The bottom line is that you have a fundamentally different theory of what the Constitution means and how it works than I do. That's fine. Your entitled to your opinion
Of course because the Govt has the power to do something doesn't mean they are required to use it. Duh. The govt has the power to indict, it doesn't mean they are required in every case. They have the power to declare war. It doesn't mean they are required to do so. The Govt only has powers that are granted to it by the Constitution. The Constitution clearly grants and recognizes the power of the Govt to issue Capital sentences, if they choose to do so.I never said, the death penalty is mandatory. That's absurd. It isn't in states either. If MA wants to abolish the death penalty, by all means they have every right to do so. But if TX wants to maintain the death penalty, the SCOTUS has no authority or right whatsoever to bar them from doing so.When did I ever say the death penalty is required?
Our argument is this: You claim the Constitution forbids the govt or the states to use the death penalty, if they so choose. I claim the opposite and that there is no textual basis for your claim but that there is an extratextual basis involving "aspirational" arguments, "evolving standards of decency" and other things that give carte blanche to judges to rule as they desire.You've yet to provide any textual basis to support your claim. Cite me the Constitutional text that forbids the govt or the states from using the death penalty. You can't.
They didn't put some amorphous principle in. The 8th amendment comes directly from the common law and the Revolution of 1688. Blackstone explicitly defined it. All the framers knew what it meant. It's basic ConLaw that when a term of art is used or reference is made to a term from the common law, that the term is to be construed according to its commonly known meaning, not some greater pronciple it embodies or some evolving standard.
A better question for you would be, if the framers wanted to ban the death penalty, why didn't they simply "Congress shall pass no law providing for a pnishment of death" or "The right to life shall not be violated, and no capital punishments shall be issued" or an unabiguous wording? How come they didn't do that? They did it in all the other amendments.
If you take your approach that when the framers said A, they really meant B, or what A might mean in 200 years, then the entire Constitution is worthless. Words and phrases cease to have meaning and the Constitution means whatever Bill Brennan says it means, not what the text was ratified to mean.Let's use your approach and imagine a conservative activist Court.
Imagine Justice Scalia writing for the Court:Even though it is apparent that at the time of the ratification of the 5th and 14th amendments, the term "person" was not understood to include zygotes, embryos, or fetuses, "evolving standards of decency" and our continuing quest to fulfill human dignity and allow each person to define themselves according to sweet mysteries of life, have led us to conclude that the time has come for a reassessment.
The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.Therefore, consistent with the 5th and 14th amendments guaranteeing all persons a right to life, and our fulfilling of the promise made to all Americans, we hold that Roe v Wade and PP v Casey were grievously wrong decisions and we correct those mistakes by hereby invalidating all state laws permitting abortions and will now now call on those states to enforce and respect the dictate of the 14th amendment.
Further we hold that as per the 5th amendment, the federal govt is also hereby compelled to use its powers to end the practice of abortion. In sum, the 5th and 14th amendments now compel a nationwide ban on abortion.We shall not again canvass the reasons that led to that conclusion. We emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State must treat its persons in a manner consistent with their intrinsic worth as human beings -- and take all measures to prevent acts degrading to human dignity. A judicial determination whether the practice of abortion comports with human dignity is therefore not only permitted, but compelled, by the Clause.It is So Ordered.
Would liberals like that opinion? Would they hail it as a masterpiece of human dignity and freedom? It was cribbed almost word for word from Brennan's death penalty opinions and Dworkin's idea of aspirational meaning.
As a textualist, that opinion would be as offensive to me as the Roe opinion was, perhaps worse. If Justice Scalia were to write such an opinion, he, along with any Justice who joined him should be impeached immediately. In fact, Justice Scalia has explicitly said as much and has stated that becuase he is a textualist, he does not have the authory to write an opinion like that, even though he would most assuredly want to if it was up to him.
Your approach provides no brakes, nothing to constrain a Judge. Under yours and Dworkin's and Brennan's approach, the only thing holding judges back is their own shame.Under my approach, it's the text of the Constiutution that constrains them. You don't like what the text say? Then amend it as per Article V. It's been done.
