Supreme Court

How Should Justices Judge?

Striking a balance between liberal and conservative legal theories

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In the confirmation hearings for Elena Kagan, Americans will hear a debate over how to interpret the Constitution. On one hand are conservatives who preach strict adherence to the framers' intent. On the other are liberals who see a flexible entity that must adapt to a changing world.

But you don't have to wait to assess the competing theories. Rarely have they been more starkly opposed than in the Supreme Court verdict that life without parole may not be imposed on juveniles who have not killed. And rarely has each side done a better job of exposing its own flaws.

The case involved Terrance Graham, a Florida juvenile jailed for an attempted armed robbery. Upon his release, the 17-year-old took part in an armed home invasion. Exceeding the recommendation of prosecutors, a judge gave him life without parole.

But that sentence, concluded the Supreme Court, violated the Eighth Amendment ban on "cruel and unusual punishments." Five justices said putting a minor away for life is always excessive, and another (Chief Justice John Roberts) agreed it was in this instance.

The verdict exasperated Justices Clarence Thomas and Antonin Scalia for the simple reason that the life sentence "would not have offended the standards that prevailed at the founding." Besides, Thomas wrote, the Eighth Amendment was meant to bar forms of punishment that involve torture, not penalties that are merely disproportionate to the crime.

But as Justice John Paul Stevens pointed out, Thomas and Scalia "would apparently not rule out a death sentence for a $50 theft by a 7-year-old," which according to them was permissible in 1789.

Executing a second-grader for stealing a video game, while insisting the penalty is not cruel and unusual? An interpretive approach that leads to such ludicrous conclusions has no real use. This single dissent cruelly exposes the limits of the "original intent" school.

Justice Anthony Kennedy's majority opinion, however, does nearly as much damage to his subjective style of interpretation. It's larded with value judgments that seem only vaguely connected to constitutional principles and precedents.

He complains that with a life-without-parole sentence, "the state makes an irrevocable judgment about that person's value and place in society." He laments, "A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity."

So? Where does the Constitution guarantee violent felons the opportunity to "demonstrate growth and maturity"? Or the right to regular reassessments of their "value and place in society"?

A few years ago, the court wisely prohibited the death penalty for adolescents. "The most severe punishment," said Kennedy then, is appropriate only for criminals mature enough to be guilty of "extreme culpability." But now, without a persuasive explanation, the next most severe punishment is also off the table.

Most likely it should be, and Roberts' concurring opinion did a far better job of explaining why. He made a strong case that the combination of Graham's age, the uncommon severity of the punishment, and Florida's relative leniency toward adult murderers made the sentence indefensible.

This judicious argument by Roberts, a conservative, offers a way between Thomas' rigid obedience to ancient assumptions and Kennedy's indulgence of personal impulses. A similar one, from a liberal perspective, can be found in David Strauss' succinct and elegant new book The Living Constitution.

The author, a law professor at the University of Chicago, advocates a "common-law" mode of judging. It rests on respect for the essential principles of the framers and for past decisions by courts applying those principles to new circumstances.

This is "the constitution as it actually operates, in practice," Strauss writes. "On a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy."

Judges can't escape value judgments, but they have to make them humbly and carefully, following text and traditions. The framework not only accords with good sense but, writes Strauss, "restrains judges more effectively than originalism."

Making sense of the Constitution is not a matter of simple equations, as Thomas would suggest, nor of following one's own desires, as Kennedy seems to believe. Judges have to be guided by the past, with a full understanding of the present.

Does that sound like an imperfect formula? It is, but not as imperfect as some others.

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  1. Good morning reason.

    1. That is the best image I have ever seen.

  2. Hm. Actually I would have preferred it if Thomas had used something more akin to reasoning he had in Texas v. Lawrence. That the 8th amendment was clearly intended to allow for the evolving standards of society to determine cruel and unusual; and that the (state) legislature was the best place to gauge those standards.

  3. An interpretive approach that leads to such ludicrous conclusions has no real use.

    So an “apparently…,” imputed to Thomas by Stevens, who’s full of shit, is the interpretive precedent for “Executing a second-grader for stealing a video game OMFG”?and executing him himself, personally, apparently.

