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Originally Posted by Marcus1124
But the point I am making is that despite never having come out (yet) and affirmatively declared the death penalty in all instances unconstitutional, they have nonetheless managed to find it unconstitutional in all instances before them. And Stevens has actually gone on record now as making it pretty clear that he would readily join an opinion to find it unconstitutional outright.
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Ginsburg's and Souter's decisions reaffirm that the DP as a mode of punishment is constitutional. Otherwise, they would simply state what Stevens has.
None of their DP decisions would make any sense otherwise because their limitation arguments would have been moot from the git-go. It's the same logic as finding that the DP must be a constitutional mode of punishment because it is mentioned in the Constitution where limitations are being set upon it. There is no need to put limitations on something that is prohibited altogether from the git-go. Rather, that assumes its permissible character but with limitations. The same self-evident conclusion happens to be true with Souter's and Ginsburg's opinions.
I agreed with Scalia's opinion concerning Stevens' views in his concurrence that Scalia summed up in the end, to wit:
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. . . I take no position on the desirability of the death penalty, except to say that its value is eminently debatable
and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a
matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.
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http://www.law.cornell.edu/supct/pdf/07-5439P.ZC2
As for the other two who dissented, they have had equal opportunity to say the same things as Stevens in
Baze and previous opinions but have not done so. More tellingly, their opinions actually repudiate such an opinion.
Jurists must be judged on what they write in their opinions. Otherwise, we'd only be getting into strawman arguments, character assassinations and/or 'conspiracy theory' for debate and conversation. I think the best answer for the sake of fairness and accuracy is to just let the opinions speak for themselves. If anyone reverses an opinion, then they will. If not, then they weren't.
When I read Souter's and Ginsburg's opinions collectively, their position is basically as follows: The DP is constitutional so long as it is performed on mentally competent adults convicted of premeditated murder where the aggravating circumstances surrounding the event outweigh the mitigating ones, and that the jury make the decisions on these matters, and that the DP be performed in the least painful and efficient manner when performed.
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Originally Posted by Marcus1124
Should such disturbing indications of a justice's willingness to simply replace the will of the people as articulated in our Constitution and democratically enacted statutes be dismissed and disregarded merely because he is in the minority?
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See above. I also note that whilst I disagree with Stevens' view that the DP ought to be declared unconstitutional
per se--an opinion the dissenters did not join despite the opportunity to do so--he concurred with the majority opinion in affirmance out of respect for
stare decisis.