:: welcome to


:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Tuesday, March 01, 2005 ::
    Juvenile Death Penalty Banned by U.S. Supreme Court

    March 1 (Bloomberg) -- A divided U.S. Supreme Court outlawed executions of murderers who were under 18 at the time of the crime, saying the practice violates the constitutional ban on cruel and unusual punishment.
    Here is the slip opinion. Justice Scalia's dissent is here.

    You know, state governments -- notoriously pinched for funds -- could save a bundle by disbanding their legislatures and just letting the Supreme Court rule them directly through its by-now-familiar process of consensus-discernment. The only downside would be that the views of "international" (read: European; certainly not African or Asian) jurists would frequently be enacted into American constitutional law, as they have been today.

    I don't even particularly like the death penalty. The preaching of Pope John Paul II has given me a lot that I need to think about here. But the formulation of a moral judgment on it, and the translation of that judgment into votes every election year, is something I can handle myself, and I think most of my fellow-citizens can too. When did I resign that authority to litigators and courts? When did we vote on that? Oh, I forgot: resolving major issues by voting is so two hundred years ago.

    And another thing I forgot: morality can't be the basis for legislating any more. Only for judging, it seems.

    To get you started on the dissent:
    In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary...ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed, 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.....Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter....

    :: David M. Wagner 2:41 PM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?