    That’s some fine interpretin’.

    1. +1

      Chapman then moves to Strauss, whose new book argues from a position that “the text of the Constitution will play, at most, a ceremonial role” in Constitutional interpretation — which seems a strange position for a libertarian like Chapman to gush over as “elegant.”

      Stanley Fish, who one would expect to quite enjoy Strauss’s reader-empowered view of interpretation, didn’t have much use for it, either.

      Thomas’ legal approach is spot on. If community standards have evolved since the text was intended, the remedy is not to pretend that the text didn’t intent what it intended.

  4. So that’s the continuum we are stuck with – liberal/conservative, left/right? And any approach, say, a libertarian one, which is not even on that line is not even considered. I’m not referencing the article proper, but rather the subtitle of the piece. Apparently you can be liberal or conservative or something in between, but nothing else.

  5. I am a “strict constructionist” who thinks that the Constitution should be interpreted using the language as it was used at the time of the writing. When the intent of the authors begins to diverge from more modern ideas of justice and governance, the Constitution has its own remedy: amendment. This is a little cumbersome, since the amendments to the document were made over a period of two centuries. So I’d want each separately written part to be interpreted in the language of its own time. The goal should be to have a Law of the Land that’s unambiguous.

    If the entire document would be interpreted in the current version of English, then as the language changed, so might the law. This makes no sense to me.

    1. In this case, amendment isn’t even the issue, but one of statute. If the crime called for the possibility of life without parole, then the judge wasn’t out of line calling for such a sentence. Appeals to modern sensibilities ring hollow to me, insofar as one would expect those sensibilities to be reflected in the relevant statutes, not simply in the rarified air of appeals courts.

      1. agreed to both of those. Moreover, there are systems in place to override judgees. For example the governor can reduce or pardon a sentence.

  6. A bit tangential to the main topic of the article, but…

    Only people who haven’t thought it through sufficiently would ever conclude that life in prison without possibility of parole is a lesser sentence than death. I’d much prefer death to that.

    I’m already sentenced to death, as are we all. It’s part of being human.

    But I can think of few things crueler than being incarcerated for the rest of my life with vicious felons and sadistic guards with no hope of release… save death.

    1. Death is always an option, if you’re determined.

  7. Happy Everybody Draw Mohammed Day, here is my drawing http://allyourspeecharebelongtous.tk

    in other news Tom Corbett is trying to subpoena twitter to find out the identity of an anonymous twitterer who criticized Corbett. Corbett is abusing his powers as attorney general to stop criticism of him to further his campaign for governor of PA. its unfortunate that the media didn’t give Rohrer, a pro-freedom candidate who was Corbett’s only opponent in the primaries, any exposure. here is an article on the matter from Wired: http://www.wired.com/threatlev…..r-subpoena

  8. ‘that nobody owns the images of historical figures, and that free-speech backsliding in the West ultimately threatens all of us much more than isolated acts of semi-suicidal bravado from the pathologically aggrieved’

    WTH?
    et tu Reason?

    You just neutered the entire thing. The whole purpose of this is to insult so much as to inoculate the society to this problem. The answer to death threats isn’t happiness and joy and understanding. It is more and more extreme versions of the behavior that caused the threats. If they know that any threats and violence only encourage (and worsen) behavior they don’t like, they will cut back on said threats and violence.

    Also, wtf is up with you closing comments? That is very un-“reason like.” It really disappoints me.

    1. The whole purpose of this is to insult so much as to inoculate the society to this problem.

      I guess that’s a take on it, but not one that I subscribe to. I prefer to think that we refute the existence of a “right to not be offended” and back our position (and our willingness to stand up for it) by the simple act of offending, and then leave it at that.

      Since the claim is that any depiction of Mohamed is offensive, then it suffices to draw the man as a powerful leader of men, or if you prefer to be less politic to show him approaching his juvenile “conquest”.

      Not that I insist that you approach the issue that way, by I find the pile-on-the-insults tactic taken by some to be less the dignified. The more-or-less historical facts are sufficient indictment, and the act of drawing at all is sufficient to make the point.

  9. I like both John Roberts and Anthony Kennedy.

    Although I liberal, they seem level-headed and somewhat fair.

