January 24, 2009

Procedural justice

Still more baby mama perspectives, this time from Marquette University professor of law Michael O'Hear (one of whose scholarly specialities is sentencing law and policy). Very interesting stuff.

Of course, had the court of appeals imported into its decision the social sciences literature that Prof. O'Hear mentions, some observers would have thrown a hairy fit on those grounds alone.

Personally, I don't have a problem with the courts doing that — so long as it's empirically sound — and neither did the framers of the federal sentencing guidelines, as Prof. O'Hear demonstrates.

The body of law should, and does, evolve. I'm amused by those who deride the strawman of "living Constitution proponents." The text of the Constitution may not change, but when it finds application in a changing and (hopefully) maturing society, those results may vary.

Not because the Constitution has changed, but because we have.

12 comments:

Anonymous said...

Just out of curiosity, how have we changed?

illusory tenant said...

Let's see ... we're burning fewer witches?

Other Side said...

Let's see ... we're burning fewer witches?

There are some who think that's a mistake.

Anonymous said...

More tolerance is the major change you see to justify an evolving interpretation of the constitution?

Brew City Brawler said...

Greater tolerance=burning fewer witches?

illusory tenant said...

Anon, wouldn't you say the people's idea of what constitutes "cruel and unusual" has changed somewhat since the 18th century?

I mean, assuming you're not a senior attorney with the Bush Justice Department ...

Anonymous said...

"people's idea of what constitutes "cruel and unusual" has changed somewhat since the 18th century?"

It appears you're still talking tolerance as your only justification to change the constitution.

illusory tenant said...

I never said a thing about changing the Constitution.

Other Side said...

The text of the Constitution may not change, but when it finds application in a changing and (hopefully) maturing society, those results may vary.

I thought you were pretty clear, Tom.

Anonymous said...

I am sorry; you did say the constitution does not change.

I meant to say it appears that tolerance is your only justification for changing what the constitution means.

illusory tenant said...

Anon, what process is due?

Anonymous said...

IT -

How have we changed?