Top-notch Baze-ian analysis
Over at FindLaw Edward Lazarus has this terrific essay discussing Baze, the SCOTUS lethal injection case taken up this week. The piece cover a lot of ground in a short space, and here is one of many effective passages:
It is hard to imagine a case more perfectly suited to capture the jurisprudential dilemma that has consumed and divided our legal culture for the last thirty years — namely, the tension between interpreting our Constitution in a way that is responsive to the nation’s history and experience, and making the interpretive process a free-for-all in which unelected and generally unaccountable judges impose on the Constitution their own personal political and moral beliefs.
This dilemma arises in significant part because some of the Constitution’s key phrases (like “due process”) are inherently amorphous. The lethal injection case raises a classic example, for it will turn on an interpretation of one of the Constitution’s less pellucid phrases – the prohibition on “cruel and unusual” punishments. There is no self-evident benchmark for what is too cruel or too unusual. Rather, deciding what punishments are “cruel” or “unusual” seems to cry out for some sort of subjective judgment — a search for standards and benchmarks that will never be completely value-neutral.
But if defining “cruel and unusual” necessarily calls for some inherently subjective assessment, what limits are there on judicial discretion in creating a constitutional definition? Surely, the constitutional definition of “cruel and unusual punishment” should have a more objective meaning than simply whatever at any given moment a majority of Supreme Court justices think the term should mean, based on their own various senses of individual morality.
Some recent related Baze posts: