Lily on Roper, response 3

Lily on Roper, response 3

I'm not sure that polling state legislatures on the juvenile death penalty is more "objective." It's more QUANTIFIABLE, and it's a way of measuring the majority's opinion. But that doesn't necessarily mean it is any more or less likely to get at the underlying truth of the matter than method (4) in Andrew's framework. Looking to majority opinions for guidance in policy formation works to some extent, but surely not always, or even often. Sadly, the majority can be just as likely to lead us away from objective truth as it is to lead us toward it. (Scariest and most obvious example in recent history: Nazi Germany)

The quantifiability of method (3) is probably what makes it so tempting as a rationale for decision-making. My experience in law school and my post-law school job, so far, has taught me that judges really, really like to decide something the easy way, instead of the hard way. Example: if, instead of having to do the hard work of reaching the constitutional merits, they can dispose of a case on procedural grounds, they will do it every time. For the most part, this is a laudable principle; it saves the constitutional questions for times when they really matter, and enables the court to choose its battles based upon when the most ideal, on-point factual situation presents itself. I wonder whether the Supreme Court in Roper went a bit overboard on this practice, though: by choosing method (3) over method (4), were they trying too hard to decide the easy way?

Also, in regard to Andrew's final observation, I should clarify that I didn't mean to suggest that our country's constitutional structure (and, if you will, "what it means to be American") is solely based on the democratic rule of the majority. I meant to invoke that principle on the nuts-and-bolts level of lawmaking; that is, I was just making the obvious and unoriginal point that a majority of Supreme Court justices hands down binding decisions, and (usually) a majority of legislators is required when a bill is being considered. My questions were, when is the operation of that mechanical principle completely inappropriate, and who gets to make that call as to whether we should use it or not?