May 23, 2024

When Judges Become Legislators

US Supreme Court 1

Back when we were having the debate over Capital Punishment one of the areas that always comes up is whether it is just, and the fact that God has a bunch of rules in the Old Testament that have, as their sentence, death.

At that point, I hadn’t even realized that up until yesterday six states had the death penalty as the result of the rape of a minor.

What I think is interesting about this ruling is that, up until yesterday, states could declare that things other than murder could result in the death penalty.  Which struck me as interesting when we are supposed to be so enlightened in this day and age, and the Old Testament so backwards.

But I think the more interesting bit to think about is the whole concept of “finding things” in documents—finding rights, finding new truths, and the whole concept of a living document.

It’s said that you can find passages in the Bible passages to make the Bible back any argument.  In fact, that’s one of the things leveled against Christianity by Atheists and Agnostics—the varying interpretations of the Bible.

However, what the Justices showed us yesterday, is that you’re also able to find anything you want in the Constitution.  They can take an Amendment about Cruel and Unusual Punishment and apply it, nearly at will, to what the states decide—what the people decide—and that is the end of the discussion.

Certainly, the Constitution had nothing to say about what deserved the death penalty, and the Supreme Court just recently ruled that the Death Penalty was Constitutional.  So what gave these Justices the right to decide for the state what heinous crimes deserved the Death Penalty?  Where did the Congress and President declare that the Death Penalty could only be used for cases of murder?  The other branches certainly could have done that—but they had not.

We cross a fine line when we move from saying what the law says to saying what we think the law should say.  And this is the same admonition to Christians.  We must say what God says about something, and refrain from saying what we think God says about a thing.  Because we often have the tendency to mistake our thoughts for His thoughts—when His thoughts are far greater.

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4 thoughts on “When Judges Become Legislators

  1. I’ve actually read up on this, and I’ll try to explain it to you the best I can.

    The courts do not make legislation, what they do is decide which laws apply to a certain case. Now when deciding which laws apply to a case the courts must take into account what type of law it is and what it takes precedent over. Is it city law, state law, federal law, or constitutional law? Each of these laws going down the list takes precedent over the laws that come before it on the list.

    For example: If there is a city law saying you can’t say anything that is determined to be hate speech, a judge would look at the city law and then look at the first amendment (which is constitutional law) and rule that the first amendment has precedent over the city law and thus is the law to be applied.

    I hope everything is clear so far, let’s move onto the interpretations of ‘cruel and unusual punishment’.

    ‘Cruel and unusual punishment’ is a subjective phrase and it’s meant to be. The founding fathers knew that what is considered cruel would change over time, and if they where to specify what cruel is in the constitution, the constitution would have to be amended every ten or twenty years (when society decides that the ‘saw’ might not be the best punishment for thieves). With the phrase ‘cruel and unusual punishment’, though, the clause could change meaning to the current definition of society without amendment (which at the time the less amendments the better).

    Now put the two points together. Even if a legislature puts the death penalty as a punishment, if society says that the death penalty is cruel and unusual punishment, the judges are required by their job to apply the higher law and not hand out the death penalty.

    Well, if anything is unclear tell me and I’ll try to re-explain it.

    P.S. It’s not a perfect system, but it serves its purpose without to much collateral.

  2. @Loc: Thanks for spelling it out plainly. My problem is not with the idea of a hierarchy of law. My problem is the application of Constitutional law (ruling that law X is within a Constitutional jurisdiction) when it does not appear to be that way.

    In this specific case we had multiple states that have on their books that if someone raped, mutilated and abused a child of 6 or 8 that it would be punished by death. Certainly the populations of these states either tacitly or overtly agreed with the ruling. And they’re part of society.

    But what about the other states? What are the feelings of other people regarding child rape? We don’t really know. What we do know is how 5 of the 9 justices feel about it. We know that they say society has a problem with it, but other than having a survey asking the question we don’t have a good way to find out.

    We cannot logically say that because 44 of the states do not have such a law that it means that the death penalty is cruel and unusual in this circumstance– just that 44 of the states chose not to apply it. We could imply that any state that believes that capital punishment is wrong regardless of the offense would also think it wrong for the child rapist, but then again, we have to take into account that there would even there be a minority that would support it as a punishment.

    In the face of an absence of consensus, or a convince survey or set of data, it should have been left for the states to decide. There was no Constitutional grounds here.

  3. There also used to be states that had segregation written into their laws. I guess those judges were wrong when they ruled them unconstitutional. And the judges that ruled in Brown vs. Board of Ed. They were wrong as well.

    Just because you don’t agree with what judges have to say doesn’t necessarily mean they are wrong.

    Musicguys last blog post..Can’t Cure Stupid

  4. @Musicguy: The question is, what role should the Supreme Court play? Judging whether a given thing is right or wrong, I believe, it outside of their role. They are to judge whether a given thing is Constitutionally supported.

    The 13th and 14th Amendments mandated an end to segregation. Up until then it was legal, though wrong.

    I would add this corollary to your closing statement– even if I agree with what the judges have to say doesn’t mean that they should be saying it. Having five unelected people decide the course of the country, or its moral values, is definitely not what the Founders intended.

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