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."
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."
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Thomas Bonsell is a former newspaper editor (in Oregon, New York and Colorado) United States Air Force cryptanalyst and National Security Agency intelligence agent. He became one of American journalism's leading constitutional experts through years of study at Georgetown University Graduate School of Government in Washington, D.C., and tries (without much success) to be patient with people who argue endlessly on subjects they have never studied. He is the author of "The Un-Americans: Trashing of the United States Constitution in the American Press", a critique of the mainstream media for ignorance of, or disdain for, our constitutional principles of self-government. He left newspaper work years ago, disgusted at the direction the Fourth Estate ~ under the mismanagement of ineffectual, out-of-touch, can't-do executives ~ was taking away from honest responsible journalism and the observation that there was no place in the mainstream media for a progressive, or liberal, constitutional "expert". Bonsell is an honors graduate of Woodbury College (Los Angeles, California) with a bachelor of business administration degree. He is profiled in Marquis Who's Who in America. (Self-portrait, above, was handled to make author/artist appear prettier than he actually is.)
Personal motto: Have brain; will use.
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