless of foreign laws, and in this case it was used to support the majority opinion, and it should not have been. I am not hysterical in regards to this issue, and I am not crying that the sky is falling. I am stating that there is a disturbing trend to try to set precedents by tying US law to foreign law, and that it should be stopped before it becomes a true precedent, as this would de-facto place our sovereignty in jeopardy.

As far as the execution of minors under US law, that is a separate discussion, and I will close out what I have to say about that with one statement, if it looks like a rose, and it smells like a rose, it is a rose: if a minor chooses to behave as an adult, and has the mental capacity of an adult, then they should be treated as one, as it is illogical to state that a person 17 years and 364 days old gets a different punishment than a person who is 18 years old, thus it is not cruel or unusual to punish minors with the death penalty provided they have the mental capacity of an adult.

 

@ DW -

You're jumping all over the place. First you say, let's not look at what SCOTUS has said its powers are, look at the Constitution. Then you say, you can't look at just what the Constitution says.

But whichever it is, you're still incorrect. You're incorrect about the type of men who have historically been appointed to the bench - whether you look back to Marshall or more recent to the Warren Court. You're incorrect about the limit of the Court's powers with respect to what it is to determine - even if the face of Article III is muddy it is clearly broader than the powers you contend it grants. You are incorrect in saying that there has been a rise in judicial activism recently - that was said in the 1960's with the civil rights movement just as it was said in 1801 with Justice Marshall (although it may seem that way to you since, well, you weren't around in 1801.) If anything, this court has FAR LESS 'judicial activism' than courts in even the not so distant past.

I have a great deal of sympathy with concerns over judicial activism. I have sympathy for the originalist theory of interpretation with respect to how one ought to interpret the law. But the hysteria evident in your post as it reflects the hysteria evident in some sections of our society is not something that I have sympathy for. By the way, where is the hysteria over Michigan v Long, or Seminole, or... I think I know.

And the hysteria is so poorly supported all too often. As an example,(and I don't mean to pick on you, it's just the most appropriate example in this context), Darkwolf is vehemently critizing the Roper v. Simmons decision without having bothered to read it. If you read the opinion, you'll see that the bit about international opinion is a throw away line. The larger supporting rationale relates to changes in 5 states in the US, the number of states which don't allow the death penalty to be used with juveniles, etc. That this was the significant factor in the decision and not international opinion (which the court noted had no binding effect at all) is apparent to anyone who reads the decision - which isn't even that long of a decision as far as these things go.

And, I tend to agree with Scalia on this case. Scalia is, in my opinion, correct. The support for the overuling of past decisions seemed weak to me. But the weakness of the supporting rationale in the majority opinion isn't as weak as the 'runaway judicial tyranny' cries in my opinion.

 

I know this line is slightly off topic, but I just want to comment that this completely illogical Darkwolf.

You can act like your 21, but you can't buy booze, you can act like your 18, but you can't vote. Why not? Because the law in it's wisdom says that regardless of mental capacity etc, persons under said ages should not do so since they are unlikely to be mature enough to treat with care etc.

Well, as you rightly pointed out in another thread, laws should not be made for specific cases, but in general. To argue to that one juvenile is fit to be executed, but another perhaps older one is not is clearly never going to work. Just like arguing that a clever 12 year old should be aloowed to vote, or buy booze.

 

Laches,

First off, to be perfectly honest, I was simply putting you off, as I really didn't want to go down this road, as I am not that vested in the issue, and it is not my area of expertise. I am not an attorney, and am not that concerned about this issue. I simply got sucked in because it didn't seem like anyone wanted to represent the conservatives, so I acted as a proxy. What I typed about the history of the Supreme Court is literally about all I remember from school, and I graduated in 1992 (with a BS in Finance/Econ/Accounting), so you do the math. According to you, what I can recall of what I learned is incorrect, and you obviously have more experience with this issue, so I will concede the point.

Second, I am not hysterical, and frankly I am getting a little offended about being accused of it. Such accusations are made purely to undermine the integrity of the other party, provide no substance to the discussion, and frankly, weren't provoked in this case.

Third, I stated that there is a trend. I have never said that the Judiciary is going to hell in a handbasket. Trends are something to observe, not panic over. Not watching trends has led to many major problems in our history, just as jumping at something that isn't a big deal. The judiciary is always under scrutiny, and deservedly so. If in your opinion the judiciary is fine, and that it is not acting in an inappropriate manner, then I will respect your view, as you obviously have more in depth knowledge than I do.

