Court Teeters Both Ways
by Candice Watters on 07/03/2008 at 10:00 AM
"The court was teetering on the brink in this term. Voters should keep that firmly in mind when they go to the polls in November."
I couldn't agree more. In fact that's the very argument I was just making Tuesday night with a friend who is leaning toward the presidential candidate I'm working against.
Funny thing is, I rarely, if ever, agree with the New York Times, where that quote appeared.
But alas, that's where my agreement ends. Where I praise the Supreme Court's 5-4 decisions to uphold the Second Amendment rights of citizens to keep and bear arms, to allow states to require voters to present some proof of who they are before voting, and to allow violent criminals convicted of the death penalty to be put to death by lethal injection, the Times chides it.
Where I bemoan the Court's 5-4 decisions to award the rights of U.S. citizens to enemy combatants and to deny the death penalty as an allowable punishment for those monsters convicted of raping a child, they praise them as "undeniable good news."
Alas, both ends of the political spectrum know that who occupies the White House starting in 2009 will most-assuredly have much influence over which way the court leans.
The NYT worries that "One more conservative appointment would shift the balance to the far-right bloc." Conversely, millions of conservatives worry that another liberal appointment would do the same in the other direction, shifting the court to the far-left bloc.
The stakes, indeed, are high.
1. Dan said the following at 10:34 AM on Jul 3
I believe this is so true. The NYT from what I have read is so against the things that I am thinking at the time I read the newspaper. I agree with your opinions and definitely the November election will be important. Thank you for writing this.
2. obewan said the following at 10:52 AM on Jul 3
Isn't there some kind of congressional oversight/approval required? It might not make a lot of difference if opposite parties are in office. It would just become a tug of war with both parties trying to have their interests served.
Besides, with a large number of people threatening to defect to a third party candidate that will have no chance of winning, this fall is anybodies election. I may end up just not voting once again out of frustration.
3. Holly (single, non-parent one) said the following at 10:59 AM on Jul 3
Candace, would you address the one argument I've heard against the death penalty for child rapists that seems legitimate? I've had two dozen conversations about this since the decision happened, and while I am very much in favor of putting the monsters to death (preferably by just putting them in the general population of a prison) the argument that child rapists will simply start murdering, instead of just raping, their victims seems at least semi-plausible.
4. Chris said the following at 11:17 AM on Jul 3
Candace writes:
The NYT worries that "One more conservative appointment would shift the balance to the far-right bloc." Conversely, millions of conservatives worry that another liberal appointment would do the same in the other direction, shifting the court to the far-left bloc.
Given that "conservatives" seemed to be less and less interested in the whole Constitution (why is the 2nd amendment so sacrosanct while the 4th is totally trashed?) and in the separation of powers, the choice for me is easy.
5. John D. said the following at 11:21 AM on Jul 3
"Conservative" and "liberal" are not particularly helpful terms when discussing judicial rulings.
Consider, for example, U.S. v. Santos and Cuellar v. U.S., two cases decided by the Supreme Court in June. In both cases, the Court, carefully interpreting the language of federal statutes as strict constructionist judges are supposed to do, overturned the convictions of individuals accused of money laundering.
One opinion was by Justice Thomas, the other by Justice Scalia. Two originalist, Republican-appointed judges, ruling in favor of criminals. Is that a "conservative" ruling?
Incidentally, the Court's decision in Boumediene v. Bush was absolutely the right call. The Court held that the military base at Guantanamo Bay is de facto U.S. territory, and that detainees held there indefinitely have the right to file habeas corpus petitions in federal court.
It's important to remember that no one, dangerous or otherwise, was freed by that decision. The detainees may file habeas petitions, but that does not mean that a court is obligated to grant their petitions and order the prisoners released.
(Indeed, I am sure that Charles Manson and Sirhan Sirhan filed habeas petitions, too. They are still behind bars. A court is not going to release someone who is truly a danger to society, as at least some of the Gitmo detainees surely are.)
The alternative would have been to allow the government to hold individuals forever, without necessarily charging them or giving them a fair hearing. That would not have been the American way. Due process is one of the American values that we are allegedly fighting to protect.
6. JJ said the following at 12:34 PM on Jul 3
Court teetering both ways? They must be doing something right imo. I'll take a fair and balanced court over the other options.
7. mindlab said the following at 1:02 PM on Jul 3
Re the post: Candice,
The court did not really uphold the second amendment; they declared that citizens have a 'reasonable right' to keep arms for personal defense in their homes. This is a reduction from what the 2nd amendment says. If you read the amendment, citizens have a right to bear arms for 'the security of a free state', in other words, to use arms to secure their freedom, and to reform the state by force if necessary.The court only got this half right.
