Legalized Pickpocketing

On Sun, 30 Dec 2007 13:01:36 -0800, Erik Max Francis <max.RemoveThis@alcyone.com>
wrote:

>John Schilling wrote:

>> We can make the pretty good guess that it does not disallow anything that
>> was popular at the time it was established, and that it has been amended
>> as necessary to allow things that were once forbidden but have since
>> become sufficiently popular.

>> Also, if it works like the United States Constitution, then in the very
>> specific area of appropriate punishments for crimes, that something is
>> common *does* mean it's constitutional. A punishment has to be cruel
>> *and unusual* to be uncostitutional here.

>That doesn't explain why the death penalty was ruled unconstitutional
>for a time here. While not unusual at all, the Supreme Court ruled that
>the way it was employed was unconstitutional since it was unfair.

There was not then, and is not now, any crime in the US code for which
death is the *usual* penalty. Well, arguably things like treason and
(literal) piraacy, but those were rare enough that we didn't have a
statistically significant sample of what was usual.

So, whether or not the death penalty was constitutional, hinged on the
issues of A: whether it was cruel, or B: whether one could define a set
of special circumstances under which the death penalty was still usual.


--
*John Schilling * "Anything worth doing, *
*Member:AIAA,NRA,ACLU,SAS,LP * is worth doing for money" *
*Chief Scientist & General Partner * -13th Rule of Acquisition *
*White Elephant Research, LLC * "There is no substitute *
*John.Schilling@alumni.usc.edu * for success" *
*661-951-9107 or 661-275-6795 * -58th Rule of Acquisition *
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In article <m8mgn39hgcc64dcu3447jj4r99ihq27rfi RemoveThis @4ax.com>,
Howard Brazee <howard RemoveThis @brazee.net> said:

>> Or: that you can sloppily refer to "the law" when you mean
>> "statutory law"...
>
> What are the alternative types of laws? Do people refer to those
> alternatives as "the law" the way we do statutory laws?

There's the Constitution, for one. It's part of the law -- the
apex of it, in fact -- but it wasn't created the way that federal
statutes are, by the majority-vote approval of each of the two
houses of Congress plus either (1) the active or passive consent of
the President or (2) a two-thirds vote in each house of Congress
overriding a veto by the President.

And there's also the "common law," which is the sum of judicial
rulings that have (generally speaking) interpreted statutes or
filled in gaps between them.

--
William December Starr <wdstarr RemoveThis @panix.com>
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John Schilling wrote:

> There was not then, and is not now, any crime in the US code for which
> death is the *usual* penalty. Well, arguably things like treason and
> (literal) piraacy, but those were rare enough that we didn't have a
> statistically significant sample of what was usual.

High treason is actually listed in the Constitution itself as a capital
offense.

--
Erik Max Francis && max.TakeThisOut@alcyone.com && http://www.alcyone.com/max/
San Jose, CA, USA && 37 18 N 121 57 W && AIM, Y!M erikmaxfrancis
You'll survive / A true Darwin star
-- Des'ree
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Erik Max Francis wrote:

> John Schilling wrote:
>
> > There was not then, and is not now, any crime in the US code for which
> > death is the *usual* penalty. Well, arguably things like treason and
> > (literal) piraacy, but those were rare enough that we didn't have a
> > statistically significant sample of what was usual.
>
> High treason is actually listed in the Constitution itself as a capital
> offense.

So a law repealing the death penalty for high treason would be
unconstitutional?
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Tim Bruening wrote:

> So a law repealing the death penalty for high treason would be
> unconstitutional?

Yep. It would have to be a constitutional amendment.

--
Erik Max Francis && max RemoveThis @alcyone.com && http://www.alcyone.com/max/
San Jose, CA, USA && 37 18 N 121 57 W && AIM, Y!M erikmaxfrancis
It's a winter day / Five years too late
-- En Vogue
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On Dec 31, 7:53 pm, Erik Max Francis <m....TakeThisOut@alcyone.com> wrote:
> Tim Bruening wrote:
> > So a law repealing the death penalty for high treason would be
> > unconstitutional?
>
> Yep.  It would have to be a constitutional amendment.
>
> --
> Erik Max Francis && m....TakeThisOut@alcyone.com &&http://www.alcyone.com/max/
>   San Jose, CA, USA && 37 18 N 121 57 W && AIM, Y!M erikmaxfrancis
>    It's a winter day / Five years too late
>     -- En Vogue

That is *not* corect. The US Constitution, Articl III, section 3
provides that:

<start quote>
Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in
open Court.

The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted.

<end quote>


Congress can, by statute, make trason a crime punmished by death, or
by imprisonment for life or some lesser period, or by fine, or by
community service if they so desire, or indeed by slavery. (Art XIII
sec 1 says "Neither slavery nor involuntary servitude, *except as a
punishment for crime whereof the party shall have been duly
convicted*, shall exist within the United States..."). No admendment
is needed. What congress cannot do is make conviction of trason
punishable by removing property rights or civil rights from the family
or heirs of the person convicted. This is because forfieture of
inherited land and other rights was often imposed on the entire family
line of a convicted traitor in England under the Tudors and later
monarchs (and sometimes earlier ones, too).

There is no crime for which the US constitution *requires* a death
penalty, nor even one fro which it *explictly* authorizes one. That is
left to either legislative judgement, or judicial interpreation.

-DES
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How do I contact Larry Niven to ask him to explain the history of how
pickpocketing became legal on Earth?
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Tim Bruening wrote:

> How do I contact Larry Niven to ask him to explain the history of how
> pickpocketing became legal on Earth?

You don't, if you're going to take seven years to actually finish the
conversation.