    Scalia/Thomas are ridiculous.

    1. If you truly believe that, you obviously have not actually read any of Scalia’s opinions or dissents in full.

  10. Hey Kuffar,

    Instead of sitting around on the internet all day, posting pointless messages, committing the sin of idolatry by attempting to draw an image of the Prophet Muhammed (pbuh), and abusing yourselves to pictures of loose women (such as the two British girls in the previous post), why not do something productive and surrender your lives to Allah?

    Western society has become decadent, weak, and lazy, and is soon to collapse. The upcoming generation, people such as yourselves, want nothing more from life than to grow fat sitting around on computers all day, masturbating, drinking, and taking drugs. You are encouraged in this behavior by corrupt politicians and absent new age parents while your societies and economies collapse around you. Meanwhile the Muslim Ummah, or brotherhood, grows rich on oil wealth and trains its upcoming generation to serve Allah, and to fight, willing to give their lives if necessary for the cause. The 19 hijackers of 9/11 have surely earned their place in paradise as do the suicide bombers who strike daily into the heart of the devil state of Israel. We are living among you, in Europe and America, and we are outbreeding you day by day, slowly taking over.

    Allah has a plan for each of us. He means us all to be good Muslims and live by his rules, as set out to the Prophet Muhammed (pbuh). Your sinful lives and wicked ways go against His plans, and you will be tortured for eternity in hell for your iniquities. Repent now and revert back to the one true faith.

    Where your joke of a faith, which no one in your society believes in anyway, tells you to love, be tolerant, and turn the other cheek, the Quran teaches us to “Kill the unbelievers wherever you find them, capture and besiege them and prepare for them every kind of ambush.”

    It also says “Against them make ready your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies, of Allah and your enemies”.

    How can you hope to win your futile so called ‘war on terror’ against us? You have become weak, and no longer willing or able to fight. You even elected a pacifist president with Muslim sympathies to try and placate us. It’s only a matter of time until we win. Even now your soldiers contine to die on the battlefields of Afghanistan, and for what? The moment you leave, it will be back to traditional Sharia law. Your technological advances count for nothing if all you do with them is watch porn and play video games. We will continue our jihad on the west, to maim and kill those who oppose or insult us. See the truth for what it is and revert to Islam immediately. It is your only hope of survival.

  11. “Executing a second-grader for stealing a video game, while insisting the penalty is not cruel and unusual? An interpretive approach that leads to such ludicrous conclusions has no real use. This single dissent cruelly exposes the limits of the “original intent” school”

    It doesn’t do any such thing.

    If you want the Constitution to mean something other than what the founders created due to “changing society”, then amend it.

    Or address your concerns through the legislative branch.

    Here is a NRO article on the this case by Thomas Sowell. It’s logic is far superior to Chapman’s.

    http://article.nationalreview……mas-sowell

    1. US laws are broadly written and open to interpretation and precedent. This is intentional and has always been this way. Allowing the laws and constituion to be interpreted and precendents to change to adapt to modern standards is a perfectly acceptable part of our legal system. This is evidenced by the brevity of the constitution. Your idea of the constitution is much more consistent with foreign laws which are far more complex because they attempt to be written to cover every possible situation.

      1. “Allowing the laws and constituion to be interpreted and precendents to change to adapt to modern standards is a perfectly acceptable part of our legal system.”

        Not on your say so – or anyone else’s.

        1. Gilbert,
          It’s not on my say–it’s how our entire legal system was built. Precedents are how the English legal tradition functions with its roots in the Magna Carta. It’s part of the “common law” system (look it up).

          1. “It’s not on my say–it’s how our entire legal system was built”

            Nope.

            Not on yor say so.

            1. Look up “common law.” Like I said, it’s not my say–it’s our legal tradition. You should try to learn about it. Understanding the English legal tradition is a key part of understanding the Constitution.

              1. “Common law” and the Constitution are two different and separate things.

      2. So, like, if the court interprets the 1st amendment specifically to protect all speech, except for that which criticizes the government, that’s just an “interpretation” and as legitimate as any other? If you can not see the potential danger in viewing the Constitution as a “living document”, then you have not thought about it very deeply.

