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The United States Supreme Court ended its 2007-08 session with a mixed bag of accomplishments. It did hand some setbacks to the Bush Administration on the rights of prisoners being held on the so-called "war on terror" who had not been given adequate recourse in the justice system. The court asserted over Bush administration objections that the Constitution must prevail, even in time of dire problems. This followed similar rebukes to the administration detention policies in 2004 and 2006.Writing for the majority in the latest decision Justice Anthony Kennedy said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times," which shouldn't have to be explained to anyone at any time.
But the four far-right justices, as expected, asserted their belief that government should not be hampered with laws protecting the individual from government power, even power as misguided as with the Bush administration.
But on important constitutional matters affecting citizens of the United States, the court presided over one off the worst, or misguided, sessions in history.
John McCain, the Republican presidential hopeful, said he thought that "abuse of judicial authority" had continued unchecked, even with conservatives appointing the majority of court members. "The result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution," McCain said recently at Wake Forest University in North Carolina
As an example, he pointed to the Supreme Court ruling three years ago that struck down the death penalty as "cruel and unusual punishment" for murderers who were under 18 at the time of their crimes. He said the 5-4 decision in the case of Roper vs. Simmons was based on "airy constructs" such as "the evolving standards of decency."
"The result was to reduce the penalty, disregard our Constitution and brush off the standards of the people themselves and their elected representatives," McCain said.
McCain's complaint is bull-tikki.
The founders did not put a definition of "cruel" punishments into the Constitution, therefore that definition would naturally evolve over time to reflect the societal concept at a given moment. What was not considered cruel in the 18th century could easily be considered cruel in the 21st century, thereby being constitutional at one period of history but unconstitutional when morality had advanced. It's called a "living constitution" that is easily adaptable to reflect issues as they are, not as they once were. "The evolving standards of decency" is clearly what the Founders had in mind when they refused to offer a strict unchanging definition to the word "cruel," and it is that ability to evolve that has left the Constitution relevant at any time in history rather than being outdated within decades of its creation.
But McCain said if elected he would appoint more judges along the line of John Roberts and Samuel Alito, who, with Antonin Scalia and Clarence Thomas, are the most guilty of straying from or ignoring the Constitution. Their ability to "disregard our Constitution" appears to be just what McCain is seeking. And the "standards of the people themselves and their elected representatives" are immaterial when those standards run counter to the meaning of our constitutional principles.
The founders gave government powers to address issues as they arose, not to lock ourselves into an 18th-century political agenda or to semantical definitions. McCain doesn't understand the Constitution he has been repeatedly elected to uphold and protect.
The court made egregious decisions on three important cases that affect us all including the death penalty, the right to vote and gun rights.
We first consider the reasoning of the death-penalty case by quoting an April article, written after the decision was handed down, by Gilbert King, the author of "The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South."
King wrote:
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THE Supreme Court concluded last week, in a 7-2 ruling, that Kentucky's three-drug method of execution by lethal injection does not violate the Eighth Amendment's prohibition on cruel and unusual punishment. In his majority opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that "involve torture or a lingering death."
But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In this nation's landmark capital punishment cases, the resultant executions were anything but free from torture and prolonged deaths.
The first of those landmark cases, the 1879 case of Wilkerson v. Utah, was cited by Justice Clarence Thomas, in his concurring opinion in the Kentucky case. The court "had no difficulty concluding that death by firing squad" did not amount to cruel and unusual punishment, Justice Thomas wrote.
Wallace Wilkerson might have begged to differ. Once the Supreme Court affirmed Utah's right to eradicate him by rifle, Wilkerson was let into a jailyard where he declined to be blindfolded. A sheriff gave the command to fire and Wilkerson braced for the barrage. He moved just enough for the bullets to strike his arm and torso but not his heart.
"My God!" Wilkerson shrieked. "My God! They have missed!" More than 27 minutes passed as Wilkerson bled to death in front of astonished witnesses and a helpless doctor.
Just 11 years later, the Supreme Court heard the case of William Kemmler, who had been sentenced to death by electric chair in New York. The court, in affirming the state's right to execute Kemmler, ruled that electrocution reduced substantial risks of pain or "a lingering death" when compared to executions by hanging. Kemmler, had he lived through the ensuing execution (and he nearly did), might too have disagreed.
After a thousand volts of current struck Kemmler on Aug. 6, 1890, the smell of burnt flesh permeated the room. He was still breathing. Saliva dripped from his mouth and down his beard as he gasped for air. Nauseated witnesses and a tearful sheriff fled the room as Kemmler's coat burst into flames.
Another surge was applied, but minutes passed as the current built to a lethal voltage. Some witnesses thought Kemmler was about to regain consciousness, but eight long minutes later, he was pronounced dead.
