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Doug:

I don't care what you say, you are on well on your way to becoming a good conservative (ha!)

We are supposed to have a system of three equal branches of government. What we have, however, is one branch that, with a majority of one, can render moot the decisions of lawmakers elected by millions of Americans or a president elected by scores of millions. That does not sound like "seperate, but equal" to me. I believe in a strong Supreme Court, but not an imperious one.

For those opposed to amending the constitution, I would point out that a simple majority of the nine justices on the Supreme Court amend the constitution every time they issue a ruling. The question is, who would you rather have making the decisions; those with lifetime tenure or those on a much shorter leash?

Thanks, Paul. Any guesses as to whether the court will nullify the 2nd Amendment when it decides the D.C. gun case?

I read part of the ruling and it made sense to me. Giving the death penalty for a crime that didn't result in a death falls under "unusual" because of the lack of proportionality. I think no one would argue it'd be cruel and unusual to execute someone for shoplifting. They draw the line at murder, which I think makes sense.

Personally I think the death penalty itself is cruel and unusual, as well as barbaric. I don't think any government should ever have the power to take the life of any of its citizens.

"Cruel and unusual" is meant to refer to the method of execution, not proportionality or frequency of application. Treason was when the Eighth Amendment was adopted, and still is in federal law, recognized as a capital offense although the crime need not take anyone's life.

These are matters for legislatures to decide. The public will not countenance capital punishment for shoplifting because the public's sons and daughters may be caught doing it.

Just in: The court strikes down the D.C. gun ban by a 5-4 count. Kennedy joins the conservatives this time.

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

I think that's completely wrong about "cruel and unusual." We make that distinction all the time based on proportionality. If someone kills another person just because they want to that would be cruel and unusual by any definition of those words, but not if they kill in self defense. The words in the Constitution say "cruel and unusual punishment." It doesn't say this is only applying to the method of punishment. I think the "punishment fitting the crime" is part of the consideration on whether a punishment is "cruel and unusual."

As for treason, the decision marked the difference between harm against the individual and harm against the state. They can't really be measured the same way.

Doug, you said about Barack Obama:

"I hope he'll make sure that his judicial nominees understand the line beyond which federal courts must yield to the legislative prerogatives of the states."

I think he has already pretty much told us he does not plan to do this.

Good to hear from you, Joe.

That's why I was surprised at, but welcomed, his statement about this ruling.

He plainly said the court overstepped. Did he mean that, or did he just find it too untenable politically to appear to stand up for such a vile criminal?

Doug, you said about Barack Obama:

"I hope he'll make sure that his judicial nominees understand the line beyond which federal courts must yield to the legislative prerogatives of the states."

I think he has already pretty much told us he does not plan to do this.

Doug,

Your argument regarding the majority's use of "cruel and unusual punishment" is dead on right. I'm glad both candidates responded as they did. Personally, if anybody "deserves" the death penalty I think it is child molesters and rapists. But if the punishment is not inherently cruel, and the court did not say that it was, then it is up to the people and the legislative system to decide who should receive this kind of consequence.

Thanks, Joel.

Yet, the court has had the last word on this issue, unless it decides to reconsider at a later time -- which would be unusual. And this opinion can form the basis for similar intrusions in other matters.

I should have added the possible remedy of constitutional amendment. Obviously that is a rarely used instrument, properly so. But I suppose if courts continue to reshape the constitution with their "evolving standards" approach, there might be growing interest in changing it back through the amendment process.

The Clark Credulometer is off the charts! Of course Obama will nominate justices of the kind who struck down this law.

I recognize that his first test is to make sure nominees are unwavering in support of abortion. I assume that protecting child rapists from execution will fall a bit below that.