So, it's about that time for exams again, and not paying attention at all this semester is now really kicking my ass. Last night, for example, I taught myself a few hundred years of early midde-Eastern history to make myself competent enough to write a take home examination for the class. That was exciting - Muhammad was a cool guy.

Moving on. So I'm here, sitting in the library and trying to make sense of substantive due process. I really thought I understood this concept before and now I realize that I don't. Actually, I think I get it, I simply disagree with it. I've disagreed with a lot of what the Court has had to say recently. Before taking this course, I'd often read that the Rehnquist Court was very conserative and pro-states' rights. Well, Rehnqist and his loyal followers - Thomas and Scalia - might have been, but his other colleagues, including the infamous 'swinger' O'Conner really made up some nifty stuff on the Bench and essentially, to use the words of critics over the last few years, were judically acitve, or in my opinion, over active.

Having relied upon expert analysis in the past in my approach to Supreme Court cases instead of actually reading the damn things, gave me very different opinions than those that I now hold. Experts tend to break things down, rather simply, so that people like me who claim to be 'informed' but who are too lazy to sit and read opinions, can be just that, 'informed.' The truth of the matter is, over the course of this class so far, I've realized that the opinions offered by my arch-enemies on the bench, with respect to political ideologies, are often far more sound than those with whom I self-identify. For all their pomp and arrogance, the Rehnquist trio was actually composed of a group of very intelligent men and it seems to me that, politics aside, these men argued and defended their opinions without allowing their political views to get in their way. Decisions such as Casey and Lawrence, which I have always agreed with, I have now come to realize, were decided on very shaky grounds, and I really do believe, despite my self-proclaimed 'hippy status' that if I were charged with interpreting the laws, as Supreme Court and other justices are, I would have used similar reasoning as did the Rehnquist trio.

Frightening, I know.

The problem, I think, lies with the rather liberal interprative methods that the court has implimented over the last few decades. This morning, as we concluded the section on capital punishment, (Roper v Simmons) we were challenged to think about and articulate our postions on the inclusion of foreign laws and opinions in Court decisions. I strongly believe that Justices are held to the standards of the Constitution only and that It should be their sole guide with respect to decision making for/about the American people. However, I could not help but think about other areas, politically, where I disagree such as the failure of the Government to adhere to standards agreed upon at the Geneva conventions. I also thought it necessary, in the past, that the United States should join the International Court of Justice, yet I now rethink my position and believe that such an alignment would be detrimental to American jurisprudence, although politically, I believe it would guarantee that, among other things, American forces abroad would behave themselves.

Essentially, as I realize that I have about half-an hour before Math, and that I need to get another cup of coffee before class, recent theories and implementations such as substantive due process, and "spheres of privacy" which got me into a lot shit with my professor, have created a seemingly 'ever evolving' standard by which the Court must now try cases. These decisions has led to the Constitution becoming more flexible, and in my view, more porous, than it has ever been before. In his dissent in a Capital decision, Scalia asserted that with the Court's "evolving standards of decency" theory, and the prohibitions that it has installed, such as the prohibition against killing minors and the mentally retarded, he argued that at what line would the Court stop in legislating the punishment. For, though one may believe that those are the only two, or two in a few instances in which capital punishment is not permitted nationwide, the Court in the 80's found it necessary to dictate to States that only certain types of crimes, such as premeditated murder, and murder of peace officers and law enforcement officials, were permissible. Now, I agree with 10 yr old children should not executed (and hopefully most of us do) but Scalia has a point, and it's one worth going back to as original cases are brought before the Court, challenging standards that are today held to be 'normal.'

Math calls.


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