Perhaps the most egregious case came to the court more than 50 years later. "Lucky" Willie Francis, as the press called him, was a stuttering 17-year-old from St. Martinville, La. In 1946, he walked away from the electric chair known as "Gruesome Gertie" when two executioners (an inmate and a guard) from the state penitentiary at Angola botched the wiring of the chair.
When the switch was thrown, Francis strained against the straps and began rocking and sliding in the chair, pleading with the sheriff and the executioners to halt the proceedings. "I am n-n-not dying!" he screamed. Gov. Jimmie Davis ordered Francis returned to the chair six days later.
Francis' lawyers obtained a stay, and the case reached the Supreme Court. Justice Felix Frankfurter defined the teenager's ordeal as an "innocent misadventure." In the decision, Louisiana ex rel. Francis v. Resweber, the court held that "accidents happen for which no man is to blame," and that such "an accident, with no suggestion of malevolence" did not violate the Constitution.
Fewer than 24 hours before Francis' second scheduled execution, his lawyers tried to bring the case before the Supreme Court again. They had obtained affidavits from witnesses stating that the two executioners from Angola were, as one of the witnesses put it, "so drunk it would have been impossible for them to have known what they were doing." Although the court rejected this last-minute appeal, it noted the "grave nature of the new allegations" and encouraged the lawyers to pursue the matter in state court first, as required by law.
Willie Francis was executed the next morning. Because his case never made it back to the Supreme Court, the ruling lingers, influencing the decisions of today's justices. In his majority opinion last week, Chief Justice Roberts called Louisiana's first attempt at executing Francis an "isolated mishap" that "while regrettable, does not suggest cruelty."
Justice Clarence Thomas, writing separately, also mentioned the Francis case: "No one suggested that Louisiana was required to implement additional safeguards or alternative procedures in order to reduce the risk of a second malfunction." In fact, Louisiana did just that. Two weeks after the botched execution of Willie Francis, its Legislature required that the operator of the electric chair "shall be a competent electrician who shall not have been previously convicted of a felony." This law would have prohibited both executioners from participating in Francis' failed execution.
The court's majority opinion in the Willie Francis case acknowledged, "The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence." Yet the Supreme Court continues to flout that standard.
In its ruling last week, the court once more ignored the consequences of its rulings for men like Wallace Wilkerson, William Kemmler and Willie Francis. The justices cited and applied Wilkerson's and Kemmler's cases as if their executions went off without a hitch.
And 60 years after two drunken executioners disregarded the tortured screams of a teenage boy named Willie Francis, the Supreme Court continues to do so.
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It seems that the legal profession has trouble with the English language.
That trouble was pictured by the words of Justice Thomas, in his concurring opinion that the court "had no difficulty concluding that death by firing squad" did not amount to cruel and unusual punishment.
The Cornell University law school had stated that, "The Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment's ban on cruel and unusual punishment."
So it seems that Supreme Court judges and law school professors can't use the English language correctly, just as Mr. King couldn't, because that is not what the Eighth Amendment says. In Reporting the story leading to the court decision neither The New York Times or Los Angeles Times could use the phrase correctly.
The Eighth Amendment does not prohibit "cruel and unusual punishment," it prohibits "cruel and unusual punishments." The difference that "s" at the end of "punishment" makes is significant.
First: "cruel and unusual punishment" is not literate. The phrase "cruel and unusual punishments" indicates two types of punishment are prohibited; those that are cruel and those that are unusual. That means any punishment that is humane is allowed just as is any punishment that is normal for the offense. When someone uses the phrase "cruel and unusual punishment" he or she is trying to say "cruel-and-unusual punishment" but doesn't have the awareness to know the difference between multiple adjectives and compound adjectives. Judges, lawyers and law professors, as well as journalists, should know because their disciplines demand precise definitions and understanding of language. It's only a matter of mastering junior-high-school English to know that adjectives don't modify adjectives, therefore they have to be compounded with hyphens for that purpose, a lost American art.
In a recent interview on the television program 60 Minutes judge Scalia said that torturing prisoners during interrogation didn't amount to "cruel punishment' He was technically correct. The Eighth Amendment is an extension of the Fifth, Sixth and Seventh Amendments. all of which concern legal matters. The Fifth and Sixth pertain to criminal trials and the Seventh to civil trials. Not one of them specifies what sort of punishment is or is not approved following an adverse judgment so the Eighth Amendment covers the punishment aspect of all three amendments and since interrogation is not a conviction the Eighth's prohibition doesn't apply.
What would apply is the rejection of torture for any reason specified in various treaties the US is partner to.
Anthony Kennedy, in the 2005 opinion invalidating the death penalty for juveniles because it invoked international law (although it wasn't the basis for the ruling), relied on tests such as "evolving standards of decency" which is exactly what the Eighth Amendment is supposed to do. And the constitutional meaning of the word "cruel" is the meaning the present society holds, not the meaning given it in the 18th or 19th Century or at any other time.
