The U.S. Supreme Court today abolished the juvenile death penalty in a 5-4 decision. In his majority opinion, Kennedy affirmed the importance of "evolving standards" and "international opinion." Regarding evolving standards (discussed at length in the opinion) Kennedy quoted from a 1958 case (Trop v. Dulles, 356 U. S. 86, 100-101) and repeated that the Eighth Amendment, "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
Regarding international opinion, Kennedy also wrote, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions... It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom."
In a short concurring opinion, Stevens and Ginsburg were even more emphatic about changing standards. They wrote: "Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court’s interpretation of the Eighth Amendment... If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today... The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day--Alexander Hamilton, for example--were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court."
Naturally, in his dissenting opinion, Scalia disagreed with this view of what the framers would have intended. He complained that, "'updating' the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos." But as in Lawrence v. Texas (striking down anti-sodomy laws), Justice Kennedy (a Reagan appointee) wrote a decision heavily laden with evidence of evolving standards of morality within the U.S. and around the world. In Kennedy's view, basic rights can change with time, and as the underlying rights evolve, the Amendments that protect them must follow. Could this be a new direction for the court? Will this, as Stevens and Ginsburg hope, be the most important aspect of this case?
Tuesday, March 01, 2005
Updating the Bill of Rights
Posted by Dr. Strangelove at 10:42 AM
Subscribe to:
Post Comments (Atom)
3 comments:
Scalia's view of the role of case law is bizar. He seems to think that reliance on case law means immutable laws. Strange! Wouldn't that imply that law would be fixed at that level of interpretation most common at the date in history we arbitrarily set to be the earliest pecedant we can cite?
Also, while Kennedy was appointed by Regan the Democrats had a majority in the Senate at the time (I think).
I believe in the opposite of Regan's Law: "Thou Shalt Never Speak Good of a Republican."
My question for Scalia is this:
So, what you're saying is that if I want "cruel and unusual" to mean what it does today, I'd have to pass that statute today, even without a change in the words. So the law could change without the words changing at all? How do you get a legislature to pass a bill amending a statute to say exactly nothing different?
My question for Scalia is this:
So, what you're saying is that if I want "cruel and unusual" to mean what it does today, I'd have to pass that statute today, even without a change in the words. So the law could change without the words changing at all? How do you get a legislature to pass a bill amending a statute to say exactly nothing different?
Post a Comment