        1. Like I said, the Constituion is a principles based document. Making sure that laws conform to those principles is the job of the Supreme Court. Your “interpretation” example is why we have courts. It is the job of the courts to decide when laws conflict with those principles in the Constitution. Without interpretation the document can’t evolve to adapt to the circumstances of the modern world. Perhaps you’d prefer it if the Constitution had defined speech?

          1. It wasn’t necessary to define speech because ALL speech was supposed to be protected. It has been the interpretations of activist judges that have defined speech.

            And are you really suggesting that our Constitution was modeled on British law? Have you forgotten that we had a little war because we didn’t like the way that system worked.

            1. I’m not suggesting that we English legal traditions as the basis for our system–I’m telling you it is a fact. http://en.wikipedia.org/wiki/English_law

              1. Wikipedia cited as ‘fact’? Scary fail!

            2. Let me understand your reasoning: if ‘activist judges’ fail to broadly interpret free speech that is bad. If ‘activist judges’ broadly interpret cruel and unsual punishment that is also bad? Or are ‘activist judges’ merely judges who don’t interpret the Constitution in the same way you do?

              1. I never said anything about cruel and unusual punishment. I think your own reasoning is in need of a little improvement if you can’t even respond to what I’m saying. Quit stabbing that poor, poor straw man, R2!

                I have no problem with the decision in this case, only with the assertion that it can be made because the Constitution is a “living document.” It can be made on the basis of the document as written – life in prison for a 17-year-old committing armed robbery is UNUSUAL, and it is CRUEL. You’ll notice that these are adjectives. Speech is a noun. It is not open to interpretation. It is what it is. There is no “…as long as no one is offended,” “…as long as it isn’t hate speech,” etc. The First Amendment is clear and unambiguous that it will not be infringed. Any judge who would interpret that to mean anything other than what it says is an activist judge who is attempting to rewrite the First Amendment.

                And you can save the trouble of linking wikipedia. It’s not exactly the most credible source of information.

      3. Allowing the laws and constitution to be interpreted and precedents to change to adapt to modern standards is a perfectly acceptable part of our legal system.

        And the proper method to adapt the law to modern standards is the legislative or constitutional amendment process, as appropriate.

        If standards change to mirror that of Nazi Germany, the U.S.S.R., militarist Japan, North Korea, or Khmer Rouge Cambodia, would the proper method of adapting to those standards be amending the Constitution, or pretending that the Eighth Amendment means something it did not mean in 1791?

  12. How about following the Constitution!

    1. The constitution didn’t define cruel and unusual punishment–that is the job of the Supreme Court. I don’t get how this decision doesn’t follow the constitution.

      1. Along the lines of R2’s point: the Constitution was never meant to, and does not, provide a civil code.

      2. Not only is the term not defined, the whole nature of punishment for crimes is entirely different now as opposed to 1787. In fact I don’t think prisons (e.g. facilities where convicts serve relatively long sentences for serious crimes, after conviction) really existed then. The whole idea, in America, of locking someone up for a long period of time as punishment for a crime is relatively new. Until the late 1800’s-early 1900’s, minor offenses like cursing, public drunkenness, etc were punished by a fine, some sort of public humiliation, a beating, or a short stay in the local jail (short because either the sentence was short, or the conditions were so hideous that the inmate died of starvation, exposure, or some communicable disease). More serious crimes (theft on up) were punished by execution.

  13. Stay classy, Clarence Thomas.

    It’ll be easy to find out if that 7 year old stole something, because the teacher can strip search him on a hunch according to you.

    1. Uh, no. The punishment called out here was subsequent to a trial in accordance with due process. Think before posting.

      1. Not according to his dissent in Safford Unified School District v. Redding.

        http://online.wsj.com/article/SB124593034315253301.html

  14. The Constitution should not be amended by SCOTUS. Can we all agree on that?

    So, when the SCOTUS takes a clause that allows eminent domain for “public use”, and says that the Constitution allows eminent domain for a “public purpose”, they have changed the wording of the Constitution, and effectively amended it, yes?

