I never deviated from this decision during the course of my long life, a life rich in stormy events. I have remained faithful to the principles that I swore to uphold during the stormy days of the revolution. They edged forward, closer to the pro-slavery enemy firing at them. Bondi, Benjamin and Weiner were willing followers of their commander, who fearlessly surged twenty feet ahead of them.
It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted—and some of which had not even been adopted by a majority of the states at the time they were judicially decreed.
For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run—of—the—mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity.
It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence.
And it has imposed an age limit at the time of the offense it is currently seventeen that is well above what existed at common law. As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring.
It means today not what current society much less the Court thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul—wrenching question. It was clearly permitted when the Eighth Amendment was adopted not merely for murder, by the way, but for all felonies—including, for example, horse—thieving, as anyone can verify by watching a western movie.
And so it is clearly permitted today. But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all.
I could not take part in that process if I believed what was being done to be immoral. Capital cases are much different from the other life—and—death issues that my Court sometimes faces: There it is not the state of which I am in a sense the last instrument that is decreeing death, but rather private individuals whom the state has decided not to restrain.
One may argue as many do that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact.
Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe and, for two hundred years, no one believed that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: With the death penalty, on the other hand, I am part of the criminal—law machinery that imposes death—which extends from the indictment, to the jury conviction, to rejection of the last appeal.
I doubt whether that doctrine is even applicable to the trial judges and jurors who must themselves determine that the death sentence will be imposed. Where as is the case in the federal system the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied.
But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted.
I find it hard to see how any appellate judge could find this condition to be met, unless he believes retaining his seat on the bench rather than resigning is somehow essential to preservation of the society—which is of course absurd.
As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as President of France because he was the indispensable man: He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own.
Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution.
But rewrite the laws he cannot do. If the death penalty is in his view immoral, then it is hey, presto! It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual.
In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable though I believe erroneous and regrettable reaction to modern, democratic self—government.
Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. Paul had this to say I am quoting, as you might expect, the King James version: Let every soul be subject unto the higher powers.
For there is no power but of God: Whosoever therefore resisteth the power, resisteth the ordinance of God:Daz 3D, 3D Models, 3D Animation, 3D Software. Start studying 19th Century Europe, Nationalism (AP European History).
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