Scalia, Breyer bandy about how to decide cases

[usregimechange]

They particularly clashed on the question of capital punishment.

Scalia argued that while there's room for debate about whether the death penalty is a "good idea or a bad idea," it is not cruel and unusual punishment.

"There's not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted - the cruel and unusual punishments clause - it was the only punishment for a felony. It was the definition of a felony. It's why we have Western movies because horse thieving was a felony."

Breyer said 200 years ago, people thought flogging at a whipping post was not cruel and unusual.

"And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century," he said. "If we had a case like that today I'd like to see how you'd vote."

http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_OPPOSING_JUSTICES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT


Scalia was way out of his league.

[gratuitous]

1. Breyer argues for the rule of law

Scalia just rules as his corporate overlords prescribe.

[pinto]

2. Way out of his league, I guess, but also pretty alarming since he's *in* the league.

Scalia - "There's not an ounceworth of room for debate" (wtf is the Supreme Court for, Justice Scalia? Watching Westerns?)

Breyer (on flogging) - "If we had a case like that today I'd like to see how you'd vote." (touche)

[soryang]

3. Isn't the 8th Amendment standard an evolving standard?

Or are we all condemned to live in the 18th Century forever?

[usregimechange]

4. How do we decide if electronic searches are unreasonable using an 18th Cen standard?

[pinto]

5. Yeah, it seems a growing divide. The Constitution, set in stone / the Constitution, living, evolving

Oddly enough, many Tea Partyers want various Constitutional amendments while at the same time they want a "return" to the Founding Fathers' document.

The disconnect gives me vertigo at times.

Then I move on and turn off the TV. :hi:

[Igel]

6. Interesting.

Breyer stands for original intent. What the legislature "thought" (as if legislatures think, and as if documents can't be inserted into the Congressional record after the vote to "spin" what the legislature is retroactively considered to have thought).

Scalia for the dictatorship of the text. Presumably using contemporary (with the text's production) lexicons.

I'd have put them on the reverse sides, given what they've said elsewhere.

[Mz Pip]

7. I don't know

I suspect people 200 years ago thought flogging to death was cruel. That's why they did it. IT was cruel and it fit with the times. Plenty of people today are into the whole cruelty thing with punishment. What happened then may not have been unusual but it was cruel.

We really haven't come that far in 10,000 years. We've become more sophisticated and technological with our cruelty, but it is still cruelty.