    Language is only somewhat flexible, not infinitely flexible. “Use” is not “purpose”. SCOTUS should maintain fidelity to the meaning of the words on the page, yes?

    I am a less concerned with fidelity to the meaning when adopted than I am to fidelity to the meaning today.

    “Cruel and unusual” is an interesting test case, because by its nature the understanding of what is cruel and unusual changes over time. Flogging, for example, was not considered cruel and unusual at one time, but is now. Life imprisonment used to be a highly unusual punishment, but isn’t anymore. On this issue, I think the Court almost has to try to divine the culturual moment.

    On other issues, not so much.

  15. Allowing the laws and constituion to be interpreted and precendents to change to adapt to modern standards is a perfectly acceptable part of our legal system.

    Not so fast. The common law refers to a body of law that is entirely made up of judicial decision. Allowing the courts to evolve/amend law that the courts themselves made is one thing. Allowing them to evolve/amend law that they did not make (like statutes or the Constitution) is something else.

    1. RC,
      I don’t disagree with that. As you pointed out, this decision is simply an interpretation of the words of the Constitution. The founders certainly didn’t imagine the modern world and didn’t need to because they created a principles based legal system. In some cases, I understand the criticism of the courts that they have stretched the interpretation of language to the breaking point. In this case, I see the court’s interpretation as perfectly in line with the Constitution.

  16. Freedom means answering only to a well-defined, previously established law, rather than to the arbitrary and discretionary edicts of some. I wouldn’t expect a Reason contributor to think that judges have enough knowledge to be both bearers of popular morality (understanding all of the details about what is currently acceptable and what isn’t) and able to read the law and adjudicate without reference to any other factor except the law. The two are mutually exclusive, one leads to legislation at the local level and the other presupposes that a central authority can speak for millions.

    There is nothing from preventing the state of Florida from usurping this judge’s assessment of the desired punishment. Why should a court, and not the legislature (a bearer of popular morality), decide what is cruel and what is unusual? The court can’t adjudicate the opinions of Floridians and what the law says together. Thomas read the constitution and applied it to this case; what other job does a judge have?

    If the judge takes on another judge, law becomes meaningless and confusing. the same is true, in these cases, of the individual legislatures of the states.

    1. Precedent exists and higher courts exist to prevent a “judge takes on another judge.” Appelate courts focus on cases where two judges interpret a law differently and are the arbiters of such disputes. Why does the Constitution ban cruel and unusual punishment if legislators can define it to mean anything they want? Courts exist as a check on legislative authority to ignore the Constitution. If they don’t have this authority, what’s to prevent the legislature from ignoring the Constituion entirely?

  17. I think that we should stick to the orginal intent. If we don’t like it we can amend it.

    That being said, I think the conclusion was still probably right. Based on new understanding of how the brain works and develops, it could certainly be argued that it is cruel to lock someone up for life for a crime they commit when they don’t possess full adult reasoning.

    After all, isn’t that why we don’t make people adults till 18 (or 21). To allow for them to mature fully.

    1. That being said, I think the conclusion was still probably right. Based on new understanding of how the brain works and develops, it could certainly be argued that it is cruel to lock someone up for life for a crime they commit when they don’t possess full adult reasoning.

      In the Graham case, it was apparent, as Chief Justice Roberts pointed out the mitigating facts of the case.

      As a matter of fact, juveniles are rarely convicted of premeditated murder.

      However, we should not assume that juveniles are always incapable of full adult reasoning.

      1. That’s kind of what you have to do if you have an age at which someone becomes an adult isn’t it?

        Of course some people mature quicker than others, but generally in our society, we assume that age is 18.

        Of course, in practice we apply it with a double standard, you can get locked up for life before 18, but still can’t choose to have sex (statutory rape).

        1. Of course, in practice we apply it with a double standard, you can get locked up for life before 18, but still can’t choose to have sex (statutory rape).

          Are people who have sex before 18 prosecuted for statutory rape of themselves?

