And a third decision you didn't mention:
2 weeks ago, the Court passed down another major decision, giving detainees at Gitmo the right to challenge their detentions in Federal Court, removing the suspension of habeas corpus on prisoners being held there. I thought it was a good and noble decision. Most conservatives probably won't see it that way, but as a conservative myself, I think its one of the most important decisions passed down in the last few years.

The Court has been on a roll recently. I agree with you on both counts. These narrow decisions have been interesting to watch, especially since relatively few cases that the Court takes go down 5-4. Anthony Kennedy is having the time of his life right now.

You're right, Andrew, that was a huge decision as well. And I'll bet Kennedy is eating steak dinners every night with double scoops of ice cream on top of his porter house. Courtesy of his colleagues, of course. ;-)

While I understand it, I know it's not ever going to happen. Part of the culture we as Americans carry is a gun culture. America started out as a frontier where "riding shotgun" meant something completely different than it does today. For better or worse, those are our roots.

Being a "gun culture" has nothing to do with it. Though it's a cliche, guns don't cause crime, people do. It's an inanimate object until a person, with the intent and the will to use it, picks it up. A crime committed with a gun can be committed with a club, a knife, a car, a bomb, poison, or anything else that human creativity can into a weapon. In fact, in societies where guns are sparse, they tend to have lopsided percentages of stabbings. In any case, crime rates remain relatively unaffected by gun control laws.

And in the hands of a sane and law-abiding citizens, guns have saved lives, prevented, and lowered crime rates, as aggregate statistics bare out. But that's beside the point. If you tell a person to dig a ditch, you don't take away the shovel. If a person has a right to defend themselves, you don't take away reasonable means of exercising that right.

All that said, you'll excuse me if I don't share the same sympathy for a "gunless utopia." Sin is the problem and rearranging the existential furniture doesn't change that. It's just another case of liberals believing that they can social engineer man toward perfection, without dealing with the messy parts.

Also, I think there is a deeper spiritual issue at work. Evil exacts a cost, often violent, whether it be a single person using a firearm or large scale war. And this is mirrored in the violence of the Cross. It is a stumbling block to those who would deny the reality of it and its echoes in creation.

It is, of course, only a "shadow of heavenly truths." The justified violence of man is, at best, an amputation, an abatement of evil. The Cross is a cure. It is only Christ who has brought life from death and renewal from destruction.

Think about it. The area with the highest murder rate in the country (almost 39/100,000) has a complete hand gun ban and has had for decades.

The three states with the lowest murder rates has the most lenient gun laws.

here is a photo of my sweetie practicing hand gun control (one of my favorite photos.)

Can't agree with this post, Andrew's comments, or being happy about the 'roll' that Justice Kennedy is on.

It doesn't matter what you feel was the 'right' result was in any of these cases. What matters is, did the justices interpret the Constitution properly and respect the right of citizens to make laws so long as they comply with it?

The only case of these three that did was the gun case decision in which Scalia logically and in detail spells out what the people almost assuredly meant when they passed the second amendment. Now if the people want to ban guns entirely, they have the perfect right to do so by simply repealing the second amendment. But it is the people that should do so, not 5 unelected dictators in robes.

The decision striking down the death penalty for the rape of a child was the Court at its worst. There clearly is nothing in the Constitution that prohibits the death penalty as it has been used for over 200 years while the Constitition was in force. There is also nothing in the Constitution that says that the death penalty must be confined to murder cases, as the death penalty has been used throughout US history for far lessor crimes. Now you or I may think the death penalty is a bad idea overall or should be confined to just murder cases, but there is clearly nothing in the Constitution that says that. Therefore, states and their citizens should keep the right to determine if or when it is appropriate. In this case, it was merely 5 judges who decided that they didn't like the death penalty for child rapists because it offended their particular sense of moral decency.

This is the same type of decision as Roe vs. Wade where judicial tryants also decided that despite almost two centuries of state laws prohibiting abortions, that such laws now offended their sense of personal freedom and henceforth wouldn't be allowed. And by the way, I won't document any of it here, but if you really want to be morally offended, go read the brutality of the child rape that this case originated from.

The habeas corpus case was equally bad with the Court hijacking what for over 200 years had been the right and responsiblity of Congress and the President to decide.

Just because you support the outcome of a case, does not mean that it is 'good' or 'right'. The lawfullness and manner in which it was decided is far more important than the outcome. In both the death penalty and habeas cases, the courts ignored 200+ years of clear precedent and took power that they never had previously, thereby diminishing the right of the people to self-government.

