Evolving Standards of Decency

[John Galt]

Hello all. This is my first post here, and itis a paper I have written. I am sorry about the length but if any of you choose to read it, I would welcome criticism. It is in three parts, all below.

The Eighth Amendment & The Evolving Standards of Decency that Mark the Progress of a Maturing Society


The judiciary… it may truly be said to have neither FORCE nor WILL, but merely judgment.
-Alexander Hamilton, Federalist 78, June 14, 1788​

In 1989, the Supreme Court of the United States held that mildly mentally retarded persons (those that were not “idiots” or insane) could be executed in compliance with the Eighth Amendment of the Constitution (Penry v. Lynaugh). Also that year, the court held that persons under the age of 18 were in fact competent enough to face execution (Stanford v. Kentucky).

Then, in 2002, the Supreme Court of the United States ruled that all mentally retarded death row inmates no longer have to worry about the demise their respective juries sentenced them to: all were found incompetent to receive their due punishment (Atkins v. Virginia). In 2005, the Supreme Court again granted clemency to a large classification of offenders, this time, those under 18 years of age were saved from what their peers thought was a rightful penalty (Roper v. Simmons). Saved from execution included one man, John Bernal of Texas, who, the day before he turned 18, murdered a man in a stickup (Wallis et al 40). The Court found that if people like John Bernal were one day older when they committed their crimes, they would have been competent enough to face the equality the law is supposed to provide. When one wakes up in the morning on their 18th birthday, the Court must surmise, they are immediately struck by the fact that for the first time in their life they are competent enough to be responsible and know right from wrong.

What made the switch? Justice Anthony Kennedy decided that our “evolving standards of decency” over the past decade and a half have “evolved” so much that it gave the court the power to force the rest of the country to “catch up” (Kennedy, opinion, Roper v. Simmons 2005).

The phrase “evolving standards of decency” comes from a Warren Court case, Trop v. Dulles, dealing with the Eighth Amendment’s protection against “cruel and unusual punishment” in regards to stripping someone of “nationality” if they are a wartime deserter (Warren, opinion, Trop v. Dulles 1958). Warren wrote with a bare majority, “The Court recognized …that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (Ibid). Never paying much heed to the point of view that the executive and the legislative branches are supposed to keep up with fashion while the judiciary is meant to interpret existing laws and keep faith to the static words of the Constitution, Warren opened the door with this phrase for a flood of cases dealing with our ever “evolving standards of decency.” One must wonder if Warren believed we could ever devolve, and whether or not the Court should lead the charge into the abyss.

In dissent, Frankfurter pointed out that stripping someone of nationality for wartime desertion is not a “punishment” but a “consequence.” “Simply because denationalization was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it does not follow that denationalization is a ‘punishment,’ any more than it can be said that loss of civil rights as a result of conviction for a felony… is a ‘punishment’ for any legally significant purposes” (Frankfurter, dissenting, Trop). He continued, “Even assuming, arguendo, that [the law] can be said to impose ‘punishment,’ to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to [desertion] that is capital and has been so from the first year of Independence. Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?” (Ibid). Fourteen years later, the Court would rule that capital punishment itself was “cruel and unusual” as it was used at the time (Per curium, Furman v. Georgia, 1972).

In concurrences to the bare majority, per curium decision of the Court in Furman v. Georgia, Justice Douglas and Justice Brennan relied upon the “evolving standards of decency” first created in Trop. Douglas took the position that the law in Georgia was unconstitutional because it was “arbitrary” and that it would be “‘unusual’ is it discriminated against [a defendant] by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices” (Douglas, concurring, Furman) Brennan went further, and instead of dwelling on whether or not juries are the “procedure” that gives room for play, attacked the death penalty as being “unusual” since it is rarely used. “What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare… When an unusually severe punishment is authorized for wide-scale application but not, because of society’s refusal, inflicted save in a few instances, the inference is compelling that there is a deep seated reluctance to inflict it… I must conclude that contemporary society views this punishment with substantial doubt” (Brennan, concurring, Furman). Justices Stewart and White’s concurrences turn on this idea as well: that since a punishment has become unusual, and was always cruel, it is now “cruel and unusual,” and “freakishly” and “wantonly” imposed (White and Stewart, concurring, Furman).

