Just Out of Curiosity

So, now that we don't execute kids (or people who were kids when they committed their crimes), will we ratify the UN Convention on the Rights of the Child? I think that was our stated reason for not doing so until now.

Comments

[Gary Gunnels]

Probably not. Republicans will try to change the bench so as to overturn this decision.

[SR]

And there are serious proposals in Congress to prohibit the Supreme Court from looking to foreign precedent in making its decisions. (Although how you'd enforce that is beyond me.)

[Matthew Cromer]

Since when is a 17 year old "a kid"?

Our continued infantilization of adolescence continues apace. . .

[madpad]

I agree with Gary on this one (a miraculous event in itself).

I've read that as a rule the court doesn't like to reverse earlier decision except in extreme cases. The idealog-ish Scalia, arguably, would probably not be concerned with such trifles.

Slate has an interesting piece by the very anti-Bush(and anti-Scalia), somewhat liberal, usually hystrionic yet occassionally insightful William Saletan at:

http://slate.msn.com/id/2114219/

Since many observers suspect that Bush will push for Scalia as Chief Justice, the point of Saletan article is particularly interesting.

QUICK SYNOPSIS:

Scalia dessented from yesterday's judgment writing that the court's opinion represent a flip-flop from a previous abortion decision regarding parental notification. Scalia is particularly angry by the apparent opposing rationale between each decision.

Saletan's point? Since Scalia dissented from both judgements - also citing opposing rationale - he himself was a flip flopper.

As hardly a fan of Scalia myself, I found it delightful.

[crimethink]

madpad,

That would be true only if Scalia's argument in dissent was simply the opposite of the majority's in both cases. To illustrate:

Person A says that Social Security needs to be scrapped because people are able to plan for their own retirement, but also says that drugs should be illegal because people can't be trusted to see the possible future consequences of drug use.

Person B says Social Security needs to remain as is, and drugs should be legalized, and furthermore points out a contradiction between A's arguments on the two issues. Not knowing B's arguments, does that automatically mean that B is a hypocrite?

[Brian]

If we can't execute 14 year olds then the terrorists have won.

Packing the court is inefficient and unpredictable. They'll just try to remove death penalty cases from the jurisdiction of the Supreme Court.

[fyodor]

Matthew Conner,

Since when did we ever consider a 17-year old anything but a kid? Most kids, or whatever you wanna call 'em, can't drink real liquor in this country till they're 21. The voting age was lowered from 21 to 18 only a little over 30 years ago. On what basis, other than your imagination, do you claim we're in a process of infantalizing adolescence or that 17 year-olds were ever considered adults??

[Brett]

So help me out here (I'm not being facetious)...

Libertarians are ok with striking down state laws when the federal decision is more in line with libertarian ideals?

Regardless of how you feel about the death penalty, how is this not a blow to federalism? Is constitutional law more in line with Kennedy's opinion or Scalia's dissent?

[Julian Sanchez]

Brett:
I don't think there's any one libertarian jurisprudential theory, so I doubt you'll get a common answer. I tend to be roughly Dworkininan in my thinking so I'm OK with deciding that the meaning of "cruel" can change in light of, for instance, new information about the physiology of the brains of minors, though I'm more wary about "evolving consenus" rhetoric. Others with different theories of law will presumably disagree.

[scott]

Whether you execute minors or not really isn't the point. I'm rather indifferent myslef, but reading some of the cases in question makes me think that as long as anyone is getting executed in this country, some of these "kids" certainly should be. The citation of foriegn courts speaks for itself, but I find the whole flippant matter in which the Court invokes the "national consensus" agruement to be troubling. No matter what one's perspective on the issue, I think it is more than clear that there is no "national consensus" on this issue. "Slavery is wrong" is more along the lines of what I think of when I hear "national consensus". Not the execution of 16-18 year old killers. Like abortion and euthanasia, it is a hot button moral issue that is the subject of passionate debate. When the Court steps in to "solve" political issues like this, they take political debate away from where it belongs (the legislature) and instead continue the damaging trend of politicalization of the Courts. Already we have a lithmus test with respect to abortion. Now we will have one regarding the death penalty. This isn't conducive to getting the best, brightest, and most impartial Justices that we can nominated to the Courts.

[s.m. koppelman]

Mr. Sanchez, this administration does not do business with Nicolae Carpathia.

[bigbigslacker]

Julian, and if "new information about the physiology of the brains of minors" indicates many people are tards until they hit 23 or 25, then we make the death penalty a no-no for those under 23 or 25? Does this also mean we should deny 2nd amendment rights to those who are over 18 but still might have defective brains? No right to consent to sex or sign contracts or take out loans either? I understand my "logic" swings the other way as well (ie do we execute/imprison 8 year olds who commit the same crime as young adults)...just spit-ballin.

[andy]

"On what basis, other than your imagination, do you claim we're in a process of infantalizing adolescence or that 17 year-olds were ever considered adults??"

Because they know the difference between right and wrong. 17 year olds may not exercise the best judgement at times, as they aren't always able to foresee the consequences of their actions, but it's disingenous to say that cold-blooded murder can be as absentmindedly committed as, say, forgetting to pick up milk on the way home from school.

