Even the Living Constitutionalists think your opinion in Kennedy v. Louisiana is unadulterated crap.

“This? Oh, I don’t use it much. I am more of a fly-by-the-seat-of-my-pants kinda guy.”

As someone who opposes the death penalty in all instances, and who also believes that death is too good for any rapist (put his sorry a*s on a Cool-Hand-Luke-style chain gang for life, I say), I obviously favor the outcome in this case. That having been said, Justice Kennedy’s “reasoning,” as usual, is beyond pathetic. The Court’s opinion today in Kennedy v. Louisiana, as in Roper v. Simmons, is a constitutional abomination. There is simply no basis in the Constitution’s text, history, or structure for the Court’s decision (which rests instead on the Court’s own “independent judgment” and “evolving standards of decency”).. It is nothing less than rule by judicial fiat. 

At some point, the American people are going to have to decide whether they wish to be ruled by nine (and in many cases five) unelected philosopher kings, or whether they would rather have the most contentious issues of public policy we face as a people hashed out in the legislative arena (as was envisioned by our founders/framers).

I, for one, favor the latter.

Oh, and given the nature of today’s decision, I thought I would excerpt a bit of my standard originalist stump speech that I give to Federalist Society chapters across this fine land of ours below the fold. Enjoy!

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Well, it appears that I am to the “left” of Obama on at least one issue.

I must get back to billable work so I won’t comment beyond recommending this interesting article on why we should abolish the death penalty. (Scroll down to the “On the Square” section).  I don’t agree with the article but it is well written and thought provoking.

Today’s must-read post, courtesy of Dan McLaughlin.

And by a 7-2 vote.

Wow.

How in the world did Chief Justice John Roberts manage to line up a 7-2 vote in this case? He is really the ultimate jurisprudential rock star.*

*And yes, I still strongly oppose the death penalty in all instances. My personal disdain for the death penalty has nothing to do with my understanding that the Constitution explicitly permits the states to impose such a penalty.

Update: Well, maybe the Chief wasn’t all that persuasive in this case. Only two other justices joined his plurality opinion. 

You can read the opinion here. Oh, and be sure to read Justice Scalia’s concurrence, which is nothing less than a jurisprudential masterpiece. Bravo, Nino!

The Vatican has apparently spoken out against executing Saddam.  My question is this:  Isn’t it possible that executing Saddam is consistent with Church teaching?  The Catechism provides:

Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and are more in conformity with the dignity of the human person.

Today, in fact, as a consequence of the possibilities that the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent” (Evangelium Vitae 56).
Saddam poses a threat, that in my mind cannot be removed by mere incarceration, because of the realistic threat of a civil war which would put Saddam back in charge, and we know what he did last time his life was threatened.  The “state” of Iraq in no way compares to the United States, or other well-established states, where imprisonment is a realistic guarantee of self-defense.  Hanging may be necessary for the common good, in this rare circumstance.

From his recent opinion in Kansas v. Marsh….

…. There exists in some parts of the world sanctimonious criticism of America’s death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently–and indeed, many of them would still have it if the democratic will prevailed.³) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

It should be noted at the outset that the dissent does not discuss a single case–not one–in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt. …..

This and the other opinions are interesting DP reading.

I think Lithwick over at Slate.com covered the bases nicely in her piece “Barely Lethal” as she examines the lethal injection controversy.  This may belong in the category of beat the dead horse, but hey….it’s a good article.  In part…

The reason modern executions have “evolved” from hangings, to gas chambers and firing squads (and other creepy vestiges of black-and-white movies), to modern lethal injection, is not for the ease and comfort of those being executed, but for the ease and comfort of the American public. Everything we as a society have done to sterilize and medicalize capital punishment—from secret midnight killings to swapping the hangman for a technician in a lab coat—has served to mitigate the outrageousness of the state taking a human life. If today’s death-penalty opponents win the battle and achieve their perfectly painless execution (a sweet slumber resulting from a single overdose of barbiturates), they will have lost the larger war against government-sanctioned murder.

