Utterly Meaningless » Blog Archive » STRIKE TWO

STRIKE TWO

Filed at 5:47 pm under by dcobranchi

Dammit. I so wanted this election to not be about picking the least bad choice:

On Wednesday, after the Supreme Court ruled that the death penalty was unconstitutional in cases of child rape, Obama surprised some observers by siding with the hardline minority of Justices Scalia, Thomas, Roberts and Alito. At a press conference after the decision, Obama said, “I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

18 Responses to “STRIKE TWO”


Comment by
COD
June 27th, 2008
at 7:10 pm

Welcome to the race for the center.


Comment by
Daryl Cobranchi
June 27th, 2008
at 7:29 pm

I never thought I’d find myself apparently far to the left of “the most liberal senator.”

The strange part is, though, that both of these last two episodes really aren’t left/right. They are both about governmental power. I don’t trust the government to spy without a warrant and I don’t trust them not to kill innocent people.

I guess Obama does.


Comment by
Audrey
June 27th, 2008
at 9:44 pm

Isn’t this the way it always goes though? Every election sees both candidates pandering to whomever is in front of them at the moment, while simultaneously attempting to word everything so as not to completely piss off the people they were pandering to last week, nor the ones to whom they’ll be pandering next week.


Comment by
Nance Confer
June 28th, 2008
at 7:43 am

Sounds about right, Audrey. 🙂

But is this a change for Obama? Hasn’t he always favored the death penalty in extreme cases? Once you take that step, it’s just defining what “extreme” means, isn’t it?

Nance


Comment by
Daryl Cobranchi
June 28th, 2008
at 9:48 am

It’s a bit of a change (and for the worse). From TNR:

Obama’s support for the execution of child rapists wasn’t invented for the presidential election; it dates back to The Audacity of Hope, where he wrote: “While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes–mass murder, the rape and murder of a child–so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.”


Comment by
JJ Ross
June 28th, 2008
at 10:14 am

Daryl, I’m trying to be clear on what it is that you disagree with him about, constitutionally speaking. It seems he (the constitutional law professor) says only that if capital punishment for heinous crimes isn’t automatically “cruel and unusual” then it’s not constitutionally prohibited for one state government to define heinous as including child rape.

Is that how you read what he said, and do you disagree?


Comment by
JJ Ross
June 28th, 2008
at 10:30 am

OTOH, Nina Totenberg said on NPR this morning that there are SCOTUS rulings leading up to this week, that limit constitutional capital punishment to “killing” crimes where if someone isn’t dead, they use a rule of thumb that DOES define capital punishment as cruel and unusual in that case. Hence this decision, with which Obama takes interpretive issue and sees more room for states rights in defining both the crimes and the punishments.

So could it be Obama is better understood as having constitutional opinion differences with the emerging SCOTUS majority dating back to those cases? I’m not familiar with those at all —


Comment by
Daryl Cobranchi
June 28th, 2008
at 10:53 am

The SCOTUS has held that the death penalty is cruel and unusual for rape cases. Only 12 states (IIRC) even have it on the books for the rape of a child. I doubt even half of them would attempt to impose it. So the penalty seems pretty “unusual” to me.


Comment by
JJ Ross
June 28th, 2008
at 12:16 pm

Yes, very recently but not ever since the constitution was crafted. Hanging horse thieves (never mind murderers and rapists) wasn’t always unusual . . .

There’s a growing public sensibility that the death penalty is cruel and unusual period, thus unconstitutional period. I think that’s where we’ve been headed for decades, and where we’ll wind up soon.

But let’s don’t go there with constitutional arguments that cut against us the next time.

For example, let’s say SCOTUS strikes down Roe v Wade (not unlikely and arguably they should, not ideologically but just as bad constitutional law) and then women’s reproductive rights are left to each state.

Legal abortion rates have been shrinking over time and providers are getting scarce, right. And say only one, or six or twelve states, define reproductive rights broadly as Roe once did, while the rest outlaw abortion and restrict various other reproductive rights.

SCOTUS could declare abortion to be cruel and unusual punishment, along with any form of birth control and perhaps even pregnancy-problematic behavior such as maternal drinking, smoking and working outside the home, and find that it punishes innocent life to boot, and is therefore unconstitutional anywhere.

