Justice Roberts here says out loud the real problem with "living constitutions" -- the fact that a new set of justices can change laws that have been on the books for centuries, just because they feel like it. A law should mean what it says, and we should change it by actually changing the law, not pretending its words now mean something else.

It's clear Dahlia hates this notion of reversing course, but ignoring it does her no credit. Its quite clear the Framers were more or less just fine with the death penalty, and perhaps other nastiness we'd rather not think about -- things we have passed laws against.

We know she hates the death penalty, and I'm no fan of it anymore myself, but to pretend that it has suddenly become unconstitutional on its face is simply ludicrous. Either pass a new amendment (an admittedly slow and messy, but ultimately more democratic process) or get all fifty states to do away with executions, while hoping the SCOTUS will chip away at the more egregious practices of the "machinery of death".

Though by no means an expert on the constitution, I would think that the word 'unusual' provides justification for both remaining loyal to the original intentions and wording and also declaring unconstitutional a punishment that was nonetheless legal in the second half of the eighteenth century.

Capital punishment itself may not be considered "unconstitutional." But the uneven administration of it should be. Equality under the law means justice should be an objective standard under which all are held to; unfortunately, whether or not you are convicted and executed often depends on how good your lawyer is rather than an objective standard of justice. Until all defendents can be guaranteed not only a lawyer, but a decent one, we ought to put executions on hold.

I'll never forget the Texas case in which a court-appointed attorney was found sleeping during his defendent's murder trial. The defendent was convicted and sent to death row; he appealed, arguing that his attorney did not perform his job adaquately. The Texas Supreme Court decided all the state had to do was grant him a lawyer; there was nothing in the law that said it had to be a good lawyer. That's terrible.

One thing that we (or at least I) sort of missed in the article amid Dahlia's grumping was that the ruling was not on the death penalty per se', but on the method of execution. So to treat this ruling as a harbinger is something of a red herring.