At the same time, supporters of capital punishment are misguided in their opposition to finding a less cruel method of execution. Supporters of the death penalty are frequently heard insisting that death by lethal injection is actually too good for the cruel and ruthless killers who merit it. As Ronald Bailey recently argued online in Reason, “As harsh as it sounds, if lethal injection is good enough to end the suffering of a beloved pet, it’s probably too good for a pre-meditated murderer.”

My buddy Publius is still in a tizzy over the title of Ramesh Ponnuru’s recently-published book, “The Party of Death.” In fact, he is so upset by it that he’s sided with Andrew Sullivan in his catty little blog snaps at Ponnuru.

Now, I am not going to address Publius’s criticism of Ponnuru’s assertion that he did not intend the ”Party of Death” label to apply solely to dems. I know Ramesh, and if he says that wasn’t his intent, that’s good enough for me.

Instead, what I am really interested in addressing is Publius’s support of this statement by one of Sully’s readers:

Ponnuru has chosen his issues (abortion, euthanasia, stem cell research) as his ‘death’ issues . . . . One could easily (and perhaps should) write a book focusing on US infant mortality rates, universal health care, Just War Doctrine, inhumane treatment of prisoners, capital punishment, and sex education.

According to Publius:

I think Sullivan (or Sullivan’s reader) really hits the nail on the head here.

I know this point has been made again and again, but it’s a strong one. If you were seriously attempting to sit down and weigh objectively what party is more “Life-friendly,” the modern GOP would not exactly take the taco. Of course, it’s hard to reach any sort of objective conclusion on these things given that they turn on subjective value judgments and religious beliefs. But that said, I would argue that any analysis that gives the modern GOP higher “Life” ratings necessarily relies on questionable assumptions.

For the GOP to “win,” issues like abortion, stem cell research and euthanasia must trump war, capital punishment, torture, and a greater tolerance of poverty and of the fifty million people (including children) without health care insurance. The problem, though, with this sort of “Ponnuru calculus” is that it assumes that hotly disputed questions about what constitutes “life” are undisputed truths. The “liberal calculus,” by contrast, requires no such leap of faith.

To see what I mean, let’s look at stem cell research. I believe as strongly as I believe anything that a microscopic embryo is not “life” and certainly not the moral or legal equivalent of a human. Others believe precisely the opposite – and just as strongly as I do. Whereas I focus on the lack of a brain and nervous system, others focus on the divine soul. Neither side can prove the other one wrong, but at the very least, we should be able to agree that there is a strong, good-faith argument about why people don’t consider embryos to be human life. In the face of this uncertainty, to classify support for stem cell research (life-saving stem cell research) as part of the “party of death” is beyond obnoxious. Same deal for abortion and same deal for Terry Schiavo.

Opposition to war and to capital punishment, however, doesn’t require you to make such a jump. Everyone agrees that these acts kill and destroy human life. There is no antecedent question about whether there is even life in the first place.

And that’s really the problem with the Ponnuru calculus, which concludes as it does that the Democrats are the “party of death.” The only possible way that he is right is by assuming that embryos, fetuses, and brain-dead Floridians are “alive” in the same sense that people who die in wars are alive. And the only way that assumption works is by assuming the existence of a divine soul that, by its very nature, cannot be observed. Maybe that’s right, maybe it’s wrong. But it can’t possibly be proven because such things can’t be empirically observed. And when you can’t prove these things, you should probably refrain from accusing half the nation of supporting murder as a foundational political principle.

What really seems to be going on is precisely what Sullivan’s reader said – Ponnuru is working backwards from a pre-existing conclusion that Democrats are bad. He then cherry-picks those policies that help his argument, while ignoring the four-hundred pound gorillas in the room that should, at the very least, give him pause or, at most, lead him to switch parties.

The problem with Publius’s argument, of course, is that he is comparing apples and oranges.

Abortion and embryonic stem cell reserach unquestionably destroy innocent human life; and euthanasia preys on those in a weakened condition, often making them feel as though they have no choice but to end their lives (so as not to be a bother or an ongoing expense to their families).

