Some time ago, I wrote about how a court arrives at it's decisions should not be overlooked simply because one happens to agree with a particular ruling.
There really is no Constitutional support for activist judges. One may like the current results and think, "It's good to be the king". However, such thinking doesn't rise above the level of an entertaining comedy and is beneath serious political though. If Dred Scott doesn't prove the point, then Kelo should make it clear that such a benevolent despotism can very easily turn against society. (It's good to be the king)
I've seen this mistake again, in discussions over the Supreme Court decision that declared capital punishment for violently raping a child was unconstitutional. Perhaps some may begin to understand the point being made, if it comes from a constitutional scholar, one that is not considered conservative and who is also not that enthusiastic about the death penalty. From Laurence H. Tribe:
Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.
But there was a problem with the court's understanding of the basic facts. It failed to take into account — because nobody involved in the case had noticed — that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.
Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings. (source, thanks to The Volokh Conspiracy)
Be sure to read the entire post at The Volokh Conspiracy, as well as the link there, for further discussion and consideration of one of the arguments Tribe makes.
The court not only missed the fact mentioned, the majority also ignored that society had moved away from capital punishment because an earlier court decision had declared it unconstitutional. That having been overturned, states reinstated the death penalty. This would indicate that society was moving towards capital punishment, rather than away from it as claimed by the majority.
Distorting the facts helps hide that the personal morality of the judges was the justification, but that doesn't change the fact that their job is not to institute their personal moral code as the law of the land.
For those who resist such an idea, because the rulings, more often than not, go in a direction they like, let's consider a judge who held the moral values of Fred Phelps. If judges are allowed to ignore the constitution and the actual facts in society, and replace legislative lawmaking with their own morals, what would stop someone like Phelps if they were a judge? The Constitution is no defense, that's already been tossed aside, in essence killed by the phrase "living document".
Trackposted to: Perri Nelson's Website, Political Byline, third world county, Allie is Wired, DragonLady's World, Maggie's Notebook, Adam's Blog, Right Truth, The World According to Carl, , The Pink Flamingo, Cao's Blog, Democrat=Socialist, , and Conservative Cat, thanks to Linkfest Haven Deluxe.