Chief Justice Burger’s dissent fired back that he views “these cases as turning on the single question whether capital punishment is ‘cruel’ in the constitutional sense. The term ‘unusual’ cannot be read as limiting the ban on ‘cruel’ punishments or as somehow expanding the meaning of the term ‘cruel.’ For this reason I am unpersuaded by the facile argument that since capital punishment has always been cruel in the everyday sense of the word, and has become unusual due to decreased use, it is, therefore, ‘cruel and unusual’” (White, dissenting, Furman). Justice Powell, in another dissent assailing the idea that the Courts must impose the “evolving standard of decency” upon the states, wrote that, “impatience with slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic powers” (Ibid). After new laws were created by the states that ended the supposed arbitrariness seen by Douglas in his concurrence, the death penalty was held up once again (Gregg v. Georgia, 1976). But since then, the “evolving standard of decency” has held much weight on the Court and has restricted the death penalty’s use heavily.

 

[John Galt]

In 1989, as noted previously, the Court held that both “minors” under the age of 18 and the mildly retarded that were all found competent to stand trial, were not being subjected to “cruel and unusual punishment” in receiving the death penalty. Justice Scalia, with whom Justice Kennedy concurred, in Stanford v. Kentucky, wrote for the Court, “Petitioners are left to argue that their punishment is contrary to the ‘evolving standards of decency that mark the progress of a maturing society,’ and that the primary and most reliable evidence of national consensus – the pattern of federal and state laws – fails to meet petitioners' heavy burden of proving a settled consensus against the execution of 16- and 17-year-old offenders” (Scalia, opinion, Stanford v Kentucky, 1989). Refuting the claims that since other laws require minimum ages, voting for example, that minors are not mature enough to face the death penalty, and that the Court should use its own wisdom in deciding what is “cruel and unusual,” the Court said,

• It is, to begin with, absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards. But even if the requisite degrees of maturity were comparable, the age statutes in question would still not be relevant. They do not represent a social judgment that all persons under the designated ages are not responsible enough to drive, to drink, or to vote, but at most a judgment that the vast majority are not…
  We also reject petitioners' argument that we should invalidate capital punishment of 16- and 17-year-old offenders on the ground that it fails to serve the legitimate goals of penology. According to petitioners, it fails to deter because juveniles, possessing less developed cognitive skills than adults, are less likely to fear death; and it fails to exact just retribution because juveniles, being less mature and responsible, are also less morally blameworthy…
  The punishment is either ‘cruel and unusual’ (i. e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court but the citizenry of the United States. It is they, not we, who must be persuaded. For as we stated earlier, our job is to identify the ‘evolving standards of decency;’ to determine, not what they should be, but what they are (Ibid).

That same year the Court, in a 1-4-4 decision of Penry v. Lynaugh also ruled on the execution of the mentally retarded. Ruling that “mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues,” and since the “the jury was unable to express its ‘reasoned moral response’ to that evidence in determining whether death was the appropriate punishment,” the conviction was overruled, with O’Connor penning the Court’s opinion . However, the Court did state that since Penry was found competent to stand trial and was thus not an “idiot,” his mild retardation did not prohibit the use of the death penalty per se (O’Connor, opinion, Penry v. Lynaugh, 1989). In part concurring and in part dissenting, Justice Scalia, with the Chief Justice, Justice White, and Justice Kennedy concurring, quipped that “In holding that the jury had to be free to deem Penry's mental retardation and sad childhood relevant for whatever purpose it wished, the Court has come full circle, not only permitting but requiring what Furman once condemned. ‘Freakishly’ and ‘wantonly,’ have been rebaptized ‘reasoned moral response.’ I do not think the Constitution forbids what the Court imposes here, but I am certain it does not require it” (Scalia, concurring, Penry). Scalia also noted that Stanford v. Kentucky controlled and held that the “inquiry [into mental retardation being “cruel and unusual”] has no place in our Eighth Amendment jurisprudence,” since the states separately should be left to decide this (Ibid).

Just a few years after a decade later, the Court held, in Atkins v. Virginia, that the mildly mentally retarded cannot be held responsible for their actions to the point that they deserve the same punishment of death as someone without mental retardation. Justice Stevens, writing for the Court in an opinion in which Justices Kennedy and O’Connor joined (switching from their position in 1989), said that “It is not so much the number of these States that is significant, but the consistency of the direction of change” and that “even in those States that allow the execution of mentally retarded offenders, the practice is uncommon,” to conclude, “the practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it” (Stevens, opinion, Atkins v. Virginia, 2002). And even though the Court further went on to say, “Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial,” it declared that “because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others,” that they should be denied the equal protections of the law and be stripped of their right to be punished just like every other competent, convicted murder (Ibid).