[Mo]

King SoloMOn will issue his decree. The death penalty age limit will be set to the highest of these 3 ages within a giving state. The right to vote (in state, no need to amend the constitution), age of consent and drinking age. When a state deems that a person is mature enough to drink, have sex and participate in democracy, only then are they mature enough to die for murder.

[Eric the .5b]

Brett:

Libertarianism is one thing, federalism and general interest in the Constitution is another, orthogonal thing.

I'm personally interested in the Consitution because I happen to live in the US and it's the supreme law of the land. It's also always struck me as a functional structure that sensible people should be able to agree on. (Hey, stop laughing.) The constitution isn't an especially libertarian setup for a government, but actually adhering to it would be better than the current setup.

[Brett]

Ok, Eric. I thought that support for federalism was pretty much a given in libertarian circles. By that I mean curtailing new federal powers, and perhaps even revoking as many as possible beyond the 15 or so federal powers enumerated by the constitution. In my (albeit limited) reading, libertarians tend to favor originalist judges.

[Les]

I don't know of anyone who's equated adolescent murder with more common, trivial, adolescent behavior.

It still confuses me that libertarians, who (understandably) don't trust the government to successfully educate children, trust it implicitly to kill only guilty people.

[thoreau]

It still confuses me that libertarians, who (understandably) don't trust the government to successfully educate children, trust it implicitly to kill only guilty people.

I couldn't have said it better myself. And there is evidence to support this lack of trust. Well, I think there's evidence, but my court-appointed lawyer couldn't find any of it because he's drunk and asleep at the moment.

[TWC]

Les, I don't know many libertarians who support cap punishment. Granted, there are a few who see hanging as a just reward for horse theft but they are definitely in the minority.

Matthew, excellent point. I'll say it again, Excellent Point.

Puberty is a nice biological dividing line between adulthood and childhood and was recognized as such until the 20th Century in all cultures.

Fyoder, for the entire history of humanity teens were considered adults until the infantalization of our adolescents began roughly in the 1920's.

Granted, some of the change has to do with wealth and life expectancy but the change is very real and very modern.

[scott]

I'm a libertarian in favor of the death penalty. Plenty of us out here. Death Penalty is more of a moral issue than anything else. After all, the same logic you use (about trusting the goverment to apply the death penalty) can be applied to the the sentence of life imprionsment.

[Les]

After all, the same logic you use (about trusting the goverment to apply the death penalty) can be applied to the the sentence of life imprionsment.

Not really. A sentence of life can be corrected by releasing the wrongly convicted individual. The death penalty is not correctable once it's been enforced.

[adifferentphil]

Brett et al,
I find your questions interesting. It would seem that being a strong federalist, in favor of state government decisions, is more of a conservative position, while libertarianism is more focused (in theory) on natural rights and liberties, which state and local governments do not necessarily value. So, I find obsession with states rights and the constitution to be less libertarian and more purely conservative.

[Gary Gunnels]

Brett,

In this instance we're talking about the Eighth Amendment here. You do realize that there is a Federal Constitution - which though limited - does prohibit the states from doing certain things, right?

As to originalism, let's note that the Eighth Amendment - when it was debated in the Congress - was considered subject to changing morality even then (or so said a number of Congressmen). But, even if you don't accept that, honestly, would you want us to apply late 18th century standards to the modern world? Because that is where "originalism" takes you in this context.

The Eighth Amendment for your edification:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Note that the terms of the amendment are hardly objective. Originalist stance would look to the culture and history that informed the statement, and that would invariably lead to the allowance of the DP or long prison sentences or even torture for a number of crimes - like blasphemy or fornication - that we would find repugnant today.

Citation to Foreign Courts:

The SCOTUS, the lower Federal Courts, and the State Courts have each been doing this since their founding.

[John David Galt]

I have felt for a long time that the age of majority ought to be lowered to something more consistent with reality, such as 16. Indeed, nothing in the Constitution gives the federal government the power to prevent a state from doing this.

As for the UN treaty, my understanding is that we haven't signed because the military wants to go on accepting 17-year-old recruits, something the treaty specifically bans. The death penalty has nothing to do with it (& indeed most of the rest of the civilized world views us as barbaric for having it, and the UN takes that position as well -- which does not mean I agree with them).

[Douglas Fletcher]

The logic of the decision is idiotic.

[Eric the .5b]

After all, the same logic you use (about trusting the goverment to apply the death penalty) can be applied to the the sentence of life imprionsment.

Not really. A sentence of life can be corrected by releasing the wrongly convicted individual. The death penalty is not correctable once it's been enforced.

Well, let's state it more broadly. Do we then "implicitly trust the government" to restrain and confine only guilty people in prison for years and decades on end?

[thoreau]

Well, let's state it more broadly. Do we then "implicitly trust the government" to restrain and confine only guilty people in prison for years and decades on end?

No. That's why we have appeals processes, in case somebody finds evidence that a mistake was made.

[Eric the .5b]

Correct. Nor do we "implicitly trust the government" to execute people.