The 13th and 14th Amendments mandated an end to segregation. Up until then it was legal, though wrong.

I would add this corollary to your closing statement– even if I agree with what the judges have to say doesn’t mean that they should be saying it. Having five unelected people decide the course of the country, or its moral values, is definitely not what the Founders intended.

Just because you don’t agree with what judges have to say doesn’t necessarily mean they are wrong.

Musicguys last blog post..Can’t Cure Stupid

In this specific case we had multiple states that have on their books that if someone raped, mutilated and abused a child of 6 or 8 that it would be punished by death. Certainly the populations of these states either tacitly or overtly agreed with the ruling. And they’re part of society.

But what about the other states? What are the feelings of other people regarding child rape? We don’t really know. What we do know is how 5 of the 9 justices feel about it. We know that they say society has a problem with it, but other than having a survey asking the question we don’t have a good way to find out.

We cannot logically say that because 44 of the states do not have such a law that it means that the death penalty is cruel and unusual in this circumstance– just that 44 of the states chose not to apply it. We could imply that any state that believes that capital punishment is wrong regardless of the offense would also think it wrong for the child rapist, but then again, we have to take into account that there would even there be a minority that would support it as a punishment.

In the face of an absence of consensus, or a convince survey or set of data, it should have been left for the states to decide. There was no Constitutional grounds here.

The courts do not make legislation, what they do is decide which laws apply to a certain case. Now when deciding which laws apply to a case the courts must take into account what type of law it is and what it takes precedent over. Is it city law, state law, federal law, or constitutional law? Each of these laws going down the list takes precedent over the laws that come before it on the list.

For example: If there is a city law saying you can’t say anything that is determined to be hate speech, a judge would look at the city law and then look at the first amendment (which is constitutional law) and rule that the first amendment has precedent over the city law and thus is the law to be applied.

I hope everything is clear so far, let’s move onto the interpretations of ‘cruel and unusual punishment’.

‘Cruel and unusual punishment’ is a subjective phrase and it’s meant to be. The founding fathers knew that what is considered cruel would change over time, and if they where to specify what cruel is in the constitution, the constitution would have to be amended every ten or twenty years (when society decides that the ‘saw’ might not be the best punishment for thieves). With the phrase ‘cruel and unusual punishment’, though, the clause could change meaning to the current definition of society without amendment (which at the time the less amendments the better).

Now put the two points together. Even if a legislature puts the death penalty as a punishment, if society says that the death penalty is cruel and unusual punishment, the judges are required by their job to apply the higher law and not hand out the death penalty.

Well, if anything is unclear tell me and I’ll try to re-explain it.

P.S. It’s not a perfect system, but it serves its purpose without to much collateral.