Carol Steiker
speaker
64 appearances
1 recordings
1 series
first heard Jan 2025
last heard Jan 2025
Carol Steiker’s voice in public audio — every appearance, attributed to the second.
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Appearances
Therefore, a principle to be vital must be capable of wider application than the mischief that gave it birth.
In former times, being put in the stocks was not considered as necessarily infamous. But at the present day, it might be thought an infamous punishment.
It's weirdest to apply originalism to the sort of deliberately vague provisions of the Constitution or what some have called more poetically the majestic generalities of the Constitution, like due process of law or equal protection of the laws or unreasonable searches and seizures, which has been interpreted to be about reasonable expectations of privacy or cruel and unusual punishments.
When the Constitution says the president needs to be 35 years old, that's not a majestic generality. But when the Constitution says no cruel and unusual punishments, and even at the time it's being debated, the ratifiers are saying, not entirely sure what that means. You know that it's being passed as a generality to be given content over time.
I think Weems gives a very poetic answer. and ringing endorsement to a living constitutionalist view. That the evil can't be specifically whatever it was at the time of the language. It has to be given a wider interpretation than the mischief that gave it birth. And Trope versus Dulles doubles down on that.
Stripped of his American citizenship. But he didn't have any other citizenship. So he'd now be a stateless person. With really no right to live anywhere and be part of any political community.
And the Supreme Court said, that's cruel and unusual punishment.
And to be honest, Justice Frankfurter dissented in saying, well, we execute deserters. So are you really saying that citizenship stripping is a fate worse than death? But that's what the court says in Trope v. Dulles, that citizenship stripping is cruel and unusual, even if they said we're not at this point willing to say that death is cruel and unusual.
They said the meaning of the Eighth Amendment— should come from, and this is language the court thereafter repeats over and over, the meaning comes from the evolving standards of decency that mark the progress of a maturing society.
Now, that's not a lot clearer than cruel and unusual, but it is. bakes into the test the idea that these standards change. They evolve over time. And that they evolve in a progressive way, presumably toward decency and toward less harshness and punishment.
So after World War II, not just in the United States, but in Europe and around the world, the death penalty really went into a deep nosedive. I think there was some real skepticism about the authority of governments to be able to order executions. in the wake of the fall of Hitler and Mussolini. So the death penalty was very much questioned.
It was forbidden in Germany and Italy's post-World War II constitutions. And even in the United States, It had really begun to fall into disfavor. And one of many reasons that it fell into disfavor, but a very significant one, was its racially discriminatory use, especially in the American South.
They said, you know what? We should make this our next big thing. We should mount a constitutional litigation campaign to end the American death penalty as a matter of racial justice.
They sent like a kind of sort of form of freedom riders. They sent a bunch of young people down to the south to go to courthouses. This is before computers. If you wanted to find evidence about cases, you had to go to the courthouses and pull records.
And they sent teams of young people down to southern courthouses to try to build a record about the racially discriminatory use of the death penalty.
But as this litigation campaign picked up speed, they began to throw everything at the wall, every argument they could think of against the death penalty. And one of the big arguments was standards of decency have evolved.
In the 1960s, the death penalty was much more broadly authorized than it is today. Like I've already said, you could get it for rape in addition to murder, but you could also get it in some states for armed robbery, for kidnapping, for arson. So it was very broadly authorized. And juries decide whether the death penalty should be imposed, not judges.
And they were given no instructions whatsoever about who should get the death penalty. They were simply told, it is in your sole discretion, according to your conscience, whether to impose death or life or sometimes a lesser punishment. And so that was thought to be a due process problem, that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.
And then... Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.
The headline in the New York Times that announced that decision was the same banner as had announced men landing on the moon three years previously in 1969. It was that big a deal and that much of a surprise. Like, nobody thought that that's what was going to happen, but that's what happened.
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