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WenweiLaiFirstPaper 4 - 06 Mar 2010 - Main.WenweiLai
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | I. The current cruel and unusual punishment jurisprudence of the Supreme Court: Roper | |
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< | The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Is executing a juvenile under 18 cruel and unusual? The Supreme Court answered this question in the affirmative in Roper (2005), basing its decisions on some transcendental nonsense. Interestingly, the decision is criticized most often not for its legal reasoning, but for its use of foreign sources to support its conclusion. | >
> | The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Is executing a juvenile under 18 cruel and unusual? The Supreme Court answered this question in the affirmative in Roper (2005), basing its decision on some transcendental nonsense. Interestingly, the decision is criticized most often not for its legal reasoning, but for its use of foreign sources to support its conclusion. | | | A. Transcendental nonsense adopted by the Court | |
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< | “The evolving standards of decency that mark the progress of a maturing society” has been the Court’s test in determining whether a punishment is so disproportionate as to be “cruel and unusual” since a 1958 case. Such a definition falls into what Cohen called a vicious cycle. Court decisions are always part of the evolvement of social standards; sometimes they lead the evolvement. The fact that the Court ruled executing a juvenile unconstitutional made the execution a violation of “the evolving standards.” (Although I don’t have any empirical evidence on this specific question, my reasoning here is based on other countries’ experience in the abolition of death penalty. The public did not think there was anything wrong with death penalty when it was abolished 50 years ago. Fifty years later, the people are uniformly against death penalty.) So it is putting the cart before the horse for the Court to regard “the evolving standards” as a reason for declaring the execution unconstitutional. | >
> | “The evolving standards of decency that mark the progress of a maturing society” has been the Court’s test in determining whether a punishment is so disproportionate as to be “cruel and unusual” since a 1958 case. Such a definition falls into what Cohen called a vicious cycle. Court decisions are always part of the evolvement of social standards; sometimes they lead the evolvement. The fact that the Court ruled executing a juvenile unconstitutional made the execution a violation of “the evolving standards.” (Although I don’t have any empirical evidence on this specific question, my reasoning here is based on other countries’ experience in the abolition of death penalty. Opposition to the death penalty appears to grow the longer the country has been without the punishment.) So it is putting the cart before the horse for the Court to regard “the evolving standards” as a reason for declaring the execution unconstitutional. | | | In Stanford (1989), the case overruled by Roper, another transcendental nonsense was put forward to explain the previous one: “national consensus,” which meant the execution could be abolished only when there was a national consensus that it should no longer exist. If there had been any national consensus, how could this have been hotly debated by the opponents and proponents? This requirement is a convenient tool for the conservatives to uphold the constitutionality of a punishment. However, when a decision tries to keep the national consensus requirement and abolish an existing punishment at the same time, problems will follow. | | | B. So, are the dissenters out of their minds? | |
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< | All my reasoning above is based on the assumption that the functional approach, a product of the so-called legal realism, is the correct one. However, this assumption does not hold true to everyone. As Justice Scalia said in his Roper dissent, “this is no way to run a legal system.” According to the legal philosophy which he purports to follow, what the law is today equals what the law was 250 years ago. Therefore, the functional approach is no justification for the use of foreign sources. | >
> | All my reasoning above is based on the assumption that the functional approach, a product of the so-called legal realism, is the correct one. However, this assumption does not hold true to everyone. As Justice Scalia said in his Roper dissent, “this is no way to run a legal system.” According to the legal philosophy which he purports to follow, such a law does not change and these particular words ("cruel and unusual") have a fixed meaning. Therefore, the functional approach is no justification for the use of foreign sources. | | | C. Transcendental nonsense from a strategic perspective |
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