I congratulate George Will for recognizing the absurdity of the conservatives’ dissents in Miller v. Alabama. Mr. Will was a little coy about his criticism, but at least he felt moved to say something. When it comes to human rights, you can’t resort to constitutional originalism. In reality, you can’t go back beyond 1945. It was only after the survivors of World War Two saw what humans had done to other humans and faced the prospect of nuclear annihilation that we got serious about human rights. There are many things that were not considered particularly cruel and certainly were not unusual prior to 1945 that are now considered violations of people’s human rights. To argue that we cannot interpret the Eighth Amendment according to post-war standards of decency is barbaric. The conservatives on the Supreme Court are barbarians. You can trust Mr. Will to forget this insight by suppertime.
About The Author
BooMan
Martin Longman a contributing editor at the Washington Monthly. He is also the founder of Booman Tribune and Progress Pond. He has a degree in philosophy from Western Michigan University.
June 18th was the anniversary of the UN Declaration of Human Rights being signed.
The Supremes are anti individual rights.
“When it comes to human rights, you can’t resort to constitutional originalism.”
Excepting that the Bill of Rights is entirely about human rights, that is a critical insight.
“In reality, you can’t go back beyond 1945. It was only after the survivors of World War Two saw what humans had done to other humans and faced the prospect of nuclear annihilation that we got serious about human rights.”
Another critical insight, often lost on those born after WWII. Our grandfather’s entire world view and sense of goodness and beauty permanently changed once he saw that even a reasonably sane and healthy country like the USA was very (and increasingly) capable of dropping atomic bombs on top of millions of civilians.
“Alito wrote: “Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law?” Besides, he said, aren’t elected representatives better than judges at gauging society’s standards? “
What the fuck is that? Elected officials, representing the majority, are better placed to protect the rights of the individual than a judge? Why not make lynching legal again? It was the accepted norm and protected by elected officials for years. Who the fuck put him in charge? Oh, that’s right. I forgot.
How just be acknowledging that–as one of the most powerful judges in the country–he’s actually a fundamentalist sadist.
“Who do you want protecting you–some guy who’s concerned about getting elected again…. or me?”
Wow!! What a last paragraph that was!! 😉
“In reality, you can’t go back beyond 1945. It was only after the survivors of World War Two saw what humans had done to other humans and faced the prospect of nuclear annihilation that we got serious about human rights.”
Apparently, Fat Tony has forgotten all the names that he was likely called as a kid. Remember Sean Connery talking to Andy Garcia at the gun range in The Untouchables?
I think there is wisdom in some of these founding documents, and they were often ahead of their time, but as a woman I am more than a little disturbed by the (increasingly common it seems) implication that the entire perspective of the time in which they were written is still remotely valid. Women had no rights back then. African Americans were considered beasts of burden.
I can only assume that the people who harken back to those days think all of that was just fine. Otherwise, what the fuck are they talking about?
He agreed with the conservative dissenters while expressing a pious hope as to a good effect of the decision, that it will make other cruel punishments less frequent and so, in the long run, unconstitutional.
But he agreed with the conservative dissenters.
Despite the obvious fact that had they had their way the good effect of the incorrect, liberal decision would have been lacking.
By the way, isn’t the idea that standards of what is cruel (or perhaps too cruel) can (whether or not they do) evolve over time a form of at least indirect moral relativism?
The idea that, though cruelty is always wrong, what is done out of cruelty changes over time, much as other things people find fun can change over time?
And here is George, the moral absolutist, espousing it?
Though Alito didn’t seem to be buying it.
The conservatives held mandatory imprisonment of kids was not unusual and so not contrary to the VIIIth A.
Did they agree it was cruel?
Was there a split right there between originalists and partisans of the evolving constitution, the former insisting that cruelty be measured by the standards of 1789 and the minority appealing to contemporary standards?
If not, how exactly did the question of originalism vs living constitution even come up
Oh, I forgot.
Does originalism entail we take the 8th A to refer to what was unusual in 1789 rather than what is unusual today?
So where does this leave Will, anyway?
He seems to favor appeal to current standards both as to what is cruel and as to what is unusual.
An afterthought.
Will accepts the traditional moral view that responsibility for wrong-doing can be diminished by diminished capacity for self-control, and along with it desert for blame or punishment.
And diminished desert for punishment translates into desert of diminished punishment, since punishment must be apportioned according to desert for wrong-doing.
Like so much of what is in the law, this view is embedded in Christian morality and the Christian theory of natural law inherited from the Stoics, and also to be found in other ancient philosophers.
But while it fits well enough with retributivism and the corrective theory of punishment (both also traditional), it doesn’t fit at all with a more utilitarian conception.
According to that outlook it may be argued that as it becomes more difficult to deter one has to escalate to more extreme punishments and, if deterrence becomes impossible, then one has to resort to preventive incapacitation.
In the former case the more impulsive and less self-controlled the criminal the heavier the punishment must be, a claim exactly contrary to the traditional moral view.
In the latter, life in prison may be all the more called for as preventive detention and could even be appropriate in case much lesser crimes reveal the same dangerous lack of self-control.
Supposing, that is, one rejects the death penalty, the most reliable and cheapest preventive measure of all.
None of which is to say I share the utilitarian moral view any more than the general run of liberals.
But it is interesting that though liberals trumpet the unconventionality of their opinions as to what is right and what is wrong their moral outlook, down deep, is so profoundly ordinary.