Of course because the Govt has the power to do something doesn't mean they are required to use it. Duh. The govt has the power to indict, it doesn't mean they are required in every case. They have the power to declare war. It doesn't mean they are required to do so. The Govt only has powers that are granted to it by the Constitution. The Constitution clearly grants and recognizes the power of the Govt to issue Capital sentences, if they choose to do so.I never said, the death penalty is mandatory. That's absurd. It isn't in states either. If MA wants to abolish the death penalty, by all means they have every right to do so. But if TX wants to maintain the death penalty, the SCOTUS has no authority or right whatsoever to bar them from doing so.When did I ever say the death penalty is required?
Our argument is this: You claim the Constitution forbids the govt or the states to use the death penalty, if they so choose. I claim the opposite and that there is no textual basis for your claim but that there is an extratextual basis involving "aspirational" arguments, "evolving standards of decency" and other things that give carte blanche to judges to rule as they desire.You've yet to provide any textual basis to support your claim. Cite me the Constitutional text that forbids the govt or the states from using the death penalty. You can't.
They didn't put some amorphous principle in. The 8th amendment comes directly from the common law and the Revolution of 1688. Blackstone explicitly defined it. All the framers knew what it meant. It's basic ConLaw that when a term of art is used or reference is made to a term from the common law, that the term is to be construed according to its commonly known meaning, not some greater pronciple it embodies or some evolving standard.
A better question for you would be, if the framers wanted to ban the death penalty, why didn't they simply "Congress shall pass no law providing for a pnishment of death" or "The right to life shall not be violated, and no capital punishments shall be issued" or an unabiguous wording? How come they didn't do that? They did it in all the other amendments.
If you take your approach that when the framers said A, they really meant B, or what A might mean in 200 years, then the entire Constitution is worthless. Words and phrases cease to have meaning and the Constitution means whatever Bill Brennan says it means, not what the text was ratified to mean.Let's use your approach and imagine a conservative activist Court.
Imagine Justice Scalia writing for the Court:Even though it is apparent that at the time of the ratification of the 5th and 14th amendments, the term "person" was not understood to include zygotes, embryos, or fetuses, "evolving standards of decency" and our continuing quest to fulfill human dignity and allow each person to define themselves according to sweet mysteries of life, have led us to conclude that the time has come for a reassessment.
The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.Therefore, consistent with the 5th and 14th amendments guaranteeing all persons a right to life, and our fulfilling of the promise made to all Americans, we hold that Roe v Wade and PP v Casey were grievously wrong decisions and we correct those mistakes by hereby invalidating all state laws permitting abortions and will now now call on those states to enforce and respect the dictate of the 14th amendment.
Further we hold that as per the 5th amendment, the federal govt is also hereby compelled to use its powers to end the practice of abortion. In sum, the 5th and 14th amendments now compel a nationwide ban on abortion.We shall not again canvass the reasons that led to that conclusion. We emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State must treat its persons in a manner consistent with their intrinsic worth as human beings -- and take all measures to prevent acts degrading to human dignity. A judicial determination whether the practice of abortion comports with human dignity is therefore not only permitted, but compelled, by the Clause.It is So Ordered.
Would liberals like that opinion? Would they hail it as a masterpiece of human dignity and freedom? It was cribbed almost word for word from Brennan's death penalty opinions and Dworkin's idea of aspirational meaning.
As a textualist, that opinion would be as offensive to me as the Roe opinion was, perhaps worse. If Justice Scalia were to write such an opinion, he, along with any Justice who joined him should be impeached immediately. In fact, Justice Scalia has explicitly said as much and has stated that becuase he is a textualist, he does not have the authory to write an opinion like that, even though he would most assuredly want to if it was up to him.
Your approach provides no brakes, nothing to constrain a Judge. Under yours and Dworkin's and Brennan's approach, the only thing holding judges back is their own shame.Under my approach, it's the text of the Constiutution that constrains them. You don't like what the text say? Then amend it as per Article V. It's been done.
posted by SarahWeddington | 10:02 PM
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