Saturday, June 28, 2008

Legislating Morality From the Bench

There are enough reasons to abhor the constitution of the present Supreme Court, which has time and again favored the business community when it has made its decisions. The instance of passing on the death penalty for child abuse has been one I could agree with. Leave it to the editorialistas at WaPo to ruin that.

Today, the Hiatt faction touts their approval of that decision, and cited a dissenting opinion. I am not kidding. As usual, the Hiatts want to see authoritarianism take over the helm in all the branches of government.

Even while concurring with the majority's decision, handed down Wednesday, to strike down the death penalty for child rapists, we join Justice Samuel A. Alito Jr.'s declaration in dissent that "the very worst child rapists -- predators who seek out and inflict serious physical and emotional injury on defenseless young children -- are the epitome of moral depravity."

It is just this kind of moral judgment substituted for the legal one that court action is supposed to provide, that causes so much injustice to be committed. It is no wonder that WaPo would feel more comfortable with self-righteousness than with judicial restraint, and/or judgment.

Avedon had a very telling comment at The SideShow yesterday, which she entered in a shorter version into the WaPo comment section this morning.

Avedon wrote:
"Child rape is an unforgivable offense, but not a capital crime."

One of the nice things about growing up is that you learn there are all sorts of things you can forgive. I forgave the people who sexually assaulted me in childhood a long time ago, and believe me, it feels a lot better than carrying all that hate around.

Of course, if they'd been executed, I'd have had too great a stake in believing it was justified to ever forgive them. Thank God that didn't happen.

It's too often society's indignation that pulls the strings in matters of law, when it should be rational solutions to the problems. Avedon has a rich life, and personal character, which she could have quite possibly never have reached if she'd been victimized by the atmosphere this Supreme Court promotes.

My comment at WaPo grew out of the Sideshow post yesterday as well as my own views, and was more informed because of the discourse:

/jocabel wrote:
That the argument presented in this editorial for the dissent is a condemnation on moral, not legal, grounds is a shame. Capital punishment as an institution assumes that a question of guilt has been concluded without the possibility of doubt. Over and again, the doubt is reinstituted, as convictions are overturned by DNA evidence. Child rape, as Justice Kennedy pointed out, often depends on evidence from children, often relatives of the accused. These sad facts must be taken into account. The moral repugnance of the crime makes the matter all that much more subject to pressures that counterbalance standards of proof. Judicial restraint is much better for our society, especially in dictating the behavior of others, than judicial moralizing. Our Supreme Court is dangerously dysfunctional when it comes to the strict interpretation of the existing constitution. Its majority inclines toward establishing guidelines of conduct for the public rather than determining legal redress for actual offenses.

When our highest court and major newspapers put indignation and morality in the place of the court's role as the refuge of justice, we are not receiving what we can regard as the Rule of Law. The authoritarianism that has been institutionalized by the occupied White House and its courtiers has taken away the kind of reasoning that is needed to render unprejudiced court decisions.

We badly need to return to three branches of government, separate and operating lawfully.

(This post also posted at )

The WaPo editors really, really like Scalito's dissent better. Another citation: Justice Alito, however, noted in his dissent that five of those states enacted such laws over the past few years, suggesting that the pendulum of public opinion is swinging the other way.

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