Tuesday, March 01, 2005

Checking in

Working on a brief in the computer lab. It's lots of fun trying to do legal analysis when cold medicine makes you feel like your head is a helium balloon on a string considerably longer than your neck.

I wanted to weigh in on Roper, but I think trying to pick through the opinion right now might be beyond me. Let me just say that I strongly oppose the death penalty (check my May `04 archives, I believe), but that I am a little uncomfortable with the reasoning as I have seen it summarized in this case. It seems that Kennedy and the majority have seized on a relatively small movement in public consensus and used it as the basis for a sweeping change in 8th Amendment interpretation. While I agree with the result, I am uncomfortable with judges claiming the authority to string together what may be statistically insignificant movements in opinion to overrule legislative judgment on constitutional grounds. It smacks of ad hoc reasoning, which could just as easily be used by those with whom I disagree.

QUICK UPDATE: Here is the post where I took economist Steven Landsburg to task for his assumption that an execution deters 10 murders. In June 2004, I reprinted an e-mail conversation that I had with Mr. Landsburg about my first post (with his permission, of course). I think it's worth reading.


Blogger Matthew said...

Yeah, I agreed with the SCOTUS majority ruling, but found the reasoning to be a bit wonky.

The less said about the other four (exception being O'Connor), the better.

8:22 AM  
Blogger Matthew said...

I hear that. I am, as a liberal, strongly attached to the idea of a living constitution, even if I am a bit more formalist than some of my counterparts. The idea that we should interpret Constitutional law based on the political realities of 1787 alone seems bogus to me. Are those realities a factor, particularly as the pertain to the structural aspects of the Federal government? Absolutely. Are they a deciding factor in cases relating to individual rights and liberties? Not so much, to my mind.

9:01 AM  

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