3, Holly:
My argument in favor of the death penalty for almost all rapists does not depend on the likelihood that they will kill in the future. I believe that the commission of any crime voids some appropriate subset of the perpetrator's rights; if you steal, you void your own right to some property, if you murder, you void your own right to life. I believe that rape voids the perpetrator right to life, and that rapists should be executed at the victim's option. Although I do not believe that OT law is binding 'anno domini', I do cite the Mosaic penalty for rape as support for this position.
8. mary kate said the following at 1:06 PM on Jul 3
you're pro-death penalty, candice? interesting.
9. Amir Larijani said the following at 1:45 PM on Jul 3
::::planting tongue in cheek:::::
Mary Kate: The death penalty is an excellent idea.
A few years ago, at an AWANA conference, we had a breakout session about disciplining difficult kids.
The instructor stressed--assuming we might have a few ignorant folks in our midst--that corporal punishment is not acceptable.
At that instant, I slipped with a question: What about capital punishment?
I had the instructor in stitches.
::::removing tongue from cheek::::
10. Tom said the following at 1:56 PM on Jul 3
If you look at the court demographics, it's very likely the court will go conservative because the only "old" person on the right block is Scalia, while the left block is ALL old people with Stevens very close to retiring. Roberts, Thomas, and Alito are all 60 or younger.
That said, the only judge who might retire in the next term is Stevens, a judge on the liberal block. A liberal judge replacing him does nothing to the balance (and by balance, I mean whatever Kennedy feels like). The Supreme Court at this point is really the Anthony Kennedy court since he decides effectively every 5-4 decision, including all the ones you mentioned. But a conservative judge replacing Stevens would mean the most conservative court in many generations, and thus I think Stevens would try to hold out through McCain's first term if he were to win, while retiring if Obama wins, to maintain the current balance.
11. Jo said the following at 2:27 PM on Jul 3
Candice (OP) and Holly (#3):
Child rapists = not monsters.
All humans = people.
12. Candice Watters said the following at 2:45 PM on Jul 3
Jo:
mon-ster, noun, 1b: one who deviates from normal or acceptable behavior or character
2: a threatening force
3: an inhumanely cruel or wicked person
13. Adam said the following at 3:13 PM on Jul 3
My problem is that I believe in drastically different standards for elected officials vs. justices. Who we vote for should be based on what we believe and how well that aligns with what they believe.
Judges should not be chosen based on personal political views, but rather how well they are able to set that aside and apply the law. If it's done right, it won't line up either on the conservative or liberal side.
What's messed up is that there are basically litmus tests for judges. A conservative doesn't care about the legality or constitutionality of abortion - they want a judge who will rule based on pro-life ideas regardless of what the law supports.
Liberals will do the exact same thing, except their target issue might be in favor of civil unions. Once again, it is not about being faithful to the law or the constitution, but rather lining up with political ideals.
The judicial branch is meant to be separate from the legislative and executive branches. Supreme Court Justices should not be just another pretentious pawn of political power.
14. Julia H said the following at 3:18 PM on Jul 3
Re. comment 11:
All people may be human and prone to error, but there are crimes that cannot be allowed to take place.
Child rapists have been shown to almost always reoffend if given the opportunity and often the level of violence escalates. I do not know of any pedophile who has been successfully rehabilitated. The death penalty ensures that these monsters (yes I said that) will never be able to hurt, violate and destroy the life of an innocent child again.
My guess is that you have never been exposed to the incredibly horrible effects of rape or child abuse. Let me tell you, from experience, it is not something that is an unfortunate event. Children do not just bounce back. Recovery takes a lifetime. The criminal has effectively taken the life of that child in many ways, forever scarring them and handicapping them emotionally and possibly physically. When you willingly take the life of an innocent, you forfeit the right to breathe the same air or inhabit the same earth as your victim. May they burn in hell like they deserve. Thank God for his retribution.
15. farmer Tom said the following at 3:26 PM on Jul 3
11. Jo
Child rapists = not monsters?
Look, you can believe that child rapists are all warm and cuddly like a new puppy if you want, you have the right, but I stand with Jesus on this one, He had a very simple message for this type of monster,
Matthew 18,
4Whosoever therefore shall humble himself as this little child, the same is greatest in the kingdom of heaven.
5And whoso shall receive one such little child in my name receiveth me.
6But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.
7Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!
Jesus was very much pro death penalty, and I'm thinking dying on this earth may be the best thing to happen to a child rapist, eternal punishment for those type of monsters is very harsh.