VOTER ID LAWS
After the court accepted Indiana's voter ID law, reports arose around the state telling of people who were legal residents of the state prevented from voting in primary elections because they lacked "photo identification." Eight elderly nuns were prevented in one instance. That elderly nuns had no need for state-issued driver's licenses was of no consequences to those who support such voter-suppression measures.
Article I, Section 8, paragraph 18 of the United States Constitution specifies that laws are to be "necessary and proper," a constitutional requirement totally ignored by this court. Even in the despicable Plessy v. Ferguson decision that authorized "separate but equal" treatment the court ruled that government can't make a law just to harass others. But this is exactly what the Indiana law did. The court said in Plessy that, "every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class."
No voter-fraud case had ever been tried in Indiana, as even the law's proponents conceded, therefore the law was not necessary and should have been declared unconstitutional on that alone. And laws in Indiana and many other states that purposely disenfranchise thousands of Americans as this voter-ID craze promises are hardly proper nor reasonable and not enacted in "good faith". But the judges that McCain so adamantly admires totally ignored the Constitution and Supreme Court precedence in upholding a totally unnecessary law. And the court did so with the explanation that such voter-ID laws constitute only a "minor inconvenience," a statement absent from the Constitution.
It is strange and inconsistent that the court would refer back to 1879 and 1890 to find court precedents for definitions of cruelty in death-penalty cases but wouldn't go back to 1896 for a precedent that said laws are to be "necessary" or "in good faith" and promote the public good or many other statements in court decisions over the years that emphasize that government must have a "compelling interest" in making the laws that it makes.
GUN CONTROL
While a lower court was accurate in voiding DC's ban on private ownership of handguns and the Supreme Court agreed, they both did so by ignoring the Constitution. The Second Amendment's reference to a "well regulated militia" was designed to refer us back to the body of the Constitution at Article I, Section 8, paragraph 16, that empowers Congress the authority to organize, arm and discipline the various state militias. The arming part put the power to determine who is eligible to own a firearm definitely in the hands of Congress, although the amendment does not indicate that actual militia membership is required. The Founders wanted society to be armed so that armed men could be mustered into the state militias to protect the nation. Because Congress has the power to arm the militias, states and cities can not deny ownership of firearms to anyone who might be eligible under federal law. States and local governments do retain the power to determine the use of public property so could make it a crime to possess a firearm on public property such as buildings and streets (unless carrying such arms to militia duties were authorized by Congress). States and localities also have the power to outlaw the use of firearms during the commission of a crime, but ownership is another matter.
But the courts in ruling that each individual has a personal right to own firearms undermines the power of Congress because it totally ignored the introduction of the amendment that refers back to the powers of Congress to arm the militias. The right "to keep and bear arms" is a communal right not an individual right, which the court ignored. If it were an individual right, the amendment would have to read "no person's right to keep and bear arms shall be infringed." If it were an individual right, such as is religion, every person could legally own a firearm, including released murderers, insane homicidal maniacs or any criminal of any stripe. So when Scalia wrote for the court that, "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" he and the court contradicted himself and itself.
James Madison, who wrote the amendment said, "A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country." Madison even wrote that belief into the Second Amendment with the words, "A well regulated militia being necessary for the security of a free State ..." which means national defense and nothing else. Madison wrote the Second Amendment to facilitate national defense, and for no other reason. That is what he said and that is what the judges ignored.
When the court ruled that each individual had a right to have a firearm for "the defense of hearth and home," it put words into the Constitution that aren't there, the exact thing that Scalia claims others do. The amendment says nothing about self-defense, self-protection or anything like that; it refers to national defense.
The true meaning of the Second Amendment, which the court missed, is that Congress has sole authority over ownership of firearms while states and cities have none. Congress cannot totally outlaw firearm ownership in society but can deny that ownership to some people. Right wingers constantly claim that the power to make gun-control laws will result in confiscation of all guns. That is nonsense and shows conservatives have no understanding of the Constitution. Both the Fifth and Fourteenth amendments say no one can be deprived of life, liberty or property without due process of law. Due process consists of indictment, trial, conviction and punishment, the Fifth clearly shows that. A firearm is property, so it can't be confiscated except as a punishment following a criminal conviction.
While the rule of law to invalidate DC's banning of handguns was correct, the reasoning was faulty and didn't follow the Constitution.
This court had historical opportunities to firmly state what "cruel" punishment means and to separate it from "unusual" punishment, to reaffirm the requirement of necessity in law making and to finally declare precisely what the Second Amendment means but missed the chances by ignoring what that document says and substituting the judges' personal opinions on all matters.
Scalia claims that he is an "originalist" on the Constitution; that is, he claims to adhere to the meanings and concepts the Founders intended and that the Constitution's words are clearly meaningful to him. On these three issues Scalia is defying his claim.
And McCain wants more judges on the court who neglect the Constitution, disregard precedent, ignore logic and who engage in "abuse of judicial authority".
