Should have known

Posted by in: Odds and ends


In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime…Justice Kennedy’s conclusion about the absence of federal law was mistaken.

Surely there is reason to require the Justice Department to apprise the Supreme Court of relevant facts concerning existing laws when this information in relevant to a case. But does the Court always treat paradigm sources of expertise as the exclusive avenue through which they acquire knowledge of this sort? I find it hard to believe that not one amicus brief mentioned this, or that no clerk of Kennedy’s should have known the same thing the Justice Department should have known, especially since one crux of Kennedy’s argument reportedly was that since “child rape was a capital offense in only six states, and not under federal law, the death penalty for the crime did not meet the ‘evolving standards of decency’ by which the court judges capital punishment.” It’s just strange to me that this is being billed as a “Justice Department Fucks Up” story. But maybe there are elements of Supreme Court jurisprudence that supports framing the story that way.

And speaking of strangeness, on a strict reading of the Bill of rights, would any punishment be unconstitutional if it were unusual? The Eighth Amendment says “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” One might argue that the use of a copula entails that unusualness on its own would not sufficient for unconstitutionality; you’d have to have cruelty and unusualness. But it could be argued that this is the wrong way to read the copula. It could be used to express the dicta that no cruel punishments shall be inflicted and that no unusual punishments shall be inflicted. Or, if you didn’t go that route, you could argue that surely it would be sufficient to prove unconstitutionality that the punishment is cruel; it is no defense of a heinous form of punishment that it’s popular. And then if you allow cruelty to be determinative on its own, you should allow unusualness as well.

Basically I’m just talking out my ass. And I don’t care much for literalist interpretations of the Constitution anyway. So I can rest easy, not least because musings such as these are no longer unusual punishment for y’all.