For me, preserving the right to self-government, for all its flaws, is far more important than allowing 5 unelected people (no matter whether I currently agree or disagree with them) to rule over us.

Evan,

Obviously I completely disagree with you. I think in all three of those cases the Court protected the Constitution.

Thanks for your comment though! :-)

I see your point Evan, and the Death Penalty case does leave a lot of room for debate, and it's a question I've wrestled with a bit on my own. Ultimately I think it was the right decision, but I do see your point.

I do have to disagree with you on the point you made about the habeas corpus case. While it is in the hands of the Congress and the President to decide, judicial review is probably the oldest precedent we have, going back to Marbury v. Madison. Part of the Court's duty is to decide the lawfulness of what the Congress and President decide. In Scalia's dissent, he says nothing of the Court's right to strike down the MCA or the DTA as inadequate substitutions for the writ. His beef was primarily that it would make the war harder to fight, and that it didn't honor the precedent set in Johnson v. Eisentrager, in which German soldiers, captured after VE-Day for continuing to fight, were denied the writ (and the suspension was upheld by the Court).

If I read you correctly, you seem to say that the Court had no business even reviewing the case. The decision itself may have been a bad one, and Scalia and Kennedy went at it, each making valid points, but I don't think they overreached in reviewing the case. On that point, I must respectfully disagree.

Forgive me if I read you wrong. You make good points, and I hope the debate continues on this thread, because what you said doesn't deserve to be ignored.

Until Evan responded, I chose not to. Did not want to offend. "Thinklings" somebody else's house. See ideas about disagreeing in Bill's list of things he has learned.

But possible to disagree graciously, advance discussion. I hope.

Evan right regarding priority of law, necessity of Supremes not creating but applying law. Only in gun case did they do this. And even there, not clearly. (2nd Amdmt, as other 9 of Bill of Rights, made to restrain Feds. Restraint via armed citizens.)

I disapprove of continuing to keep war prisoners indefinitely. Bible allows for custody only until decision made. (Thus American prison system defies God.) Pres and military need find some solution other than cages. But Supremes err in writing law.

I disagree with manner in which death penalty handled in courts. Eg, lying testimony in capital case should provide sufficient evidence for the liar to be executed. Testifiers along with jury should serve as executioners. So says Guidebook. I also buy into dissatisfaction with eg, racial skewing. But: 1) Supremes scorned 2 centuries of law and created that which did not exist. 2) Violated Bible's law, which clearly not merely allows but specifies death for some crimes of which situation at issue was case in point. (Some Thinklings not seeing this latter leaves me more concerned than their not seeing former.)

Bird,

I wonder how you see the child rape case as 'protecting the Constitution'?

For the first 200+ years of US history, numerous states had laws that imposed the death penalty on rapists, and numerous instances of capital punishment for rape were carried out.

Were all those impositions of a death sentence unconstitutional?

If not, how did words that meant one thing for over 200 years, just now (without any change in the words) come to mean the opposite of what they used to mean?

If words in the US Constitition can radically change meaning overnight, what constititution is being protected?

Violated Bible's law, which clearly not merely allows but specifies death for some crimes of which situation at issue was case in point. (Some Thinklings not seeing this latter leaves me more concerned than their not seeing former.)

The Bible also allows death by burning for prostitution. Prostitution is illegal in this country. Would it follow that if a state passed a law allowing the death penalty for prostitutes, the Supreme Court wouldn't be justified in striking it down as cruel and unusual punishment? It's wholly compatible with scripture. I see your reasoning, but using the Bible as a justification puts things on a very slippery slope.

Pres and military need find some solution other than cages. But Supremes err in writing law.

What the Supreme Court did here was to say that the suspension of habeas corpus in this case was an unlawful suspension and that the provisions made in the Military Commissions Act and the Detainee Treatment Act were insufficient substitutes. The Supreme Court has every right to review the actions of the Executive and the Legislature. They wrote no law, they did not white out the Suspension Clause, they simply said that in this case, it is unlawful.

Evan and Roy, neither of you spent very much time elaborating on this case in your comments, and both of you seemed to say simply that the Supreme Court simply acted outside of its power. Perhaps one or both of you could shed some light on why you feel this way? It would help me better understand your points.

Thanks.

Evan, I'll first admit outright that I'm a constitutional law dilettante. I do enjoy con law, though, and I like to read about constitutional decisions when time permits.

You've raised some valid points. But I'd say from my perspective it's patently obvious that the Supremes were, in these cases, protecting the Constitution by correctly interpreting it.

While there are sporadic instances of states using the death penalty for anything other than murder in the past 200 years, those instances are few and far between. From what I can tell death penalty judgements have all been murder-specific since 1964. And right now everyone one death row in the U.S. is on death row for murder -- that's it.

Just because states have "done it in the past," doesn't mean the precedent (as thin and sporadic as it is) is constitutional.

So it's not the "words" that change overnight, it's the application of those words and whether or not previous application is indeed constitutional. It's not a perfect system, but that's the way our government is set up, and personally I like it that way.

Andrew,

It's pretty obvious that you are far more learned in the habeas corpus law area than I am. So this is probably like me bringing a knife to a gun fight.

However, when Scalia, Thomas, Alito, and Roberts all dissent from an opinion, I view that as pretty strong evidence that the 4 liberals plus Kennedy are not merely 'protecting the Constitution'. I'm sure you could probably shoot down many of my arguments about the case, but can you shoot down Scalia and Roberts? Furthermore, I do think Roberts' dissent echoes what I think is most important, moreso than Scalia's.

No one has a great idea what to do with suspected Al Qaeda or other terrorists. If they were US citizens, they would have all the rights we give to citizens who happen to be charged with a crime, including habeas corpus, unless such rights were otherwise suspended.

But these guys are not US citizens, nor are they soliders fighting in an organized military which is what the Geneva accords addresses in regards to POW's. They are in a nebulous third category, and there is no clear historical precedent or law for dealing with them (although I have read that the closest parallel is 17th and 18th century pirates). But regardless, we never before in US history have given habeas corpus rights to non-US citizens abroad, whether in a war or otherwise.

The logical thing would be to send them back to their home country for trial. However, this is often problematic since if they come from nations hostile to the US they likely will simply be released and allowed to repeat terrorist efforts. Othertimes, their home country may not accept them back at all. And then sometimes they have a home country that might mistreat or torture them (which leads to all the complaints about rendition).

So what to do with them? The Congress and the President, as you point out, set up the Military Commissions Act and the Detainee Treatment Act to give them a process to challenge their detention. That, in my opinion, was the proper thing to do when confronted with the situation, and the proper branches to do it.

But as Roberts points out (in agreeing that Scalia is also right about the Court being in error in extending habeas rights to aliens abroad), the court merely ends up submitting its review processes (still undefined) for that of Congress and the Presidents (which were defined).

In essence, as Roberts says, this is not really about the detainess at all, but about having the courts take control of federal policy regarding enemy combatants.

Frankly, I don't think that is Constitutional nor a good idea. You (and some members of the courts) may not like the wars or how they are prosecuted, but the way to change that is to vote for a new President and Congress. Not once again having 5 unelected judges power grab because they don't like the decisions the elected branches made.

Bird,

As expected, we'll have to agree to disagree.

But I think your comment that it's only the 'application of the words', wouldn't even be accepted by the liberals that decided this case.

They don't claim that capital punishment for rape was never constitutional. The historical record clearly proves that that is not true. Instead they claim that it now is no longer constitutional because of (get this) "evolving standards of decency that mark the progress of a maturing society".

That is what you really are supporting by supporting the results in this case. That plain words in the 8th Amendment change meaning because of 'evolving standards of decency", that the Supreme Court gets to solely determine what they feel these "evolving standards of decency" are, and then enshrine them into law by saying the 'cruel and unusual' now means what they just decided.

Frankly, I don't think our society is either evolving, maturing, progressing, nor is it often decent. And I certainly don't think five unelected justices on a court (who all just happen to also support the right to murder unborn children) should be able to say what is 'decent'.

Call me crazy, but I think the citizens of this country should be able to make those determinations and laws for itself.

In fact, in societies where guns are sparse, they tend to have lopsided percentages of stabbings. In any case, crime rates remain relatively unaffected by gun control laws.

I have to disagree with this, being someone that has studied a bit of Middle Eastern and Indian societies - both of which ban buns and have a much lower percentage of stabbings. They also have no children accidentally shooting each other. I don't care about having a gunless society, but you can't simply say that banning guns solves nothing. It has in many cases around the world. And in other countries it hasn't. You also can't over look the fact that many more people survive stabbings than they do shootings. Saying "guns don't kill people, people kill people" is way over simplifying things. Your average person actually does not have the skill or physical strength to kill another human being with a knife or club. Or the correct knowledge to poison someone. Your just not comparing apples with apples when you bring those in to the discussion, because guns make it so much easier to kill someone else. Anyone with access to a gun, with the physical ability to pick it up and squeeze the trigger - can kill with it. Not the same with a knife or club.