  18. I’m a bit disappointed in how limited the analysis of this piece is. There are more schools of jurisprudence than “left and right.” A libertarian school of jurisprudence would be “Natural Law.” No particular justice on the court holds this view, but Thomas comes the closest. Scalia and Thomas are both believers in Formalism, the jurisprudential school of thought which believes in following precedent and deferring to the legislature when making law. The left wing of the Supreme Court, including Kennedy are definitely legal Realists, which is a school of thought that more or less believes in ruling however the hell you want and then making up the reasons why afterward. To see this stark contrast, read any decision by any justice and then read Thomas’s dissent or concurrence. It’ll go something like this:

    Roberts: We need to allow X, for the legal precedent of A, promoting overall B, and consequences surrounding C.

    Thomas: Prohibiting X from doing A is constitutional under the ____ Amendment. (because none of that other stuff has anything to do with interpreting said amendment)

    Also, although there isn’t anyone on the court with this view, federal judge Posner, who’s politically libertarian is a follower of a dangerous jurisprudential view, Pragmatism/Utilitarianism, which says law should balance hardships for the greater good. In other words, it doesn’t matter what the law says, but if I think it benefits society, I’ll rule that way. Posner btw, voted in favor of the Chicago handgun ban before it got to the Supreme Court.

  19. Much ado about nothing. In Texas criminal law, if you’re seventeen you’re an adult. End of dispute. Or, more accurately, the dispute becomes whether his prior juvenile record is admissible at his adult criminal trial for the home invasion – in plain law, burglary of a habitation with the intent to commit a felony, to wit: theft (rape?)(murder?) … whatever the kid plausibly had in his mind at the moment of the entry. Felony theft is more usually the charge in Texas. Punishment? Per Texas law, a first degree felony, punishable by no less than 5 nor more than 99 years or life in the penitentiary and a fine not to exceed … hmmm, been a while I think I forgot the maximum fine … $20,000 IIRC. See? No issue remains as he’s an adult sentenced to the maximum under the adult sentencing statute. Nothing like the Federal Sentencing Guidelines – another misnomer! – in Texas penal law.

    But Justice Thomas is correct in saying that the Eight Amendment was directed against tortures; more specifically, being drawn and quartered as a method of capital punishment. I really don’t want to go into detail; look it up for yourselves, but it’s spectacularly greusome, horrifying, agonizing and disguisting. And life in prison isn’t a fly speck in comparison, even throwing the a probability of homosexual rape. Really.

  20. The question that always nags me about sentencing of juveniles is that how can they apparently be subject to the same penalties as adults but not enjoy the same privileges? For example, a 17 year old apparently has not attained enough maturity and sense of responsibility to be able to buy a beer, yet they do have sufficient understanding of the societal impact of serious crimes and are therefore just as culpable as an adult?

    1. There is no logical connection, matt, between being subject to the same criminal penalties as adults and enjoyment of the same privileges as adults. Apples and oranges. Certainly not with the illustrations you use. A number of different factors go into the legislature setting the legal age for drinking. Punishment for crimes is most often based upon the perceived seriousness of the crime, not upon whether the perpetrator has sufficient understanding of any given crime’s “societal impact”. Nor is culpability for committing a crime predicated upon such understanding. What is punished, in theory, is (1) the intentional act causing injury or pecuniary loss to another; (2) which act is committed with a so-called “depraved heart”. Now, I freelly admit that I am not a believer in the “depraved heart” component; simply reporting what I believe to be the most common theory there. If a person has the mental capacity to intentionally commit an act, knowing that it will injure another or under circumstances where they ought to know – e.g., firing a .45 pistol at a person’s chest from a very close range – without any legal justification or excuse, then it’s a crime. Age, apart from the ability to form the requisite intent, plays no part in whether one ought to be punished for committing an offense. Once again, that is a policy decision for the legislature, subject to enough folks being pissed off by their judgement. In Texas, a 17-year old is an adult for criminal law purposes, but is not an adult for drinking alcoholic beverages. We’ve had those standards for a fair number of years now and most of us like them. There is no large legal, moral or other theoretical issue involved. You are stumbling over sentiment or emotional response rather than any genuine reasoned issue in this matter.

      1. You are stumbling over sentiment or emotional response rather than any genuine reasoned issue in this matter.

        Plus, this is also an issue of public safety.

        1. I’m not certain what you’re referring to Sr. Ejercito. One of the principal objectives of and purposes for the criminal laws is “public safety”. That seems to fall into the category of “goes without saying”.

