I agree that reasonable is not the test --- bad use of words. State statutes are of course evidence of public opinion, but not, in my opinion, conclusive. We're talking about the cruel and unusual ban in the U.S. Constitution, so whatever it is we determine to be a cruel and unusual punishment would be cruel and unusual in all the states, including those that had passed a law authorizing that punishment. Of course, if the same punishment is authorized by a number of states, that goes far to express a national consensus. Jim Dueholm
This is an incredibly selective and partial reading of what he's doing. What's democratic about hammering through one of the most undemocratic gerrymanders in the country to ensure that the GOP maintains control while they push through unpopular laws? What's democratic about signing an (incredibly unpopular) 6 week abortion ban in the dead of night to avoid publicity?
I mean, this guy is the same idiot who bragged in his memoir about how he was using the power of the state to punish "woke" Disney for challenging his gay law, which Disney later turned around and is now using, word for word, as evidence in their lawsuit against the state of Florida alleging that they are unconstitutionally punishing them for free speech. There's a portion of right wing media who knows that Trump is a dead end, yet they're also caught between the Trump rock and the populist hard place of their audience who are desperately trying to make DeSantis happen. But all signs point to his being completely out of his league.
Also, who are the "elites," lol. You mean "elites" like former special prosecutors for George Bush? Those sorts of elites who controlled the GOP for decades and now are trying to recast themselves, perversely, as underdogs? Elites has become a catch-all, meaningless, boogey man, for two-bit right wing media pundits trying to get on the populist gravy train. It has no meaning other than to try to make stupid people angry. Sorry, dude. Your article only has 3 likes. Be more interesting. This sort of stuff is a dime a dozen.
L. Henshaw -- I have a confession and two questions. The confession is that my entry here is indeed a selective and partial reading of everything DeSantis is doing. That's because he's doing hundreds of things, and I couldn't possibly cover all of them even if I wanted to. So my attention is indeed "selective," there being no realistic alternative for me (or anyone else who writes Substack entries). A non-selecitve entry would be too long for anyone to want to read.
My first question is whether you could quote the language in the Constitution that blanketly forbids the death penalty for child rape. If you can't, would you then agree with the Democratic leader in the Florida State Senate that this bill is a good thing in allowing juries to decide whether, if at all, a particular child rape may be so vile and grotesque as to warrant capital punishment.
I agree with the conclusion but not the analysis. I think the Eighth Amendment is a provision in which originalism is an evolving concept, for the public view of suitable punishment changes over time. We can't allow legislatures to conclusively decide what's reasonable, or the Eighth Amendment would be a dead letter. The Amendment's application at any time has to be determined by the Supreme Court, but it can't determine it by looking to foreign law or the justices' personal views of what's right and what's wrong, which is what the modern court has done. The test of whether a penalty runs afoul of the Eighth Amendment should be whether the penalty commands broad public acceptance. It's arguable that it's only the views of death penalty proponents that are relevant in determining whether that penalty should apply to particular crimes, for death penalty opponents will be against the death penalty in all cases. For myself, I see no problem in executing someone who rapes a child, though I wouldn't apply it to consensual statutory rape. Jim Dueholm
The Eighth Amendment is not a dead letter simply because the reasonableness of the death penalty is determined by the legislature reflecting popular opinion. The amendment does not require that a punishment be "reasonable," merely that the punishment not be "cruel and unusual." One objective standard is that it requires a judge to impose a punishment which is set by law, rather than making up a punishment which is not normally imposed and is not normally authorized by law. Recall that in 1791 the law, and criminal justice, were not as organized as today, and I assume -- though I may be wrong -- that the drafters were concerned with the specter of judges making up their own rules.
I agree that reasonable is not the test --- bad use of words. State statutes are of course evidence of public opinion, but not, in my opinion, conclusive. We're talking about the cruel and unusual ban in the U.S. Constitution, so whatever it is we determine to be a cruel and unusual punishment would be cruel and unusual in all the states, including those that had passed a law authorizing that punishment. Of course, if the same punishment is authorized by a number of states, that goes far to express a national consensus. Jim Dueholm
This is an incredibly selective and partial reading of what he's doing. What's democratic about hammering through one of the most undemocratic gerrymanders in the country to ensure that the GOP maintains control while they push through unpopular laws? What's democratic about signing an (incredibly unpopular) 6 week abortion ban in the dead of night to avoid publicity?
I mean, this guy is the same idiot who bragged in his memoir about how he was using the power of the state to punish "woke" Disney for challenging his gay law, which Disney later turned around and is now using, word for word, as evidence in their lawsuit against the state of Florida alleging that they are unconstitutionally punishing them for free speech. There's a portion of right wing media who knows that Trump is a dead end, yet they're also caught between the Trump rock and the populist hard place of their audience who are desperately trying to make DeSantis happen. But all signs point to his being completely out of his league.
Also, who are the "elites," lol. You mean "elites" like former special prosecutors for George Bush? Those sorts of elites who controlled the GOP for decades and now are trying to recast themselves, perversely, as underdogs? Elites has become a catch-all, meaningless, boogey man, for two-bit right wing media pundits trying to get on the populist gravy train. It has no meaning other than to try to make stupid people angry. Sorry, dude. Your article only has 3 likes. Be more interesting. This sort of stuff is a dime a dozen.
L. Henshaw -- I have a confession and two questions. The confession is that my entry here is indeed a selective and partial reading of everything DeSantis is doing. That's because he's doing hundreds of things, and I couldn't possibly cover all of them even if I wanted to. So my attention is indeed "selective," there being no realistic alternative for me (or anyone else who writes Substack entries). A non-selecitve entry would be too long for anyone to want to read.
My first question is whether you could quote the language in the Constitution that blanketly forbids the death penalty for child rape. If you can't, would you then agree with the Democratic leader in the Florida State Senate that this bill is a good thing in allowing juries to decide whether, if at all, a particular child rape may be so vile and grotesque as to warrant capital punishment.
Agree in re "thank you God."
I agree with the conclusion but not the analysis. I think the Eighth Amendment is a provision in which originalism is an evolving concept, for the public view of suitable punishment changes over time. We can't allow legislatures to conclusively decide what's reasonable, or the Eighth Amendment would be a dead letter. The Amendment's application at any time has to be determined by the Supreme Court, but it can't determine it by looking to foreign law or the justices' personal views of what's right and what's wrong, which is what the modern court has done. The test of whether a penalty runs afoul of the Eighth Amendment should be whether the penalty commands broad public acceptance. It's arguable that it's only the views of death penalty proponents that are relevant in determining whether that penalty should apply to particular crimes, for death penalty opponents will be against the death penalty in all cases. For myself, I see no problem in executing someone who rapes a child, though I wouldn't apply it to consensual statutory rape. Jim Dueholm
The Eighth Amendment is not a dead letter simply because the reasonableness of the death penalty is determined by the legislature reflecting popular opinion. The amendment does not require that a punishment be "reasonable," merely that the punishment not be "cruel and unusual." One objective standard is that it requires a judge to impose a punishment which is set by law, rather than making up a punishment which is not normally imposed and is not normally authorized by law. Recall that in 1791 the law, and criminal justice, were not as organized as today, and I assume -- though I may be wrong -- that the drafters were concerned with the specter of judges making up their own rules.