Conservatism
It is the 50th anniversary of the Harper Lee modern classic, To Kill a Mockingbird. A question recently raised is whether the Tea Party movement should make racial preferences/affirmative action an issue. Whatever they choose to say, they should embrace this book, on school reading lists for almost 50 years. Hero Atticus Finch is devoted to the rule of law in a way foreign to our current oppressors and Supreme Court nominees. Conservatism, whether of the more traditional sort or the more activist Tea Party variety, is focused on restoring the rule of law--saving it from bureaucracy, command-and-control economics, hijacked Congresses, runamok judges, and idolators of foreign gods.
So, at Tea Party rallies, everyone come with your copy of To Kill a Mockingbird. Singing "We Shall Overcome" would not be a bad idea either.
A related item is lefty Jacob Weisberg's distinction between western (property rights-Tea Party) conservatives and southern conservatives--the first he characterizes by Goldwater and Palin, the latter by George Wallace. The westerners (here he mentions Harry Jaffa) used to have intellectual credentials, but now they are "anti-intellectual." Of course Weisberg wants moderation on the right.
To Kill a Mockingbird is an excellent book, and Atticus Finch is an admirable and model attorney. His closing argument is superb.
I am not sure I disagree with the Supreme Court when it struck down life sentences for teenagers in Florida. And I can understand if a judge(Chatigny) thinks on the basis of new evidence that a defendant is too mentally unstable to face punishment, that he might over-react if the defense attorney simply follows along with the clients wishes.
On the other hand Coker v. Georgia 433 U.S. 584 was almost certainly wrongly decided. This was the case deciding that rape could not be a capital offense, because such punishment would be cruel and unusual. While the courts reasoning about the legislative intent on preventing rape from being a capital offense is solid enough, so much of the issue is how the question is presented: Burger in the dissent nails it: “Does the eight amendment’s ban against cruel and unusual punishment prohibit the state of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime and who has not hesitated to escape confinement at the first available opportunity? Whatever one’s view may be as to the State’s constitutional power to impose the death penalty upon a rapist who stands before a court convicted for the first time, this case reveals a chronic rapist whose continuing danger to the community is abundantly clear.”
I think a prisoner on a life sentence should have been eligible for the death penalty if during his escape he does so much as steal a pack of gum(or even if he doesn‘t steal a pack of gum), this is because when he was sentenced to life in prison it was effectively a death sentence. Society had maxed out the punishment. The majority opinion essentially provided no extra punishment for the escape, rape and attempted murder. While it is not mentioned in the case this violates the 4th Rule of Jeremy Bentham’s Introduction to the principles of morals and legistlation, namely that: The punishment should be adjusted in such a manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it. Criminals serving life sentences should thus be restrained from escaping by the possibility of receiving a death sentence, had it perhaps simply been a stolen piece of gum, the court might not have been in error since the escape and the theft could be punished by solitary confinement and other priviledges. As it is the message sent in Coker was that if you escape and rape someone you get a free pass.
Getting criminal law right is no easy task, but part of the reason the eight amendment has been interpreted so broadly is the history preventing To Kill a Mockingbird from being pure fiction. That is the criminal justice system has punished minorities and lower income groups more harshly. Of course on the other hand tort law unduly burdens the rich(doctors, lawyers, bankers) because you can’t get blood from a beet, if you are hit by a drunk driver nine times out of ten you are out of luck, unless he is driving a Mercedes. A great majority of those who would not cite Bentham, would like to maintain that there is a huge moral/fundamental distinction between criminal law and tort law. But if fundamentally Bentham’s 4th rule is correct and punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it, then a additional reason why the criminal justice system disproportionately punishes the poor and minorities is that these are not really restrained by tort law. O.J. Simpson escaped the criminal law, but was punished in the civil trial. No matter how much a rich man looses, he does not risk sinking into the pit that occurs when you are no longer cognizant of still having something additional to lose. It is quite possible that the law induces the rich, middle class and upper middle class to always choose the least mischievous of two offenses.