I would object as Obama does in the child rape case, and argue an alternate constitutional meaning of “cruel and unusual”!


Comment by
JJ Ross
June 28th, 2008
at 12:31 pm

OTOH again – here’s a different line of thought. The time could be ripe for drawing a bright line between us and the Taliban-type middle east tribal fundamentalist terrorists (whatever we’re calling them now) and we could do that with the issue of capital — even corporal — punishment.

We don’t chop off hands, flog people or kill for revenge or honor. We are not barbaric. I could craft a rather elegant argument around that, I think, with our Constitution as the centerpiece. But it would have to extend to not killing criminal or torturing animals (much less humans) and even to not hitting women and children in the home. Etc.


Comment by
Daryl Cobranchi
June 28th, 2008
at 1:13 pm

I should have stated above that I’m opposed to the death penalty under all circumstances. Not only is it cruel and unusual, but the State often does NOT get its man (or woman) and, instead, sends an innocent man (or woman?) to death row.

How many people has the State murdered in the last 40 years who were merely guilty of having the wrong color skin and a lousy attorney?


Comment by
JJ Ross
June 28th, 2008
at 2:36 pm

Ah, a different argument and a good one — unequal justice?

Let’s suppose there a guy, we’ll call him Daryl, who wants the death penalty ended throughout the US, and also wants to protect unfettered individual rights such as private gun ownership, reproductive choice and home education throughout the US — yet he also generally prefers “states’ rights” over a strong centralized federal government, opposes a national curriculum, national data banks and federal papers for driver licensing, etc.

What is Daryl’s best interpretation of the constitution as one integrated document, to support what he wants without undermining himself on one stance, in service of another? (I don’t know the answer! I’m posing the question because I think about this kind of thing a LOT.)


Comment by
JJ Ross
June 28th, 2008
at 2:57 pm

Nance brought this to my attention earlier today — everything I write and worry about, how my own brain is part of the challenge at the same time it’s all I’ve got to work with, to rise to that challenge. 🙂

“The neuroscience of false beliefs”


Comment by
Daryl Cobranchi
June 29th, 2008
at 7:14 pm

What is Daryl’s best interpretation of the constitution as one integrated document, to support what he wants without undermining himself on one stance, in service of another?

I believe it’s actually pretty straightforward. The 8th Amendment prohibits cruel & unusual punishments. 42 people were put to death in the US last year. That’s 42 too many, of course, but it still goes to the point that the punishment is extremely rare. And then Daryl could also point to international trends. 137 countries have effectively ended capital punishment. Only 60 still retain it.

So the constitutional prohibition and the trend around the world reinforce each other. For the other issues cited above, Daryl’s positions seem consistent with traditional readings of the Constitution. Where those conflict with international norms Daryl would point out that only international treaties after ratification by the Senate match the US Constitution as the highest law in the land. Absent a signed and ratified treaty, the SCOTUS should take into consideration international norms but only to the extent that they do not conflict with the written Constitution.


Comment by
JJ Ross
June 29th, 2008
at 9:21 pm

Good answer — Daryl must be thinking for himself. 😉


Comment by
Rob
June 30th, 2008
at 1:27 pm

1. Politicians follow two great commandments: “Thou shalt get elected” and “Thou shalt remain elected”. That usually means if there is something they can say to increase their chances, they’ll say it, even if it’s a big honkin’ lie. In that sense, McCain and Obama are similar. So don’t get all worked up over what a politician says – just try to figure out what they’ll actually do when they get power.

2. Regarding the death penalty, I’m fairly content with most state’s laws allowing me to protect myself and others with the lethal use of force. In UT and CO, for example, it’s legal to use lethal force to stop the rape of a child. So ok, our court system stinks – how do you feel about me killing the SOB before the cops show up?


Comment by
Daryl Cobranchi
June 30th, 2008
at 2:03 pm

how do you feel about me killing the SOB before the cops show up?

If it’s to literally stop him in the act, I guess I can see it. If you pull a gun, get him to stop, and then shoot him anyway, you ought to go to jail for a long, long time.


Comment by
JJ Ross
June 30th, 2008
at 3:27 pm

Not to mention that the man of the house can be both the gun-owner and the child molester. This is doubly cruel but unfortunately not nearly as unusual as capital punishment has become.