      2. There absolutely is a connection. If you do not have the rights of an adult, then you do not have the responsibility of an adult. This is akin to saying you have to follow the law and not steal or murder, but others have the legal freedom to do the same to you. Or, perhaps, if you pay taxes, then you have the right to use public services and goods. In fact, if someone who is 19 years old is caught with alcohol, here is charged with “minor in possesion”. In this case, he is charged with a crime that calls him a minor, yet is subject to trial as an adult. Not old enough to handle alcohol, but old enough to handle prison because of alcohol? I know they don’t normally send you to prison for said crime, but it is not unheard of. Furthermore, no reasonable person can believe it is not cruel and unusual to sentence a 2nd grader to life for stealing a video game, or anyone for that matter. The idea of “reasonable person” is in fact used in many legal cases, for example in obscenity law. The penalty in this case was cruel and unusual. In one who thinks otherwise needs to have his judgment questioned.

    2. For example, a 17 year old apparently has not attained enough maturity and sense of responsibility to be able to buy a beer, yet they do have sufficient understanding of the societal impact of serious crimes and are therefore just as culpable as an adult?

      It depends on what the crime is, whether the crime that they committed shows that they are as culpable as adults.

      Keep in mind that the circumstances behind almost all crimes committed by juveniles do not warrant a life sentence without parole.

  21. As usual, Scalia and Thomas are right, and almost everyone else is wrong.

    Original Meaning

    Everything else is sophistry and BS.

    1. No, we are not dealing with original meaning. The standards of the founding fathers do not belong in today’s cases. I certainly recognize their wisdom, but there were many things that were not considered cruel and unusual at that time, like slavery for instance, and hanging “sodomites”. What was cruel and unusual at the time of the founding fathers is 100% irrelevant to what that amendment protects against. The founders did not make the Constitution with the intention that law and society would stay unchanged from the one they lived in. They made it so that the government could not evolve into tyranny, and we could enjoy a free and democratic society today.

  22. TO ALL THE COMMUNIST IN THE IG,FBI,CIA, President Obama Tells Mexican President We are Not Defined by Our Borders INPEACH OBAMA THE COMMUNIST ,GOD OPEN YOUR EYES.///For us there are only two possiblities: either we remain american or we come under the thumb of the communist OBAMA. This latter must not occur; TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT .THE COMMANDER

  23. after leaving prison for an armed robbery this 17 y.o. commits an armed home invasion…….i’d throw the key away also. this kid’s very low threshold for violence dictates that the rest of us who have demonstrated a certain level of maturity well before age 17 be protected from this psychopath. if he had broken into my home his criminal career would have been terminated then and there.

  24. we have nine learned men in dresses always struggling with the meaning of the constitution. I don’t get it. It doesn’t seem to me to be that difficult. The constitution says what it says. Read it and apply it. It does not mention abortion or gun bans or cafe standards or wetlands or the taking of one’s property to give to another or the taking of one’s cash to give to another or which doctors we can go to and under what circumstances……..see, it’s not that hard.

    “They” make it appear difficult so they can bs us into thinking that their legislating from the bench is just a normal extension of the “hidden meaning” of any aspect of the constitution………bull pucky!

    We’re going to lose this great nation out the backdoor of the supreme court.

  25. TO ALL THE COMMUNIST IN THE IG,FBI,CIA,AND U.S. Senators and the left wing media outlets ,President Barack Hussein Obama threatens friends and bows to enemies, INPEACH OBAMA THE COMMUNIST ,GOD OPEN YOUR EYES.///For us there are only two possiblities: either we remain american or we come under the thumb of the communist OBAMA. This latter must not occur; TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT .THE COMMANDER

  26. Without sounding like I am stating the obvious I assume that you are trying to teach us bloggers something with this post Liz. So I will say what I have learned and APPLIED from reading this site and this post.

  27. If the entire document would be interpreted in the current version of English, then as the language changed, so might the law.

  28. The constitution says what it says. Read it and apply it. | RAN ran ran |

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  30. I was just having a conversation over this I am glad I came across this it cleared some of the questions I had.

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