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Capital punishment still exists for federal crimes, which is why the Boston bomber was given the death penalty despite his offense occurring in Massachusetts, w

Capital punishment still exists for federal crimes, which is why the Boston bomber was given the death penalty despite his offense occurring in Massachusetts, which doesn't have it at the state level. Also, federal law isn't simply a grab bag of "really important" laws, with states only existing to handle smaller, more trivial things. In theory, federal law is restricted to addressing the things enumerated in the Constitution. In practice, one of those is regulating interstate commerce, which since [1] has steadily increased in scope. Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. 1: http://en.wikipedia.org/wiki/Wickard_v._Filburn http://en.wikipedia.org/wiki/Wickard_v._Filburn

dragonwriter 11y ago
> In theory, federal law is restricted to addressing the things enumerated in the Constitution. [...] Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. Considering 8th Amendment incorporation under the 14th Amendment and the enforcement clause of the 14th Amendment, that shouldn't be too difficult, without even coming anywhere near the Commerce Clause.
- tptacek 11y ago
  Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. Meanwhile: if capital punishment ever is held to be "cruel and unusual", no federal legislative action will be needed to abolish it; SCOTUS will do it by fiat.
  - dragonwriter 11y ago
    > Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. SCOTUS has never held that disadvantaging the disabled is intrinsically a violation of the Due Process Clause of the 14th Amendment (relevant, as the provision under which it has incorporated the 8th against the states), nonetheless, it has held that Congress acted within its power under the enforcement clause of the 14th (and did not violate State reserved powers under the 11th) in, under the ADA, requiring access to courthouses. While the enforcement clause of the 14th is a fairly lightly litigated power, its pretty clear that it does extend beyond the things where legislation is not necessary because any violation of the law Congress might impose to under the enforcement clause would already necessary be prohibited by the bare text of the Amendment, which seems to be your position.
    - tptacek 11y ago
      Prepared to be wrong, but: I don't think the federal government can pass laws that bind on state criminal sentencing laws, or on state judges. For instance, SCOTUS has held that federal sentencing ranges don't bind state courts, nor do sentences falling outside those ranges fail for being unreasonable. The federal government can bind state courts not to violate the constitutional rights of the accused, and so for instance Washington can't pass laws requiring judges to apply mandatory sentences based on facts not established by juries. But those actions belong to the federal courts, not Congress. I don't think Congress can pass a law banning state capital sentences.
      - learc83 11y ago
        I bet they could something...something... interstate commerce. Ban the import and sale of lethal injection drugs, ban the manufacture of gas chambers and electric chairs, and force states to use firing squads at the very least.
mindslight 11y ago
Wickard v. Filburn is one of the federal government's great Godel contradictions, allowing it to prove anything thus rendering the law meaningless. Under the dubious justification of the Tsarnaev case, shoplifting candy from the corner store is under federal jurisdiction since in the age of social media it could incite people in other states to do the same.
- tptacek 11y ago
  You're implying Filburn gives the federal government unfettered power to regulate commerce, but it doesn't; there are limits both in Filburn and in subsequent SCOTUS cases. See for instance the syllabus for US v Lopez (95).
  - mindslight 11y ago
    Those limits were created by the federal government itself. It can always revise them as needs change, and is thus in reality unconstrained. This is akin to kids establishing rules while playing make believe.
    - tptacek 11y ago
      Those limits were held to exist by SCOTUS, not by statute.
      - mindslight 11y ago
        And?
        tptacek 11y ago
        It's not very interesting to argue that a state might change its mind on some question, because that's always true, and there's no way to rebut or even engage that argument. On the other hand, I thought maybe you were suggesting that Congress could pass a law relying on the "Godel inconsistency" of Filburn to usurp state authority. Well, no, they can't; they're bound by the judicial precedents that fence Commerce Power authority in.

dragonwriter 11y ago

> In theory, federal law is restricted to addressing the things enumerated in the Constitution. [...] Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. Considering 8th Amendment incorporation under the 14th Amendment and the enforcement clause of the 14th Amendment, that shouldn't be too difficult, without even coming anywhere near the Commerce Clause.

tptacek 11y ago
Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. Meanwhile: if capital punishment ever is held to be "cruel and unusual", no federal legislative action will be needed to abolish it; SCOTUS will do it by fiat.
- dragonwriter 11y ago
  > Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. SCOTUS has never held that disadvantaging the disabled is intrinsically a violation of the Due Process Clause of the 14th Amendment (relevant, as the provision under which it has incorporated the 8th against the states), nonetheless, it has held that Congress acted within its power under the enforcement clause of the 14th (and did not violate State reserved powers under the 11th) in, under the ADA, requiring access to courthouses. While the enforcement clause of the 14th is a fairly lightly litigated power, its pretty clear that it does extend beyond the things where legislation is not necessary because any violation of the law Congress might impose to under the enforcement clause would already necessary be prohibited by the bare text of the Amendment, which seems to be your position.
  - tptacek 11y ago
    Prepared to be wrong, but: I don't think the federal government can pass laws that bind on state criminal sentencing laws, or on state judges. For instance, SCOTUS has held that federal sentencing ranges don't bind state courts, nor do sentences falling outside those ranges fail for being unreasonable. The federal government can bind state courts not to violate the constitutional rights of the accused, and so for instance Washington can't pass laws requiring judges to apply mandatory sentences based on facts not established by juries. But those actions belong to the federal courts, not Congress. I don't think Congress can pass a law banning state capital sentences.
    - learc83 11y ago
      I bet they could something...something... interstate commerce. Ban the import and sale of lethal injection drugs, ban the manufacture of gas chambers and electric chairs, and force states to use firing squads at the very least.

mindslight 11y ago

Wickard v. Filburn is one of the federal government's great Godel contradictions, allowing it to prove anything thus rendering the law meaningless. Under the dubious justification of the Tsarnaev case, shoplifting candy from the corner store is under federal jurisdiction since in the age of social media it could incite people in other states to do the same.

tptacek 11y ago
You're implying Filburn gives the federal government unfettered power to regulate commerce, but it doesn't; there are limits both in Filburn and in subsequent SCOTUS cases. See for instance the syllabus for US v Lopez (95).
- mindslight 11y ago
  Those limits were created by the federal government itself. It can always revise them as needs change, and is thus in reality unconstrained. This is akin to kids establishing rules while playing make believe.
  - tptacek 11y ago
    Those limits were held to exist by SCOTUS, not by statute.
    - mindslight 11y ago
      And?
      - tptacek 11y ago
        It's not very interesting to argue that a state might change its mind on some question, because that's always true, and there's no way to rebut or even engage that argument. On the other hand, I thought maybe you were suggesting that Congress could pass a law relying on the "Godel inconsistency" of Filburn to usurp state authority. Well, no, they can't; they're bound by the judicial precedents that fence Commerce Power authority in.