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Tuesday, May 18, 2010

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william

Actually, there is plenty of authority for this result in the constitution. Just read the actual text of the Constitution:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Obviously, the Founding Fathers did, in fact, intend to prohibit punishments that were cruel and unusual. They put this broad, open-ended clause in the Constitution, specifically to ensure that. Here, the conservative judicial doctrine of strict construction founders, precisely because the wording in the constitution is boundless and in fact, the clause seems to invite exactly the type of reasoning engaged in by this Court.

Miranda

Well, now, I think the court is being a bit too Anglo-Saxon on this one. Surely we ought to also consider the opinions of our friends in Iran and Sudan in these matters. World Opinion is of great importance and it would be a shame to leave anyone out.

William

BTW Miranda, "not me" - lol

KB

William: I hate to admit it, but you have a point. The language in the eight amendment is clearly relativist. But it's hardly "boundless". If it were, we wouldn't need a constitution anymore, would we?

To be sure, "excessive" and "unusual" are temporal variables. Even Justice Scalia (may his name be praised!) admits that we can't flog people anymore. A pity, that. But if the Court is to interpret the law rather than writing its own sentiments into the margins, it has to take its lead from what is excessive and unusual in practice. Justice Thomas shows that current practice in the various states tells against the Court's decision.

William

KB,

I think you make the better point. "lower case william" appears to argue that the Court should use the personal standards of its membership to define contemporary standards of society. When it does so, it puts the "cart before the horse" and makes law in its own reflection, rather than interpreting law based on the Constitution and current societal standards. The Court thus attempts to "bend" society in its image, which is outside its jurisdiction.

You are correct when you point out that "these are judgment calls, not legal questions. Legislatures and juries exist to handle the former."

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