Scalia, sharp-tongued as ever, fired back in dissent, “Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence… Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members… As the foregoing history demonstrates, petitioner's mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence” (Scalia, dissenting, Atkins). Attacking the Court’s position that some “national consensus” has evolved that says that the execution of the mentally retarded is “cruel and unusual,” Scalia penned,

• [The] bare number of States alone--18--should be enough to convince any reasonable person that no ‘national consensus’ exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to ‘consensus’? ... Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; five were enacted last year; over half were enacted within the past eight years. Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is ‘myopic to base sweeping constitutional principles upon the narrow experience of [a few] years.’ Coker v. Georgia (Burger, C. J., dissenting) … The Court attempts to bolster its embarrassingly feeble evidence of ‘consensus’ with the following: ‘It is not so much the number of these States that is significant, but the consistency of the direction of change’ (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court's ‘consistency-of-the-direction-of-change’ point should be recast into the following unimpressive observation: ‘No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years.’ In any event, reliance upon ‘trends,’ even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication (Ibid).

Scalia went further to explain how “caviler” the Court has become in its Eighth Amendment jurisprudence, writing that,

• Beyond the empty talk of a ‘national consensus,’ the Court gives us a brief glimpse of what really underlies today's decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. ‘“[T]he Constitution,”’ the Court says, ‘“contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”’(Atkins quoting Coker) (emphasis added). (The unexpressed reason for this unexpressed ‘contemplation’ of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all (Ibid).

 

[John Galt]

Three years later, Justice Kennedy would write for a bare majority that a new “national consensus” had emerged regarding the execution of “minors” and outlawed the practice as offensive to the “evolving standards of decency” “clause” in the Eighth Amendment. He explained in Roper v. Simmons, “30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach” (Kennedy, opinion, Roper) He notes further that only “Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years--four through legislative enactments and one through judicial decision,” but relies on Atkins to conclude that “since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it,” and that since “a majority of States have rejected the imposition of the death penalty on juvenile offenders under 18 … we now hold this is required by the Eighth Amendment” (Ibid).

He defends this position with foreign law and the idea that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,” as well as relying on treaties both signed and not signed by this government, and amicus curie briefs that explain that juveniles are prone to recklessness, peer pressure, and lack of “fixed” personality traits (Ibid). In rejecting an opinion he once joined, Kennedy chastises the Stanford Court for not including the minority of states – twelve – that had decided that “the death penalty is inappropriate for all offenders, including juveniles” in showing why no “national consensus” exists. But of course, Kennedy’s use of the term “inappropriate” begs the question – if something is “inappropriate” is it “unconstitutional”?

Justice Scalia again dissented, arguing “[Today’s decision] announc[es] 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. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to ‘the evolving standards of decency’” (Scalia, dissenting, Roper). Again, Scalia points out that merely 47% of the states which allow capital punishment have restricted its use against minors, stating, “Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus” (Ibid). Never fond of the “evolving standards of decency” argument, he dissented further elucidating that

• If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of ‘the evolving standards of decency’ of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation? (Ibid).

Scalia deplored what Kennedy has done in Roper in creating “the new reality that, to the extent that our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years)” (Ibid). To make matters worse from Scalia’s standpoint, this decision affirmed an earlier Missouri Supreme Court decision that overturned Stanford on the grounds of an “evolving standard of decency,” noting that “until today, we have always held that ‘it is this Court's prerogative alone to overrule one of its precedents’” (Ibid, quoting State Oil Co. v. Khan).