16. Jo said the following at 4:18 PM on Jul 3
Wow, okay. Opened a can worms there didn't I...
Firstly: I gave no opinion on whether child rapists should be executed or not.
Secondly, Julia H: it really depends what you mean by 'exposed'. I work with people who've been abused, and yes I'm quite aware of the horrific nature of the crimes we're talking about. But yes, I understand that it's a less emotive topic for me than it would be for someone more directly affected. I'm not disregarding the extent of the evil and the damage it can cause. It's sickening and horrible. But I stand by my comment.
Thirdly, farmer Tom: "child rapists are all warm and cuddly like a new puppy" - yes, that's what I said. *rolls eyes*
Fourthly, Candice: Those are secondary meanings, which in my opinion are acknowledged only because we've misused the word for so long. Regardless, it's emotive and implies a completely inhuman figure devoid of goodness, which regardless of someone's evil actions, is simply not the case.
I guess I just wonder where someone struggling with an unwanted attraction to children would turn to for help and compassion. I think in a public, permanent, searchable medium like this, you just have to be extra careful to be accurate and - even on such a painful subject - objective.
Anyway, it was just a small point.
*Forces lid back on can of worms...*
17. Andy said the following at 4:20 PM on Jul 3
"Where I bemoan the Court's 5-4 decisions to award the rights of U.S. citizens to enemy combatants"
Are you saying that it is not our right as human beings to have a fair trial?
18. Jethro said the following at 4:27 PM on Jul 3
Can someone please tell me where in scripture it says that judges should be 'strict constructionists'?
19. Adam said the following at 4:41 PM on Jul 3
Wow. A sin so harsh, so bad, so cruel that it actually takes away their humanity huh?
So child rape is so bad that the blood of Jesus could not possibly cover it?
20. Adam said the following at 4:46 PM on Jul 3
(#15 farmer Ted) Jesus only seemed to directly comment on one death penalty case. It was the woman caught in adultery. He said, "Let he who is without sin cast the first stone."
If Jesus is unabashedly pro death penalty, then why didn't he cast that first stone?
21. Holly (single, non-parent one) said the following at 6:23 PM on Jul 3
mindlab: I am referring to the pragmatic argument that a death penalty for child rape will cause perpetrators to elect to kill their victims, thus not leaving a witness alive. If the worst punishment they can receive for murdering the child is death, and the worst punishment for raping the child is death, then why would they leave the child alive to potentially testify? That is an argument I am having a hard time refuting, though I maintain that simple sentencing child rapists to life in the general population of a prison amounts to a de facto death sentence, and a more just one.
jo: calling someone a "human being" affords a basic level of respect. When you have gone without sleep for four nights in a row because you were sitting up with a child having flashbacks, I will cede your right to give child rapists that level of respect. Ever since I had the aforementioned experience, I choose not to.
22. Adrian Jackson said the following at 8:20 PM on Jul 3
As a non-American, I tend to agree with the Times article.
The conservative American views on gun rights, lethal injections, etc.. seem appallingly inhumane to me.
I think American's need to wake up and realise that gun rights and the death penalty are a thing of the past and tarnish their reputation immensely as a just and democratic society.
23. Chris said the following at 8:28 PM on Jul 3
Julia H writes:
The death penalty ensures that these monsters (yes I said that) will never be able to hurt, violate and destroy the life of an innocent child again.
So does life imprisonment without parole in a maximum security prison. ....
And now some honest questions: At what age do we stop? In other words, do we put to death a rapist who rapes a 2 year old but not one who rapes a 17 year old? Is the bright line the 18th birthday? If not, then what age? What if the rapist is 18 and the victim 17 and it was consensual sex (e.g., statutory rape)? How about 15 and 14? 14 and 13? Where's the line? Why not put all rapists to death? After all, why is the sexual violation of a child different from the sexual violation of a 90 year old woman in a wheel chair? I'd argue both acts are of equal depravity.......
If we add child rape to the list, why not child abuse? We've all seen the stories about adults who abuse their children for years in a non-sexual manner. Why should any one form of child abuse receive special treatment or consideration when all of it violates a child in one way or another?
Putting child rapists to death is not about justice. It's about vengeance. It's about making people sleep better at night because we've "dealt with" such people "once and for all."
24. Chris said the following at 8:31 PM on Jul 3
One more thing:
Julia writes:
When you willingly take the life of an innocent, you forfeit the right to breathe the same air or inhabit the same earth as your victim. May they burn in hell like they deserve. Thank God for his retribution.