Now, let’s consider the “life issues” that Publius believes to be the moral equivalent of the foregoing practices: “war, capital punishment, torture, and a greater tolerance of poverty and of the fifty million people (including children) without health care insurance.” Of the four issues identified by Publius, only two involve (broadly speaking) the direct taking of a life. Don’t get me wrong, torture is always morally wrong, and there is no question that society should do everything in its power to end global poverty and provide everyone with a modicum of health care benefits; but neither of these issues are on par with abortion, embryonic stem cell research, and euthanasia, in the sense that they don’t involve the direct taking of a life. Global poverty and universal health care are, broadly speaking, quality of life issues. It is true, of course, that poverty and the lack of universal health care can lead to countless deaths. But these are issues that, unfortunately, will always be with us; and the goal should and must be to reduce the deaths resulting from poverty and the lack of universal health care over time.  This is not the case with abortion, eunthanasia, and embryonic stem cell research, which can all be virtually eliminated through the rule of law.

In sum, and for my fellow ADHDers:

Abortion, embryonic stem cell research, and euthanasia always involve the intentional and direct taking of innocent life, and these practices can all but be eliminated vis-a-vis the rule of law.

Global poverty and the need for universal health care do not always result in death, and the likelihood of society ever being able to completely solve either of these tragic problems is remote at best.

And before I move on, let me say this: The fact that one does not agree that government is the best or only appropriate vehicle for addressing poverty and universal health care is not the equivalent of hating poor people.  Liberals may suspect that many conservatives don’t give a damn about poor folks when they tout market-based solutions to these problems, but, to use Publius’s words, “such things can’t be empirically observed.”

Now, let’s move on to war and the death penalty.

War is tragic, and kills people (many of whom are innocent). No doubt about it. But what does Publius mean by including war in his liberal ”life issues” list? Is he suggesting that war is never necessary or appropriate? I suspect that’s not the case. And if Publius is willing to concede that war is sometimes required, then what we’re left to argue over is when waging war is necessary. This too is a horse of a different color.

As for the death penalty, this practice comes the closest to abortion, embryonic stem cell research, and euthanasia, but it still falls short (way short) of being a comparable issue.  The death penalty does not involve the intentional taking of an innocent life. And while it is certainly possible (indeed probable) that some innocent people have been put to death, this is not typically the case. Moreover, I am not aware of any instance where the United States government has applied the death penalty knowing that the person in question was innocent. Perhaps there is such a case, and if there is then that particular application of the death penalty would be the moral equivalent of abortion, embryonic stem cell research, or euthanasia; but once again, this is hardly typical in most death penalty cases.

(aside: For those of you who are not already aware of this, I oppose the death penalty, even though I do not believe the practice to be the moral equivalent of abortion, etc.)

O.k., let’s now turn to Publius’s next point:

The problem, though, with this sort of “Ponnuru calculus” is that it assumes that hotly disputed questions about what constitutes “life” are undisputed truths. The “liberal calculus,” by contrast, requires no such leap of faith.

Here too, I think Publius missteps badly. What leap of faith is required to acknowledge that elderly people are human beings who do not deserve to be offed or forced into a situation where they feel obligated to choose death? What leap of faith is required to acknowledge that a viable baby partially removed from his/her mother’s womb is a human being with the right to live?  What leap of faith is required to acknowledge the scientific fact that life does indeed begin at conception? 

What Publius is really saying is that in some cases the law should not recognize life as being worthy of legal protection, i.e., that some lives are more meaningful than others. Indeed, this is what Publius means when he says, “I believe as strongly as I believe anything that a microscopic embryo is not ‘life,’ and certainly not the moral or legal equivalent of a human.”