Third, I never said that the court is acting in a manner that is more activistic (not a word, but I really don't care at this point) than in its history. When I said recent history, I was implying in the last 10 or 20 years, not 40 years, and I could be wrong about that as well. Again, I am concerned about a trend, and I don't like any foreign law being quoted in the determination of precedent for US laws.

Fourth, I am not calling for any radical changes to the Judiciary. I have pointed out why conservatives are pissed off at the courts, stated what I agree with them on, and pointed out where I differ with them.

Finally, as I am not a lawyer, and I cannot quote all the specific cases that you do. I am not familiar with cases that you point out, so I have no opinion about them (and will have none, as I am tired of this debate, and the fact that everyone is starting to take this personally). As I have demonstrated that I do not move in lock step with the conservatives in this country, I resent the implication that my position on the judiciary is someone driven by an agenda that is being spoon-fed to me, and that I am driving their agenda. In this case I, other than the fact that I don't like the upper courts referencing foreign law, even if they immediately invalidate such references. There is a purpose to it, or they wouldn't do it, and I don't know what good purpose there could be for doing it.

Now, I am done with this thread, because I really quit giving a damn about 2 posts ago.

OUT!

Edit:

I don't believe I am doing this.

Viking, it may be illogical, but not for the reasons that you provide. You are comparing apples to oranges. We would have to individually evaluate every minor for every thing that we restrict him or her from, but not every minor commits a crime worthy of punishment by the death penalty. It is a matter of practicality and importance to society. We already evaluate a lot of minors for treatment as adults based upon the crime they commit, and the Supreme Court didn't alleviate that with their ruling.

In fact, we would not be making a law for a specific case. The law simply would state that if you commit a crime, and are judged competent to be punished for that crime, you will be subject to a maximum of X punishment.

I can turn your argument against you as well. The law doesn't make sense now that the Supreme Court has meddled. I mean, either we try a minor as an adult or we don't. Now they can be tried as an adult, but can't get the death penalty because they are a minor? Either they are an adult and are subject to the laws of adults or they aren't, so we now have special cases for minors who are tried as adults, but punished as minors.

[ April 04, 2005, 21:57: Message edited by: Darkwolf ]

 

Darkwolf - You are arguing from a purely Jeffersonian viewpoint here, one which I tend to agree with, BTW. While you may be inclinded to believe that the Founding Borthers "dropped the ball" on this issue, I could not disagree more. Thomas J. and John Adams were not a part of the framing of the Constitution, since they were both in Europe at the time. They both still had an impact, but they were not a part of the Convention: Adams' draft of the Constitution of Massachusetts was a part of the model for the Federal Constitution; and Jefferson suggested the addition of the Bill of Rights to Madison, who was there, and considered by many to be the "Father of the Constitution." It is a term I don't agree fully with, since on some major issues, during the convention, he did not get his way on in its final framing - the final document truly was an effort by committee, and many hands were in its crafting.

And while you may not be a lawyer yourself, many of the founders were. In fact, it can be argued that the country was founded by a bunch of lawyers. But let's not beat around the bush here - many of the founders wanted some areas of the government to be insulated from the "passions of the masses." I am speaking from a Hamiltonian viewpoint here, but one, which regarding the Constitution, can not be discarded very easily. It is no accident that the "Federalist Society" has become a major part of the judicial branch of our government, and its shaping, in more recent years. And it is quite active on issues that may or may not be the intent, or will, of the People, or even Congress for that matter. These issues for them, as they were for Hamilton, and to a lesser extent, John Adams, were issues of law, and not issues of representation.

The Founding Brothers didn't drop the ball, but they understood, on some levels, that the ongoing argument between the Jeffersonian and the Hamiltonian viewpoints would remain ongoing, even into today, and that altough at times there is tension in our system between the different powers, that tension is a part of what keeps the system running (this goes to the heart of what DMC was saying earlier). The Founders were really quite brilliant in this regard. The tension, and its balancing, was there in the machinery of government from the beginning, as it is still with us today. But the system continues to work, for the most part.

[ April 04, 2005, 23:59: Message edited by: Chandos the Red ]