And this is better than life in prison without parole where the rapist may have the opportunity to be exposed to the gospel through a prison ministry and repent for his sins?
Unlikely, yes, but still possible.
25. Alex C. said the following at 10:28 PM on Jul 3
what dictionary did you look in where "1b: one who deviates from normal or acceptable behavior or character" was the first definition for monster?
I'd like a little more detail on the issue about enemy combatants being awarded rights. I'm a little confused about the problem there.
26. Geoff Youngs said the following at 3:45 AM on Jul 4
Candice - could you possibly explain what is so wrong with awarding the rights of US Citizens to "enemy combatants"?
Do you have any theological basis for declaring Americans worthy of protection and fair treatment in a way that foreigners aren't? (Claiming that America is the new/true Israel doesn't work here - the only credible candidates for that are Israel or Jesus, depending on your eschatological orientation).
I can see how such a position is compatible with right wing politics - I just fail to see how it is a viable position for a Christian.
27. Schwäbisch Kiwi said the following at 5:37 AM on Jul 4
Candice, I hardly think that the US court's decision to give the right to trial (habeas corpus) to so-called enemy combatants is the same thing as giving them "the rights of U.S. citizens". Those guys being abused and tortured in Gitmo certainly don't have the same rights as any US citizen, even after this court ruling - they don't have the right to vote, or bear arms, or even the freedom to go where they want within the US, or any of the other rights and freedoms you Americans take for granted. The only thing your court has given them is the right to a (hopefuilly fair) trial. And contrary to what you may think, that is NOT a "U.S. citizen" right - rather, that is a human right.
Funny that even the Nazi leaders were all given the right to trial (at Nürnberg). Funny that the Nazis themselves treated their military POWs far more humanely and reasonably than America is treating those prisoners at Gitmo.
In general I support what America and her allies have together done in Iraq, and I'm in favour of them staying there till the job is done. (FWIW I also support the death penalty for rapists). But I think Uncle George, who claims to be a Christian, has a lot to answer to before God for his inhumane and unChristian treatment of his prisoners. Two wrongs NEVER make a right. No exceptions.
28. Pauline said the following at 10:05 AM on Jul 4
I feel no one but God has the right to take anyone's life.
With you and me (the government) killing someone, we are forever removing the chance for that person to accept Jesus Christ. I don't want that responsibility on my hands.
It is much easier to choose to kill someone than to forgive them.
29. Hannah C. said the following at 10:33 AM on Jul 4
I really don't see how the judges can say the death penalty for a child rapist doesn't fit the crime. Those children will have to deal with the extremely scarring effects of that for the rest of their lives. What if the rapist in question has more than one victim?
I'm barely an adult myself, and I have many younger siblings. I don't think the death penalty should be the automatic punishment for child rapists, but it should definitely be considered, especially in the cases of multiple offenses.
The alternative would be long jail sentences...preferably without parole.
30. mary kate said the following at 3:22 PM on Jul 4
oh man. this probably isn't the place, but 'jesus was very much pro death penalty'???? maybe i'm being extremist, but there's that whole 'thou shalt not kill' thing.
as for child rapists being monsters, sure, by definition of the word monster, yes they are. but what right have we to give up on someone and end his or her life? it seems to me like that is never our call. there's a difference between punishment and death.
our prison system is deeply flawed. of course child rapists aren't getting rehabilitated... that's not going to happen in a place where rape, drugs, and physical violence are commonplace.
ok. i could keep going but i won't. i probably shouldn't have gone here in the first place. :)
31. Laura said the following at 10:48 PM on Jul 4
Candice, I'm curious as to why you think it's a bad thing that those arrested and held without charges at Guantanamo Bay ought not to have the right to have charges filed against them and to have their cases heard in a regular court of law with access to lawyers? Our Constitution rests on a view of individual human dignity that says that we all have natural rights given to us by God by virtue of the fact that we're alive. What does it hurt to ensure habeas corpus rights to those individuals in American custody who were also created in the imago Dei? If they've truly done heinous things, there should be sufficient evidence to convict and imprison them for the rest of their lives. The fact that the U.S. government has already let more than half of the prisoners there go (and that another 1/5 or so are eligible for release but have nowhere safe to go) suggests that there's a serious need for a fair process of justice - and the CSRT's and other military tribunals (where defendants don't get access to civilian lawyers, and where even their military lawyers can't look at the evidence against them).
32. Becky said the following at 11:34 AM on Jul 5
If I remember correctly, the biggest issue with the death penalty in child rape cases was that the wrongful conviction rate was much higher than in adult rape (because children are more easily emotionally overwhelmed and influenced, and more likely to change their stories)
And regardless of one's views *on* the death penalty, I think most people are in favor of decreasing the odds of executing the wrong person....