But here’s the question, Publius: Why do you believe that? And more importantly, what if you’re wrong? Then you have supported a practice that has resulted in countless innocent deaths. And you have done so notwithstanding the fact that all of the advancements made thus far in stem cell research have been accomplished with adult stem cells. Knowing this, why wouldn’t you err on the side of concluding that every life is meaningful and worthy of respect? So, to answer your question, Publius: no, there is not a “good-faith argument about why people don’t consider embryos to be human life.” And yes, those who support embryonic stem cell research have aligned themselves with the Culture of Death.

Oh, and Publius, how is it that–using your own standards and definition of life–you came to lump “abortion and . . . Terry Schiavo” together with embryonic stem cell research? I know why I do; because I believe that life should be respected and honored from conception until natural death. But you’re a line-drawing kind of guy; so why are you all of the sudden failing to appreciate the distinction between a “microscopic embryo,” a viable baby, and a fully-outside-the-womb human being?

Finally, Publius, you are right about one thing: one cannot prove “the existence of a divine soul” empirically. But, as I’ve already noted, one can acknowledge that life begins at conception, and that fallible human beings ought to circumspect about so cavalierly concluding that a life isn’t meaningful simply because he/she cannot yet pull a lever for Hillary Clinton or is no longer paying taxes to mother government.  

What really seems to being going on is that your crowd has embraced a selfish, hedonistic, moral relativism that doesn’t give a damn about the weakest and most vulnerable members of society, and for that liberals and the Democratic Party should be ashamed of themselves.

Florida death row inmate Clarence Hill, a convicted cop killer, received a stay of execution in January while on the gurney awaiting his lethal injection.  Challenging the method of execution, his lawyers contend that the inmate could suffer pain at the stage in the process when the lethal dose is injected.  Although this is a similar challenge that led to the retirement of Old Sparky, the Supremes have not had a case (until now) where they considered the prospect of the painless execution.  Curious….how humane does the method have to be? What is humane? 

Only in our current American culture has such Constitutional silliness become possible. At times, the oral argument sounded silly.   Not to be macabre, but don’t you think lethal injection, hanging, firing squad, even Old Sparky are reasonable methods for dispatching condemned prisoners? Burning at the stake, drawing and quartering…I’d say that’s unduly painful and in the cruel and unusual category.  Should the condemned have the option of choosing his poison?  I think not.  The choice is the state’s and it’s simple….(to shamelessly borrow from Eddie Izzard)…cake or death?  Oh, I’m soooo sorry. We’re all out of cake.

I just stumbled across an interesting post at SCOTUSblog that I thought I’d share (yes, it’s exam time and I can always find a distraction rather than study).

Lyle’s post on Alabama v. Adams, in which the state of Alabama urges the Court to reconsider its 2005 decision in Roper v. Simmons, has touched off a lively debate in the comments. One interesting aspect of the cert. petition itself is that the state is represented at the Court by Alabama Attorney General Troy King and Chief Deputy Attorney General Keith Miller (who serves as counsel of record). Alabama Solicitor General Kevin Newsom, who has argued at the Court and appears frequently on briefs filed there, does not appear on the petition.

Any readers interested in passing along to me, merely to satisfy my curiosity, as to why Newsom isn’t on brief, or am I reading too much into this?

Before our D.A.’s office proceeds with a death penalty case, we assess the defendant’s mental capacity as we know the defense will sometimes try to play that card. We subpoena school records, interview former teachers, etc. to gather sufficient evidence to refute such a claim. But, for these San Antonio prosecutors, the facts don’t get much better for hosing down the retardation defense…. (more…)

While I oppose the death penalty, there is nothing in the teachings of the Catholic Church that requires me to do so.

So, Catholics and Non-Catholics alike, please stop attempting to equate the death penalty with abortion, euthanasia, birth control, embryonic stem cell research, and the like; because that dog ain’t gonna hunt.

You don’t need a doctor at an execution…..just a couple of grave diggers.

Very interesting.

And while the end result is unquestionably newsworthy, the law geek in me is curious to see the majority’s basis for allowing the stay to remain in effect (and thus the cause of the 6-3 divide).

You can read the Court’s order denying the application to vacate the stay imposed by the Eight Circuit–which, btw, has been assigned to Alito–here. Š