Having said that, I do agree with Bird on this. Just don't say that I am happy with the way our society is, or that I even agree that allowing guns actually really solves anything. We're just stuck with the lesser of two evils.

Heh - that should be "ban guns", not "ban buns". :) If they ban bread in this country - I'll start a revolution myself!

But regardless, we never before in US history have given habeas corpus rights to non-US citizens abroad, whether in a war or otherwise.

The only thing I would say to this is that the U.S. is technically sovereign over Gitmo. But the case could be argued either way.


Frankly, I don't think that is Constitutional nor a good idea. You (and some members of the courts) may not like the wars or how they are prosecuted, but the way to change that is to vote for a new President and Congress. Not once again having 5 unelected judges power grab because they don't like the decisions the elected branches made.

You've argued your case well. I hope I haven't come across as anti-war. Though many mistakes have been made by the President and those around him (as is the case the case in all wars), I think they have done what they believe is right, and that goes a long way in my book.

This war is at the most fundamental level a war of ideology. If Democracy is to be preserved across the world, it must first be preserved here at home, even in the most extraordinary circumstances. It's what makes these wars worth fighting.

Thanks for your time.

Bothers that Andrew suggests slippery slope to appeal to Bible. (While, btw, Bible relates how some persons intended to burn prostitute, where does God command such? On contrary, I would oppose such a law because it violates what God does command which would apply equally to both prostitute and john.)

Putting that paragraph slightly differently (and repeating the central idea of my original post), of course I believe in the rape case that the Supremes acted outside their power: they attempted to overrule God. (Since it bears repeating, I will.) This is the same bunch that legalizes killing unborn. What clearer evidence does one need of a system with an internal error, an accepted false premise, a division by zero, from which anything might come? Talk about slippery slope....

As to Gitmo and hab corp: I think Evan has said what I would to respond to Andrew.

"Bothers that Andrew suggests slippery slope to appeal to Bible. "

I won't speak for Andrew here, but I think his point is that if we use the Bible as a guide to the crimes that deserve capital punishment, we will need to widen our scope considerably. Andrew was referring to Leviticus 21:9, which gives burning as the penalty for prostitution. There are plenty of other offenses in the OT that warranted death under the mosaic law, such as adultery, proselytizing others away from the faith, occult practices, cursing your parents (!), perjury, blasphemy, etc.

I am not equipped to argue through all the nuances to this, in particular why Bible-believing Christians and societies such as ours which were founded by men with a deep respect for the Christian scriptures can depart in good faith from the more stringent penalties of the OT. But a lot of people a lot smarter than me have worked through this throughout history. In addition, there are numerous Christians who believe that, in light of the NT, capital punishment is no longer admissible.

I'm not read to debate that either :-)

I agee, Bill, that not only do differences exist among godly folks re understanding how the general equity of God's OT revelation works out. I further insist that understanding will involve a lot of honest effort exerted in humble submission to one another. And, be it known to all, I make no claim to having final answers. (For eg, how does the fact that the command of Lev 21:9 involves the daughter of a priest effect our understanding of any present implications? At minimum should we not realize far more than prostitution is in view? In short, rather than chuckling and saying "gotcha" since I could not off the top of my head recall more then the case of Tamar and should have looked before I posted, admit from your position that I'm calling for taking the Bible seriously. That demands sweat.)

Admitting to the serious sweat work involved in thinking thru what the Bible says (thus declaring our intention to submit to Jesus as Lord) differs from starting with declaring that direction no more than a slippery slope.

I respect the decision not to debate a difficult, complex topic. But from my perspective (and the reason for my posting at all), most of the debate hinges on the choice whether or not to take the Bible seriously. Thus rather than gasping at how terrible God was (is) to have demanded death for sin z, as if z, although sin, were very slight, one might instead decide to 1) reevaluate one's own understanding of the awfulness of z 2) investigate the circumstances surrounding the citation of z that made it Z(!) instead of merely z, 3) think thru how the Cross and Pentecost may have modified penalties (I think I can show something along this line )rather than just insisting that the penalties just could not, no way, be the same.

"In short, rather than chuckling and saying "gotcha" since I could not off the top of my head recall more then the case of Tamar and should have looked before I posted, admit from your position that I'm calling for taking the Bible seriously. That demands sweat."

?

Roy, if you heard a "gotcha" anywhere in my comment, it's only because I'm a crappy writer. I had no desire for or intention to "get" anyone with my comment.

This is a very difficult subject.

I believe in taking the Bible very seriously.

And, I'm leaving this thread.

Now I understand the dream... a slasher film.