33. L said the following at 4:48 PM on Jul 6
Julia--
Sorry, but I've been through that. And I've forgiven the rapist--putting him to death will not change the past.
I'm of the firm belief that one should avoid killing another human being--however monstrous he may be--whenever feasible. If there is a way of protecting society WITHOUT using the death penalty, we shouldn't use it.
Protect children by sentencing child rapists to life in prison without parole, not by putting them to death, and let God sort out the afterlife of us all.
34. Richard said the following at 8:32 PM on Jul 6
Actually, no where in the New Testament does Jesus ever say he was for or against the death penalty.
I am sorry, but you have taken the above Mathew 18 verse completely out of context. Jesus in this chapter was talking about becoming humble like a child, not about punishments for pedophiles.
Back on topic, I don't believe judges should be chosen because of thier political views. They should be fair and impartial, dedicated only to the principles of the Constitution and to respect for human life, and not to any man made political ideology.
Also, there is overwhelming evidence that most child molestors can be treated to the point where they can function in society without reoffending. Studies in Germany, Canada, and many other nations have demonstrated that chemical castration, coupled with intensive therapy, can rehabilitate well over 90% of child molesters. That is a scientific fact, not an opinion.
35. John P. said the following at 2:36 AM on Jul 7
What is wrong, exactly, with granting habeus corpus to Guantanamo detainees? Is it reasonable to detain someone indefinitely without trial, simply because he has been classified as an 'enemy combatant'?
This is especially galling because out of roughly 83,000 detainees captured since extraordinary rendition began - none of whom have stood trial - only about 7 percent were captured by US forces. The vast remainder were turned in by their own countrymen, of whom many were warlords looking to collect a bounty. If Joe Schmoe in rural Afghanistan doesn't like his neighbour down the road and needs to make a little cash, he can just shout 'terrorist'; the neighbour will spend an interminable amount of time in an offshore American prison, subjected to who knows what, and Joe gets a handsome fee.
This is not a practice that anyone should be supporting, regardless of their politics.
36. Late Night Blogger in HI said the following at 5:40 AM on Jul 7
Hey all:
I'm not sure I understand how Matthew 18 proves that Jesus is pro-death penalty, especially given His strong words about forgiveness in other passages of the NT.
I am pro-life (in terms of abortion and assisted suicide/euthanasia) and, for the same reasons (the sanctity of life & the idea of our submission to God's control of life and death), I am also anti-death penalty. I don't see how a pro-death penalty position is consistent with a pro-life ethic that I have seen is so highly regarded by Boundless staff and bloggers (and that I wholeheartedly agree with).
To me, we can either believe life is God's to give and take or not. We argue against abortion because we value the life of a baby. I may not value the life of a rapist, but, in my study of the Word, God makes Himself clear in Scripture that He is a God of redemption and reconciliation and that NO SIN is beyond forgiveness for Him (though blaspheming the Holy Spirit is hotly debated as a possible 'unforgivable sin; based on Mark passages). So how can I (or the state) decide that anyone's life is 'invaluable' or 'beyond redemption'? I can understand this position from a secular point of view/line of reasoning, but I cannot (even if I'd like it to, as I ABHOR rape and all crimes of violence against women and children) make it dovetail with my understanding of Jesus' authority over life and death & His forgiveness extended even to the criminals on the cross beside Him (who were apparently worth saving before they died).
I fully agree that Matthew 18 serves a a DIRE warning to any of those who would cause a child to stumble (includes many things, not just rape...could be false teaching, exploitation, etc.). I just don't see how it can be used to Scripturally justify the death penalty or to assert that Jesus is pro-death penalty.
Farmer Tom, I have read and appreciated your opinion and the comments you've posted at various times on this blog; it'd help me to know your reasoning behind that statement about Matthew 18. The above paragraphs are my attempt to explain where I"m coming from and why I'd love to hear more about your thought process on this issue.
37. Candice Watters said the following at 9:42 AM on Jul 7
Jesus could, and does, forgive us our sins when we ask Him to. That, of course, requires repentance on the part of the sinner. But forgiveness at the foot of the cross does not negate the (God-given) prerogative of the state to wield the sword. Let us not forget Romans 13:3-5:
"For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience."
38. Candice Watters said the following at 10:14 AM on Jul 7
As for an explanation about the trouble caused by awarding enemy combatants the rights of American citizens, see The Wall Street Journal's "The Enemy Detainee Mess."
Here's a taste:
Read the full story here.