--
Erik Max Francis && max.TakeThisOut@alcyone.com && http://www.alcyone.com/max/
San Jose, CA, USA && 37 18 N 121 57 W && AIM, Y!M erikmaxfrancis
This business will get out of control. It will get out of control and
we'll be lucky to live through it. -- Adm. Josh Painter
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On Dec 30 2007, 9:49 pm, Erik Max Francis <m....TakeThisOut@alcyone.com> wrote:
> William December Starr wrote:
> > Or: that you can sloppily refer to "the law" when you mean "statutory
> > law"...
>
> You can nitpick to your heart's content, but I made the distinction I
> was making perfectly clear, and how it was relevant to the subject at
> hands. Word games may make you feel better, but don't address the
> obvious fact that it still completely misses the entire point of what I
> was saying, which was quite clear as a distinction between two branches
> of government.

The "nitpick" is actually quite useful because it addresses an
important point.

The purpose of the judiciary *is* to uphold the law. All of it. It
strikes down statutes when they conflict with the constitution, to the
inconvenience of legislatures, it is true. But it also upholds
statutes when they conflict with the practice of bureaucrats or
policemen, also to the inconvenience of legislatures.

Therefore, to be accurate, what you should have said is that the
purpose of the judiciary is to uphold the law - not to implement the
will of the government of the day. Often, but not always, when the law
conflicts with the wish of the government of the day, the source of
that conflict will be directly in the Constitution itself.

Of course, it's certainly true the courts don't "uphold the law" in
quite the same sense as the police "uphold the law". The police are
focused on apprehending and convicting offenders, solving and
preventing crimes. The judiciary is focused on ensuring the law is
followed according to its rules, whether or not the impact is
necessarily positive from the point of view of crime prevention.

But that fact can be a source of confusion if distinctions are not
carefully made.

John Savard
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Erik Max Francis wrote:

> John Schilling wrote:
>
> > There was not then, and is not now, any crime in the US code for
> > which death is the usual penalty. Well, arguably things like
> > treason and (literal) piraacy, but those were rare enough that we
> > didn't have a statistically significant sample of what was usual.
>
> High treason is actually listed in the Constitution itself as a
> capital offense.

Not required, of course.



Brian

--
If televison's a babysitter, the Internet is a drunk librarian who
won't shut up.
-- Dorothy Gambrell (http://catandgirl.com)
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Default User wrote:

> Erik Max Francis wrote:
>
>> John Schilling wrote:
>>
>>> There was not then, and is not now, any crime in the US code for
>>> which death is the usual penalty. Well, arguably things like
>>> treason and (literal) piraacy, but those were rare enough that we
>>> didn't have a statistically significant sample of what was usual.
>> High treason is actually listed in the Constitution itself as a
>> capital offense.
>
> Not required, of course.

Granted.

--
Erik Max Francis && max DeleteThis @alcyone.com && http://www.alcyone.com/max/
San Jose, CA, USA && 37 18 N 121 57 W && AIM, Y!M erikmaxfrancis
This business will get out of control. It will get out of control and
we'll be lucky to live through it. -- Adm. Josh Painter
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On Jan 1, 12:00 pm, "Mike Schilling" <mscottschill... RemoveThis @hotmail.com>
wrote:
> It is defined in the Constitution, but no particular penalty is
> described for it:

> ---------------------------------
> Section III.3 - Treason Note
> Treason against the United States, shall consist only in levying War
> against them, or in adhering to their Enemies, giving them Aid and
> Comfort. No Person shall be convicted of Treason unless on the
> Testimony of two Witnesses to the same overt Act, or on Confession in
> open Court.
> The Congress shall have power to declare the Punishment of Treason,
> but no Attainder of Treason shall work Corruption of Blood, or
> Forfeiture except during the Life of the Person attainted.
> ----------------------------------

> Note that the purpose of this section is to limit the legal definition
> of treason to genuinely treasonous acts, rather than allowing it to be
> charged Anne Coulterishly.

That limitation is indeed broad, however.

It prevents people from being convicted of treason, for example, who
corrupt the democratic system, such as people who stuff ballot boxes,
government officials who demand bribes, or police officers who plant
evidence. Also, the requirement of witnesses to the treasonous act
itself lets out treason that is detected by careful police work and
modern scientific evidence.

At least, though, there are other serious offences of which those who
are only caught with difficulty in betraying America's defense secrets
can be convicted. So it's not anything like, say, requiring four
(male!) witnesses to convict someone of rape.

John Savard
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Erik Max Francis wrote:
> James Kuyper wrote:
>
>> Erik Max Francis wrote:
>>> William December Starr wrote:
>> ...
>>>> The judiciary is constrained by the law. If the law sucks, it's the
>>>> lawmakers that have failed.
>>>
>>> Not in a government where the judiciary acts as an additional check
>>> and balance, like in the United States. The judiciary has the duty
>>> of upholding the constitution, not the law. If a law is found
>>> unconstitutional by the judiciary, then it is null and void.
>>
>> In the US, the constitution is a special kind of law, but it is not
>> something distinct from the law. It is the supreme law, overriding any
>> lower level laws that conflict with it, but it is still law.
>
> And, once again, eliminating the distinction between constitutional law
> and statutory law completely misses the point of the distinction I was
> making.

No, I recognized the distinction you were making, and rejected it as
irrelevant. William Star's comment was about the law; not statutory law
or constitutional law - just law in general. And as such, it was a
correct statement, and pointing out that "the law" can be subdivided
into smaller categories in no way detracts from the truth of his
statement. The content of the law, as a whole, is fundamentally the
responsibility of the lawmakers - the power of the judiciary is
restricted to resolving conflicts between the different laws that
various lawmakers have passed. When such conflicts exist between the
Constitution and lesser laws, the Constitution is supreme, but it is
just a much the product of lawmakers as any other law.
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