As shown above, the Court’s use of the “evolving standards of decency” in regard to Eighth Amendment jurisprudence in capital punishment cases has given the Court the ability to push its own views upon the nation, using sophistries to support their claims. The Trop v. Dulles argument has itself evolved to the point where the Court has gone into the practice of prescribing what the ever-changing standard is for the American people, rather than allowing the American people to discern that for themselves.
Something being “unwise,” “too expensive,” “inappropriate,” or “wrong” does not make that something “unconstitutional.” Only the something odious to a specific Constitutional provision can be “unconstitutional.” Even accepting the idea that the Eighth Amendment allows for the Court to surmise the “evolving standards of decency that mark the progress of a maturing society,” surely there is a need for objective criteria that do not take a myopic stance and looks only at the fashion of the times. The Eighth Amendment is not a blank check for the Court to decide what “cruel and unusual” means. On the contrary, it is very static in its meaning. Of course society does itself “change” or “evolve,” but it also “devolves.” If punishments that were not considered “cruel and unusual” upon the ratification of the Eighth Amendment are today “cruel and unusual,” under the same provision to the Constitution, does it not follow that things considered “cruel and unusual” at the time of ratification of the Eighth Amendment could be considered within the realm of acceptable punishment today? Undoubtedly it does.

Instead of relying on the Court to show the way out of supposed barbarism to civilization, the respective state legislatures, whom are responsive to the ever changing trends in people’s thinking, are the appropriate bodies to decide what the “evolving standards of decency” are. So long as they never devolve to the point that they authorize the use of punishments that were considered “cruel and unusual” when the Eighth Amendment was ratified, they are not creating anything “cruel and unusual.” When something “evolves” it reaches that point on its own. To say that the Court forcing states to comply with what it’s “own judgment” thinks is best is somehow contained within the meaning of the phrase “evolving standards of decency that mark the progress of a maturing society ” does show indeed what Scalia lamented has happened: “Words have no meaning” to the eyes of this Court.
Unfortunate as it is, the Court’s judgment has become both “FORCE [and] WILL” and will continue to be upheld as the law of the land. Such a usurpation of the rights of the people to decide what they think is the best policy regarding punishment of convicted criminals is a krytocracy, a rule by judges, and neither democratic nor republican in its virtues.



Works Cited


Atkins v. Virginia. 536 U.S. 304 (2002).

Furman v. Georgia. 408 U.S. 238 (1972).

Gregg v. Georgia. 428 U.S. 153 (1976).

Hamilton, Alexander. The Federalist 78. Penguin Classics: New York, 1987.

Penry v. Lynaugh. 492 U.S. 302 (1989).

Roper v. Simmons. 543 U.S. ____ (2005).

Stanford v. Kentucky. 492 U.S. 361 (1989).

Trop v. Dulles. 356 U.S. 86. (1958).

Wallis, et al., “Too Young to Die.” Time 14 March 2005: 40.

 

[danarhea]

Three years later, Justice Kennedy would write for a bare majority that a new “national consensus” had emerged regarding the execution of “minors” and outlawed the practice as offensive to the “evolving standards of decency” “clause” in the Eighth Amendment. He explained in Roper v. Simmons, “30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach” (Kennedy, opinion, Roper) He notes further that only “Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years--four through legislative enactments and one through judicial decision,” but relies on Atkins to conclude that “since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it,” and that since “a majority of States have rejected the imposition of the death penalty on juvenile offenders under 18 … we now hold this is required by the Eighth Amendment” (Ibid).

He defends this position with foreign law and the idea that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,” as well as relying on treaties both signed and not signed by this government, and amicus curie briefs that explain that juveniles are prone to recklessness, peer pressure, and lack of “fixed” personality traits (Ibid). In rejecting an opinion he once joined, Kennedy chastises the Stanford Court for not including the minority of states – twelve – that had decided that “the death penalty is inappropriate for all offenders, including juveniles” in showing why no “national consensus” exists. But of course, Kennedy’s use of the term “inappropriate” begs the question – if something is “inappropriate” is it “unconstitutional”?

Justice Scalia again dissented, arguing “[Today’s decision] announc[es] 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. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to ‘the evolving standards of decency’” (Scalia, dissenting, Roper). Again, Scalia points out that merely 47% of the states which allow capital punishment have restricted its use against minors, stating, “Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus” (Ibid). Never fond of the “evolving standards of decency” argument, he dissented further elucidating that

• If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of ‘the evolving standards of decency’ of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation? (Ibid).

Scalia deplored what Kennedy has done in Roper in creating “the new reality that, to the extent that our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years)” (Ibid). To make matters worse from Scalia’s standpoint, this decision affirmed an earlier Missouri Supreme Court decision that overturned Stanford on the grounds of an “evolving standard of decency,” noting that “until today, we have always held that ‘it is this Court's prerogative alone to overrule one of its precedents’” (Ibid, quoting State Oil Co. v. Khan).

