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January 23, 2006

Of sentencing interest in the latest Harvard Law Review

The January issue of the Harvard Law Review is now on-line here, and there are two items that should be of particular interest for sentencing folks:

January 23, 2006 at 05:13 PM | Permalink


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Professor Stuntz softshoed, where a swift kick should have been applied, the Constitution and Bill of Rights are sometimes hard to swallow, but swallow we must, for we are a nation of laws and must never become a nation of politics.

“It seems we have been looking through the wrong end of the telescope.
Judges, lawyers, and scholars alike find it easy to spot the
many ills that afflict American politics. Hence the temptation to see
politics as a disease and constitutional law as its cure. But the metaphor
is backward. It is law, not politics, that risks stifling experiment
and innovation in America’s criminal justice system, and probably in
other areas as well. As between more constitutionally sensitive politics
and a more politically sensitive Constitution, the latter is much the
more urgent need. As they administer their legal medicines, Supreme
Court Justices would do well to remember that, and to heed a piece of
ancient medical wisdom: Physician, heal thyself.”
Professor Bill Stuntz’s article entitled The Political Constitution of Political Justice.

The Supreme Court should get out of legislating, Justice Breyer rewriting the SRA in United States v. Booker, 543 U.S. 220, Part II, amending the mandatory guidelines to advisory where the Congress had rejected such a scheme. The Supreme Court is the Constitutional Court and must find an Act of Congress, either constitutional or unconstitutional, not rewrite it to suit its own concept of what they think should have been written. The Supreme Court in Apprendi and Blakely , did not rewrite the State sentencing scheme to meet its concept of constitutionally acceptable advisory sentencing, but found the state’s system unconstitutional and left it up to the state’s to legislatively correct the error. The separate sovereignties like the separation of powers, limit the Supreme Court’s authority to write legislation. If legislating is the role, five of the Justices seek, it is through election, not appointment. Justice, don’t elect thyself!

Posted by: Barry Ward | Jan 24, 2006 10:35:10 AM

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