the Supreme Court decision on this was essentially based on the "Cruel and Unusual Punishment" clause or principle.

Which is almost a tautology on the back end anyway.  If a punishment has existed for a long time and is invoked often enough, it is not "unusual".   The death penalty, in general, was for a time in danger of being an "unusual" punishment because legal challenges to the death penalty had stopped the practice for quite awhile.

this reminds me of the old Jewish joke that the definition of "chutzpah" is someone who murders his parents and then argues for mercy on the grounds that he is an orphan.

the death penalty for child rape is only "cruel" in the instance if you don't see child rape as being as egregious as murder.  Many of us, including Mr. Obama, do see it as being so.  Probably more egregious in that many murders are instigated by fear and anger.  

The Supreme Court in this decision, intruded into a decision that ought to be left to the states.  "Cruel and Unusual" is pretty tenuous doctrine here.   And, by the way, in an era where rape may also spread a deadly disease, it is easily equated with murder or at least mayhem.

I don't knowwhat makes something "cruel", and I think it's extremely fuzzy. I do think it's cruel to execute the mentally retarded [like Ricky Ray]. Is cruel defined anywhere in any decisions?

I have not yet the reasons of the death penalty case. They await me. My general impresson, which you redress in what you just wrote, is that in fact Obama---whose books I have not read--was straight up against the death penalty. So your post is the beginning of a welcome correction to that, if Obama's political record on death penalty issues bears out his public, political approach to the death penalty issue. I admit that my first uninformed reaction to his criticism of the decision was as you described it:

...Barack Obama's criticism of the Supreme Court decision banning execution of child rapists as the worst kind of poll driven pandering--akin to Bill Clinton's decision to fly home to Arkansas during the 1992 election to permit the execution of the mentally handicapped Ricky Ray Rector..

I found one thing a little convoluted--it's me not you--in your post: but I read you say that you are encouraged by Obama appearing to move away from a Warren style court of judicial activism that he first extolled.

Either Obama's *nuances* are nicely coming together--at least by your lights, or he is too *nuanced* by half.

>>> (His campaign is backpedaling away from his "inartful" statement last year that "Obama believes the DC handgun ban is constitutional.")

He referred to himself in the third person?!

No. That wasn't "his" statement. It was a statement from a staffer.

TNR: Please don't spread the falsehood that Obama has flip-flopped on this!

basman, the premise of the story is that Obama is stating a new stance on the death penalty for child rape  in order to win votes in the presidential election.

If that is correct, then he is not necessarily changing the position he'll later take when president where he might have a direct or indirect effect on the issue.

I recalled that very passage when I heard his response today. I've thought all along that Obama is more "conservative" on a lot of issues than people realize. It's because he's an independent thinker, a person who weighs every issue with his judgment and reason. For somebody like him issues are never black and white, and do not fit neatly into democrat vs. republican, liberal vs. conservative. Because Obama is a thoughtful person, because he does not have a knee-jerk partisan response to every issue, he's alway bound to come under criticism from all sides, and unfortunately, to people who prefer ideological consistency to nuance, he's going to seem like a hypocrite.

I respect the courage of his response. He had to know that he'd come under criticism from liberals on this. Having said that, I don't agree with him.

I think you're missing a nuance, Jeff. In that passage I believe Obama is stating that he supports the death penalty for someone who raped AND murdered a child.

"Independent thinker" vs "knee-jerk partisan" is a pretty self-serving way of looking at this.  Even if everyone in America called themselves post-partisan independents and solemnly stroked their chins while making weighty pronouncements, there would still be some who came to the conclusion that the state should never commit executions and Obama would still face criticism from them

simon greenwald: did you note that I said I don't agree with him? He faces criticism from me.

jacob is right. I agree with the Supreme Court for the simple reason I see no earthly reason to provide any additional incentives for a Rapist to kill the child, which would happen if the punishment is the same, for the same reason you execute kidnappers who kill but not those that let the victim go, make the punishment the same and the kidnappers have far more reason to dispose of the evidence (ie. kill the victim)

Let's clear something up. Obama's position on the Second Amendment has been clear. In the opening sentence to response to a question on the DC law in the ABC debate , he stately quite frankly that he believes the Second Amendment confers an individual right.

MR. GIBSON: Senator Obama, the District of Columbia has a law, it's had a law since 1976, it's now before the United States Supreme Court, that prohibits ownership of handguns, a sawed-off shotgun, a machine gun or a short-barreled rifle. Is that law consistent with an individual's right to bear arms?

SENATOR OBAMA: Well, Charlie, I confess I obviously haven't listened to the briefs and looked at all the evidence.

