Having The Same Argument, Again.

[Greedy,Greedy,Greedy]

Originally Posted by Atticus Grinch

I didn't say it had happened all at once. But the "national consensus" standard from Kennedy v. Louisiana now applies to the harshness of sentences other than death, which means that the seriousness with which crimes are punished is now a nationalized policy. If California wants to punish the bejeezus out of hate crimes, must they show that their sentences do not fall outside the "national consensus"?

Thanks for the link to Thompson, but as I'm sure you noticed, it doesn't define juvenile for purposes of constitutional law -- it just identifies a then-existing national consensus with regard to the DP, and that age was, if I read the case correctly, lower than 18 in many states. Can a state redefine juvenile as younger than 16 and give jury trial rights and impose all sentences other than DP or LWOP? Thompson doesn't say, but you'd better bet that all defense attorneys will be contending that all imposition of juvenile sentences in all but a few states is harsher than the national consensus, if only to preserve the issue for appeal.

I see. You wanted constitutional jurisprudence that would fit on a bumper sticker.

[Southern Patriot]

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.

Son, you speak the truth here. That is why it is imperative, IMPERATIVE, I tell you, to defend the sovereign right of each state. I tell you, in these states today there are those who would defend miscegeny and who would not permit appropriate legal distinctions between, for example, Octoroons and American Citizens, even in states with no such ridiculous notions. If Florida wants to jail young'uns for the rest of their life, well, I have no problem with that. I'm sure they won't be white anyways.

[Sidd Finch]

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.

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.

[Cletus Miller]

Originally Posted by Sidd Finch

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.

Believe it was concurred in the instant case, but opposed the extension to all applications.

[Atticus Grinch]

Originally Posted by Southern Patriot

Son, you speak the truth here. That is why it is imperative, IMPERATIVE, I tell you, to defend the sovereign right of each state. I tell you, in these states today there are those who would defend miscegeny and who would not permit appropriate legal distinctions between, for example, Octoroons and American Citizens, even in states with no such ridiculous notions. If Florida wants to jail young'uns for the rest of their life, well, I have no problem with that. I'm sure they won't be white anyways.

Sir, let us not forget that it was neither a Southerner nor an accursed Northerner, but an Englishman, that wrote the opinion in United States v. Bhagat Singh Thind that firmly established the principle of our laws, so necessary in these troubled times, that it's not good enough merely to be Aryan to qualify for the many blessings of citizenship, but also that you must particularly be an Aryan who is also a white person. Of course, the other enlightened members of the Court concurred unanimously in this somewhat obvious conclusion, but it is a shame ever to be regretted that an American-born legal scholar did not act as Promethian protector of our basic truths.

[Atticus Grinch]

Originally Posted by Sidd Finch

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.

It's kind of my thing here to get all exercised over minor developments, and I got such little affirmation here when I denounced Kennedy v. Louisiana as just straight-up legislation from the bench, that I thought I would remind everyone that we're slouching towards Gomorrah yet again. Don't come crying to me when the Supreme Court rules that punishing people who shoot abortion providers is cruel and unusual because it is against a "national consensus" set by a bunch of red state laws.

[sgtclub]

Originally Posted by Hank Chinaski

is there a reason we can't require socks to embed a picture of a lady almost showing her boobies into long posts like that?

You're right, my bad.

[Sidd Finch]

Originally Posted by Atticus Grinch

It's kind of my thing here to get all exercised over minor developments

True, and in fact instead of writing that what you said "is an absurdity" I almost wrote "is, well, you being you."

Don't come crying to me when the Supreme Court rules that punishing people who shoot abortion providers is cruel and unusual because it is against a "national consensus" set by a bunch of red state laws.

Nicely done. I retract everything I said about bugbears, overreacting, and so forth.

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

David Brooks called out Elena Kagan for being a technically intelligent non-decider last week.

That criticism was inane. In the last fifteen years, Elena Kagan has had three highly sought-after, prestigious, important jobs in which she has had very significant responsibilities but in which, for various reasons, she didn't leave a public paper trail of decisions and positions for people like Brooks to dissect. What's Brooks doesn't understand or is intentionally overlooking is that in two of these jobs, she was practicing law at the very highest level for demanding clients. It's just that her paper trail in the White House and as the SG isn't made public. In the third job, as the dean at HLS, she has a public record, just not one that sheds much light on what her jurisprudence would be like. Brooks might as well say Bob Woodward isn't much of a journalist because he doesn't make his sources public.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

That criticism was inane. In the last fifteen years, Elena Kagan has had three highly sought-after, prestigious, important jobs in which she has had very significant responsibilities but in which, for various reasons, she didn't leave a public paper trail of decisions and positions for people like Brooks to dissect. What's Brooks doesn't understand or is intentionally overlooking is that in two of these jobs, she was practicing law at the very highest level for demanding clients. It's just that her paper trail in the White House and as the SG isn't made public. In the third job, as the dean at HLS, she has a public record, just not one that sheds much light on what her jurisprudence would be like. Brooks might as well say Bob Woodward isn't much of a journalist because he doesn't make his sources public.

I said, "I don't know if she is or isn't" what Brooks accuses. Did you read that?

And she isn't the point. I was merely using Brooks' article to demonstrate I'm hardly the only person alive to have noticed, "Wow, a lot of what passes for 'talent' these days is robotic obedience married to the cheapest forms of technical intelligence." If Brooks - possibly the least insightful voice in punditry - notices we're breeding corporate wastelands of wind up dolls, the problem's probably terminal.

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

I said, "I don't know if she is or isn't" what Brooks accuses. Did you read that?

Yes, and I was helping you decide.

He's talking about a woman who worked in the White House, was the Dean of HLS, and the Solicitor General before she was 50. Any one of those jobs would be the career highlight for most people. If he thinks she's failing upwards, he should try to figure out why she's doing it with such velocity.

Seriously -- there's a huge difference between her career and a law professor who writes pointless articles on technical subjects that no one will care about.

And she isn't the point. I was merely using Brooks' article to demonstrate I'm hardly the only person alive to have noticed, "Wow, a lot of what passes for 'talent' these days is robotic obedience married to the cheapest forms of technical intelligence." If Brooks - possibly the least insightful voice in punditry - notices we're breeding corporate wastelands of wind up dolls, the problem's probably terminal.

There seem to be a lot of those people around if you go looking for them, but why bother?

[Mmmm, Burger (C.J.)]

Originally Posted by Greedy,Greedy,Greedy

I see. You wanted constitutional jurisprudence that would fit on a bumper sticker.

Got hope?

[Mmmm, Burger (C.J.)]

Originally Posted by Tyrone Slothrop

What's Brooks doesn't understand or is intentionally overlooking is that in two of these jobs, she was practicing law at the very highest level for demanding clients. It's just that her paper trail in the White House and as the SG isn't made public.

I thought all that stuff was supposed to be made public after all the ills Bush caused.

[Atticus Grinch]

Originally Posted by Sidd Finch

True, and in fact instead of writing that what you said "is an absurdity" I almost wrote "is, well, you being you."

Facebook is suggesting that I friend Rebecca Romijn. Not fan; friend. So y'all can suck my dick. Hollywood bigtime, here I come!

[Greedy,Greedy,Greedy]

Originally Posted by Mmmm, Burger (C.J.)

Got hope?

Not if you're a juvenile offender in Attica.