byÂ KEN KLUKOWSKI
One Republican candidate for California attorney general argues for the death penalty for corrupt politicians whose actions endanger lives. While frustration against public corruption is appropriate (and for that matter should increase), and actions that actually cost a personâ€™s life should be punished as homicides, itâ€™s not a good sign when someone aspiring to be the top lawyer of a state evidently doesnâ€™t understand the Eighth Amendment to the U.S. Constitution.
Phil Wyman has served for 17 years in the California legislature, and is seeking the GOP nomination for attorney general. Responding to the scandal involving state Sen. Leland Yee, an anti-gun Democrat indicted as part of an international gun-smuggling scheme, WymanÂ reportedlyÂ remarked that some politicians whose corrupt actions endanger lives should face the death penalty.
Wyman specified that heâ€™s only referring to the â€œmost egregiousâ€ abusers of public office, adding that they should have the option of how their execution is carried out, such as allowing them to choose a firing squad over lethal injection.
â€œIf they know that itâ€™s gun-running and they know itâ€™s going into a terrorist organization in the Philippines, that person earns the death penalty, and especially if theyâ€™re in elected office,â€ Wyman said.
Any firearm traced directly to a homicide would earn the death penalty in many jurisdictions, and if Wyman clearly referred only to terrorism, then perhaps drastic punishment could be imposed there as well. But itâ€™s never been legal in America to terminate someoneâ€™s life for mere corruption, no matter if theyâ€™re a politician.
Evidently itâ€™s a bipartisan offense for Californiaâ€™s top lawyer to advocate violating the Bill of Rights. Democrat Attorney General Kamala Harris doesnâ€™t understand the Second Amendment, arguing that California has the power to ban law-abiding citizens from carrying firearms outside their homes. Yet now a Republican rival for that office doesnâ€™t understand the Eighth Amendment, which commands, â€œExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.â€
When the Eighth Amendment was adopted, the prohibition on â€œcruel and unusual punishmentsâ€ applied to punishments such as torture or maiming. Regarding capital punishment, only severely retarded individuals (literally called â€œidiotsâ€ back then) or others (like the very young) who could not understand what they were doing when they killed someone could be automatically exempted.
In 1910, the Supreme Court added that the punishment should be a proportionate response to the crime. (For example, you couldnâ€™t give someone 25 years in prison for bouncing a check.) This proportionality rule was a common feature during the Warren Court in the 1950s and 60s, and became a mainstream constitutional concept.
Since 2002, the Supreme Court has invoked such reasoning in striking down the death penalty for (1) people with mild mental handicaps, (2) anyone under age 18, and (3) child rapists. Although the majority did so saying â€œdeath is different,â€ the Court recently ignored that caveat and struck down life in prison without parole for anyone under 18, even if a 17 year-old commits a depraved and torturous form of murder.
One of the biggest problems plaguing the Constitution is a majority of the Supreme Court has felt at liberty to fundamentally redefine provisions of the Constitution–like the Eighth Amendment–in accordance with what those justices determine are â€œthe evolving standards of decency that mark the progress of a maturing society.â€
First propounded by Chief Justice Earl Warren (who ironically was formerly Californiaâ€™s governor) in 1958, it has become the touchstone for Eighth Amendment cases at the Supreme Court.
Currently there are only five such justices, but whether the decision is 5-to-4 or 9-to-0, it carries the same force of striking down laws that some justices decide they donâ€™t think are fair. As Justice Antonin Scalia lamented regarding one of these cases in 2002, â€œSeldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.â€
There are two problems with such as approach to interpreting the Supreme Law of the Land. First, as Scalia publicly said in another setting, it assumes that all social change is progress for the better, rather than acknowledging that society can also degenerate with changes for the worse.
The second is that even if social standards are changing, that should have no bearing whatsoever on how a judge interprets the words in the Constitution. The American people choose what words will be enshrined in the Constitution, and the job of an unelected, politically unaccountable federal judge is to faithfully apply the public meaning of those words when the American public adopted them.
So when it comes to the Eighth Amendment, consult sources that confirm what the American people thought â€œcruel and unusual punishmentâ€ meant, and leave everything else to the democratic process. And since government officials are required to follow Supreme Court precedent, candidates probably need to consider proportionality as well.
Anyone who aspires to be California attorney general should understand these things, notwithstanding the importance of fighting public corruption. The voters of California would be well-served by a televised attorney general debate on the Constitution–between the Second Amendment and the Eighth Amendment, it looks like there could be some jaw-dropping answers on both sides of the aisle.