Law in Contemporary Society

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WenweiLaiFirstPaper 5 - 23 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.

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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. 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.
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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 evolution of social standards; sometimes they lead the evolution. 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.

Revision 5r5 - 23 Mar 2010 - 18:24:46 - WenweiLai
Revision 4r4 - 06 Mar 2010 - 05:14:12 - WenweiLai
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