Roper III

Roper 3, Owens

A difference in our Constitutional views might be in the different options we perceive to be before the Court. It looks like one way of looking at the case is this: 1) we need to understand the prevailing nation-wide view; 2)9 Justices have to make the call; 3)they could seek to find fairly objective means of doing so (a poll of state legislative actions; 4) or they could make up their own minds on the issue.

Under that framework, it would seem that I am arguing for point 4, and Lily is suggesting the wisdom of part 3. I am not certain this is the only available framework. Certainly, it makes sense. It is also, though, the framework that leads to many a deep contradictory reactions--ie, why do we celebrate Brown (which, under this paradigm falls under #4), but seem properly reluctant to praise a Justice's individual thinking at most any other time (you will never see a nominee say anyhting other than "I will seek to uphold the law, not make it" in front of a Judiciary Committee)?

I suggest this is not our only framework. We already know of at least another, suggested by a famously colorful dissenter of this case: what was cruel and unusual in the 18th century? I don't suggest that approach, though, as it is really much the same--simply replacing our current country with the one that existed more than 200 years ago.

What if we strike number 1 of the framework, and start with the question posed by the 8th amendment: what is cruel and unusual? Then, we make the following assumtpions: We place on the Justices the duty to decide, as Judges, not as representatives. They will not seek out their own interests, nor necessarily that of the majority. They will seek out the meaning of the Constitution.

That's an incomplete thought because I haven't completed it myself. But its a start. And, besides, we obviously have some further discussions to delve into--as I beg to differ that we are, at root, based on that democratic favoring of the majority. Look what happened to Athens.