As shown above, the Court’s use of the “evolving standards of decency” in regard to Eighth Amendment jurisprudence in capital punishment cases has given the Court the ability to push its own views upon the nation, using sophistries to support their claims. The Trop v. Dulles argument has itself evolved to the point where the Court has gone into the practice of prescribing what the ever-changing standard is for the American people, rather than allowing the American people to discern that for themselves.
Something being “unwise,” “too expensive,” “inappropriate,” or “wrong” does not make that something “unconstitutional.” Only the something odious to a specific Constitutional provision can be “unconstitutional.” Even accepting the idea that the Eighth Amendment allows for the Court to surmise the “evolving standards of decency that mark the progress of a maturing society,” surely there is a need for objective criteria that do not take a myopic stance and looks only at the fashion of the times. The Eighth Amendment is not a blank check for the Court to decide what “cruel and unusual” means. On the contrary, it is very static in its meaning. Of course society does itself “change” or “evolve,” but it also “devolves.” If punishments that were not considered “cruel and unusual” upon the ratification of the Eighth Amendment are today “cruel and unusual,” under the same provision to the Constitution, does it not follow that things considered “cruel and unusual” at the time of ratification of the Eighth Amendment could be considered within the realm of acceptable punishment today? Undoubtedly it does.

Instead of relying on the Court to show the way out of supposed barbarism to civilization, the respective state legislatures, whom are responsive to the ever changing trends in people’s thinking, are the appropriate bodies to decide what the “evolving standards of decency” are. So long as they never devolve to the point that they authorize the use of punishments that were considered “cruel and unusual” when the Eighth Amendment was ratified, they are not creating anything “cruel and unusual.” When something “evolves” it reaches that point on its own. To say that the Court forcing states to comply with what it’s “own judgment” thinks is best is somehow contained within the meaning of the phrase “evolving standards of decency that mark the progress of a maturing society ” does show indeed what Scalia lamented has happened: “Words have no meaning” to the eyes of this Court.
Unfortunate as it is, the Court’s judgment has become both “FORCE [and] WILL” and will continue to be upheld as the law of the land. Such a usurpation of the rights of the people to decide what they think is the best policy regarding punishment of convicted criminals is a krytocracy, a rule by judges, and neither democratic nor republican in its virtues.



Works Cited


Atkins v. Virginia. 536 U.S. 304 (2002).

Furman v. Georgia. 408 U.S. 238 (1972).

Gregg v. Georgia. 428 U.S. 153 (1976).

Hamilton, Alexander. The Federalist 78. Penguin Classics: New York, 1987.

Penry v. Lynaugh. 492 U.S. 302 (1989).

Roper v. Simmons. 543 U.S. ____ (2005).

Stanford v. Kentucky. 492 U.S. 361 (1989).

Trop v. Dulles. 356 U.S. 86. (1958).

Wallis, et al., “Too Young to Die.” Time 14 March 2005: 40.

Wow - Quite surprised to see you here. Welcome

Have you ever seen the video of Michael Badnarik's Constitution Class? It is quite an eye opener. The section on the 14th amendment applies here, since the term Citizen, with a Capital C, has been changed to citizen, with a lower case c. Just that kind of trick with the Constitution enables the government to force its will on us, and subjugate us, instead of the government serving its citizens, as our forefathers intended.

 

[John Galt]

I don't know about that; Idid however seeBadnarik's class.

What this is all about is basically: "Was the Court right in creating an evolving standard of decency to apply to the 8th Amendment?" I believe they were incorrect, as explained above. If someone wants to explain why I am incorrect, I am all ears.

 

[danarhea]

I don't know about that; Idid however seeBadnarik's class.

What this is all about is basically: "Was the Court right in creating an evolving standard of decency to apply to the 8th Amendment?" I believe they were incorrect, as explained above. If someone wants to explain why I am incorrect, I am all ears.

I would say that you are essentially correct, although the article was a bit heavy going for me, and as a result, I am probably not qualified to comment on some of it.

However, I do see an essence here of judicial activism, which goes to the core of what you are saying. If I am wrong, please correct me. IMHO, the court has no business in creating anything, whether it be a standard of decency, or the right for the federal government to legislate abortion. The business of the Court is only to interpret the Constitution itself, and only that. Not to read anything into it, nor to view it as a document that supposedly changes over time, but to strictly interpret it.