As a general principle, I believe that the Constitution confers an individual right to bear arms. But just because you have an individual right does not mean that the state or local government can't constrain the exercise of that right, and, you know, in the same way that we have a right to private property but local governments can establish zoning ordinances that determine how you can use it.

And I think that it is going to be important for us to reconcile what are two realities in this country.

[...]

But you also have the reality of what's happening here in Philadelphia and what's happening in Chicago.

And...

Mr. GIBSON: But do you still favor the registration of guns? Do you still favor the licensing of guns?

And in 1996, your campaign issued a questionnaire, and your writing was on the questionnaire that said you favored a ban on handguns.

SENATOR OBAMA: No, my writing wasn't on that particular questionnaire, Charlie. As I said, I have never favored an all-out ban on handguns.

What I think we can provide is common-sense approaches to the issue of illegal guns that are ending up on the streets. We can make sure that criminals don't have guns in their hands. We can make certain that those who are mentally deranged are not getting a hold of handguns. We can trace guns that have been used in crimes to unscrupulous gun dealers that may be selling to straw purchasers and dumping them on the streets.

The point is, is that what we have to do is get beyond the politics of this issue and figure out what, in fact, is working.

Look, in my hometown of Chicago, on the south side of Chicago, we've had 34 gun deaths last year of Chicago public school children.

And I think that most law-abiding gun owners all across America would recognize that it is perfectly appropriate for local communities and states and the federal government to try to figure out, how do we stop that kind of killing?

www.nytimes.com/.../16text-debate.html

It's a rather safe position on the issue, but it is remarkably consistent with Justic Scalia's majority opinion (which also went out of the way to play it safe).  I suppose we can infer that a President Obama would not actively oppose such bans and put the SG to work as the Bush administration has done, but he doesn't believe in firearm bans on priniciple (i.e. guns are bad and must be taken away.)

...I agree with the Supreme Court for the simple reason I see no earthly reason to provide any additional incentives for a Rapist to kill the child, which would happen if the punishment is the same, for the same reason you execute kidnappers who kill but not those that let the victim go, make the punishment the same and the kidnappers have far more reason to dispose of the evidence (ie. kill the victim)...

This doesn't make too much sense to me.

Someone raping and brutalizing a young child in such an egregious way that a prosecutor in his or her discretio calls for the death penalty is not exactly calibrating the exactitude of injury to be inflicted by the likely sentencing.

In fact I'd turn that around on you and suggest that if there is any rational consideration of consequences its at the pre rape brutalizing stage where the prospect of death might be a deterrent.

But let's not kid ourselves. The issue here is retribution, which Kennedy acknowleges being one of the three rationales of criminal sentencing, the other two being rehab and deterrence. (By the way diidn't you think Kennedy was arguing in a circle whe he said that retribution most pronoucedly stands in the way of the ends of the law. What ends I ask: isn't retribution one of them?)

On this issue I agree with Obama--whether he is pandering or genuine I don't know, maye both?-- that there are simply some criminal acts that beg for the most consequential of punishments and I'm persuaded by Alito's dissent that they can include the most savage and aggravated rape of a child short of its death. (I found Kennedy's majority opinion offensively self arrogating.)

I agree with mjdellaporta that Scalia's opinion in the gun case jibes with the public position I heard Obama take which is that the Second Amendment applies to individual gun rights but does not impede the tailored regulation of his rights. (And him thinking the D.C. ban was constituional, if he did, would not necessarily be inconsistent witht hat position, if the ban--the particulars of which I am not familiar with--could be read as not infringing that Second Amendment right, which is a tough sell admittedly, if in fact it is a wholesale ban.)

Really though I just want to argue with someone about the child rape case.

Yesterday, I suggested that Obama left Nixon and Clinton in the dust for deviousness and opportunism. Today, Charles Krauthammer tallies...

Atlantic blog consider this:

Richard Posner from his book on public intellectuals:

“…People (he’s talking about scholars and academics) who live this way have difficulty grasping the distinctive and essential constituents of politicall morality, comprising the necessary qualities in a statesman or other leader. Those qualities are strategic and interpersonal (manipulative, coercive, psychological) in character. They constitute the morality, misunderstood as cynicism, expounded by Machiavelli, the morality that Weber contrasted with the “ethic of ultimate ends” that one finds, for example, in the Sermon on the Mount. The ethics of personal responsibility implies a willingness to compromise, to dirty one’s hands, to flatter and lie, to make package deals, to forgo the prideful self-satisfaction that comes fro self-conscious purity and devotion to principle. It requires a sense of reality, of proportion, rather than self righteousness and academic smarts. The politician must have an ‘ability to let realities work upon him with inner concentration and calmness’…”

Sounds like Obama and a proper reading of Machiavelli.