Quote:
Originally Posted by Atticus Grinch
I'm decrying the nationalization of criminal law. I think the Constitution was meant to secure certain standards of national citizenship rights -- "You can't be a member of our Union if you do X to your residents." But I do not think that it was intended -- or should be read now -- to say that everything that most Americans agree is true should become a condition of a state's membership. I might personally think that gay marriage is good policy and cousin marriage is bad policy, but I shy away from saying that it's a core American value because I know there are loads of people who've said that sentence the other way. And which behaviors are punished and by how much has historically been a matter of non-national policy, and they lever that the Court is using to save people from meanness and stupidity is damaging. The beef I have with "national consensus" is that a majority of states are just as likely to be venial and shortsighted as a majority of people, but the Court can only bird-dog the outliers. It's like saying states are laboratories of democracy, but once 26 of them have announced there's no way to turn lead into gold all the others have to give up, too. Where's the principle behind that?
And all of this is true, but an argument that where the Constitution said something but wasn't clear on exactly what it was trying to prohibit, having a top-down solution imposed by five Justices may not have been what the Framers really imagined would happen.
Back in the days the Court was the last bastion of progressivism against the know-nothingism of the elected branches, I was a big fan of judicial power. Now that the GOP has the Court and the Dems have the other branches, I'm less sanguine about the Court as a beacon of light in a dark age. And I continue to be surprised at liberals who trust the Court as an institution and think it's just a matter of ridding ourselves of that Italian Catholic one and the black guy who isn't really black because of what he believes. (Not saying anyone here believes this, but it's an unspoken sentiment by non-lawyers who think of the SCOTUS as a political playfield.) I think that's short-sighted. Before there was a Warren court there were the Four Horsemen. Powerful courts mean empowered individuals, and the flip side of the empowered individuals coin is disempowered majority. It's fun to think of little guys winning court battles, until you realize it means 99% of us not having the rules we voted for, which is a stronger principle of our government than even freedom -- whatever that means.
End soapbox, I suppose. I'm a lawyer so I swore to uphold laws represented by binding precedent. But I don't have to like it.
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I think you are getting a little carried away about one decision. The application of the 8th Amendment to prohibit anything is an extreme rarity. The notion that this decision in any way means, or even suggests, "that everything that most Americans agree is true should become a condition of a state's membership" in the union is an absurdity.
Another absurdity is the statement that "It's like saying states are laboratories of democracy, but once 26 of them have announced there's no way to turn lead into gold all the others have to give up, too." The word "consensus" has more than one meaning, and I don't believe that the definition that is similar to "majority" was being used here. And there are enough cases on the 8th Amendment to suggest that the federal courts don't do anything of the sort -- that you are just creating a bugbear of "26 states can control the nation".
The decision means nothing more than that the Constitution, in certain arenas, imposes boundaries that states have to stay within. Those boundaries are, and should be, very broad. You may not have drawn them at "LWOP for juveniles who did not kill anyone," but getting so exercised over the fact that 6 justices* did, or reading into that decision a significance equivalent to, say, the long-term impact of Roe v. Wade is getting a little carried away.
*Was it 5 or 6? Your link said 6, NYTimes said 5, and I can't remember if Roberts concurred in the ruling without joining the opinion or if he opposed without joining the dissent.
