"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, May 23, 2006

Selective federalism?

Ken at CrimLaw thinks with respect to the death penalty that it's
shameful that the federal government is forcing it into parts of the US where it has been done away with by the will of the people as expressed by their legislatures. Rebuffed in Puerto Rico (how desperate do you sound when you're talking about how one juror supported your position?) the feds succeeded in Vermont.

Hmmm. So does he also think that in matters like abortion, sodomy, medical marijuana, school prayer, and flag desecration (just to name a few) that the federal guvmint should bow out in deference to the will of the people, who in each instance in various states have had their expressed will overturned by the Supremes?

How bout when the Supremes enforce their often contorted views of the 4th, 5th, 6th, and 8th Amendments on states whose courts have interpreted them differently? (And for the combox anons--yes, I am aware of the so-called doctrine of selective incorporation, whereby the 14th Amendment supposedly requires the states to observe whatever portions of the Bill of Rights the SCOTUS thinks they should, together with whatever glosses the Supremes put on those provisions.)


Anonymous said...

I think you need to distinguish between enforcement of criminal laws against individuals, and interpretation of the constitution (particularly the bill of rights as incorporated via the 14th amendment).

kateri61 said...

Abortion is a criminal act against an individual - and Tom's point is that most people see it that way (I understand that you anon lawyers make a legal distinction and I do understand the difference... don't lecture. Pity the poor child that doesn't get your representation).

Why not let the people (states) decide on these issues? Why is the government so afraid of the people's voice? Give us a little true representation, and who knows what we'll demand next???

Tom McKenna said...

Actually, anon, Ken's complaint is that the federal government is apparently usurping the expressed will of the people of certain states that they do not favor the death penalty. My point is that the federal government overrides the will of the people in many, many other contexts also. To be consistent, if you think the feds should not execute criminals in federal districts containing states that have outlawed the practice, then you should favor the government bowing out when the will of the people is expressed in laws outlawing sodomy or abortion.

The issue is not interpretation of laws, it is imosition of federal power, whether that's accompished by legal interpretation or by application of positive law.

Anonymous said...

So far, there really hasn’t been any imposition of federal power. The marshals have not had to restrain any police forces from arresting OB/GYNs. Now, since the constitution does explicitly provide the Supreme Court with the power to be the final interpreter of the constitution, I don’t see what the problem is. On the other hand, the power of the federal government to impose criminal punishments (for crimes other than treason) is somewhat more ambiguous, but I guess you can get it in under “commerce.”

Katia, Abortion is not a crime in any state, provided it is undertaken by a provider that has a valid license. So, you are not only wrong, but I think this is obvious enough to most people that I think that you might have deliberately made that misstatement to make a political point.

You are free to attempt to amend the constitution, but there is little interest in it because 1) people like abortion; and 2) most people think it is a million times more important to prevent gays from getting married. I don’t really see why non-lawyers have anything to do with it, anyway. They just repeat political slogans (that are usually written by lawyers that lost a case, anyway.)

Ken Lammers said...

Yes. Yes. Yes. Yes. Yes. The first three really don't have any basis in the constitution - especially if everything is intrastate. As for the last two, the 1st Amendment only precludes Congress from passing laws which establish religion or suppress speach, not the States.

Beyond that, the fact that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" means that we're all entitled the protections of the 4th, 5th, 6th, and 8th Amendments as the federal supreme court interprets the federal document - or misinterprets it as the court has in Whren and Cabelles.

Anyway, the truly disturbing part of the feds' actions here is that they purposefully made the decision to bypass the will of the people. This isn't something like taxes, which are universally imposed. Each and every one of these attempts to legally kill someone through the federal criminal law system is a decision specific to that case, made by an unelected official, in full knowledge that it contradicts the will of the people in that locale.

Tom McKenna said...

It seems to me that the feds exercizing their clear jurisdiction under the commerce clause to prosecute one individual (even where the penalty is contrary to the public policy of the state where the crime occurred) is less offensive than the systemic erosion of democracy involved in the Supremes 14th amendment "substantive" due process jurisprudence. In the latter, the democratic will of entire states (sometimes all 50, as with Roe v. Wade) is usurped on highly tenuous grounds and in a way that would truly have shocked and amazed the drafters of the 14th amendment.

Tell ya what... how bout if we trade-- the feds stop prosecuting death cases (which will satisfy the defense bar) and (to satisfy folks who believe in republican government) abandon the judge-as-philosopher-king "substantive" due process canard.

Anonymous said...

I am still trying to figure out what the “Will of the people is.” People every day tell me that the “will” of the people is to “lock up” “those kinds” of people. On the other hand, people also tell me that the “will” of the “people” is to allow people (women included) to do many things, in order to maximize their liberty.

I don’t see how prosecutors, judges, or even legislatures can really ever know the “will” of the people, when, even if they went to a TTT, they are much smarter than the average American that thinks that it is acceptable behvarior to watch TV.

For my money is there is absolutely no point in a Supreme Court at all. It is, by its nature countermajoritian (as is the presidential veto), and there is no reason at all for it to even care what the “will” of the people is. Instead, they engage in some intellectual arguments where both sides can file briefs. This is anti-democratic and bad for America. America is not about briefs. It is about politics, lobbying, and campaign commercials.

Unfortunately, the founding fathers put a Supreme Court in the constitution. There has been no serious attempts to change this in recent years, instead, most Americans consider stopping gay marriage to be a million times more important than a Supreme Court.

Tom, Nothing seems “clear” about your commerce clause argument. I don’t see how murders really effect interstate commerce. (And I favor the death penalty for just about all crimes on the state level, and the abrogation of the 8th amendment because it only helps criminals.)

Whatever the case, if abortion really were so bad, there would be a constitutional amendment specifically allowing Congress to override the will of the states. But it isn’t. People like it (even people who campaign against it pay for their daughters’ abortions.) So, the Supreme Court seems to have gotten it right.

Faithmy said...

When reading that load of drivel, the only thing I really had issue with is the idea that Anon really thinks people talk to him. I mean he comes here and spews the same exact crap again and again (he has done the "pay for their daughters abortion routine too many times too count.) I mean--please! Not a single person here believes that anyone OUTSIDE Anons head actually talks to him.