Althouse: A referendum on the death penalty...

May 5, 2006

A referendum on the death penalty...

In the state that has banned the death penalty since 1853 -- the longest ban in the United States.

20 comments:

MadisonMan said...: It seems like the legislature is shirking its duty when it does something like this. Aren't the elected to lead? Yet when they get a tough question (read: one that could get them booted from office) they say "Hey! Let's have the public decide!"; 5/5/06, 7:32 AM
Ann Althouse said...: I think it's more about attracting more people to the polls and making something an issue in the campaign. It's about Doyle, isn't it?; 5/5/06, 7:35 AM
Simon said...: I share what I take to be MadisonMan's hesitancy about direct democracy as tending to short-circuit the process of representative government (believe it or not, this is precisely what one of the men now seeking the Democratic nomination for the Presidency wants to see. Between Sandy Levinson and Mike Gravel, it's getting harder and harder for Democrats to pretend they aren't basically at war with the U.S. Constitution). However, if a state's constitution makes provision for a referendum, and the politicians think it will call "the contending sides of a national controversy to end their national division by accepting a common mandate rooted in" the expressed will of the majority, I don't see the harm in it.

As with the gay marriage referendums, I choose not to believe that those who are opposed to these referenda are actually opposed to the basic principle of self-government and participatory democracy, but rather, that they oppose the referenda for the far more practical reason that they are sure they will lose. After all, a referenda that rejected the death penalty would make it much harder to reinstate it any time soon, and a referenda showing overwhelming support for gay marriage would essentially take that issue out of play, just as overwhelming rejection at the ballot box has damped down the ID debate. A referendum lends an air of "this is what the people really think," because it asks a narrow and direct question, rather than the plethora of issues entailed in choosing which party to vote for. Hence, the only real reason to oppose it is if you think it will lend that air of legitimacy to the side that you aren't on.

If you disagree, what is the argument you'd make that in America, the people should not govern, that they should be led by elites who know what's best for them?; 5/5/06, 7:43 AM
Bissage said...: Overall, I think the statewide advisory referendum is a good thing. Still, I miss the old days when we used to have the statewide advisory rumble.

Ah, so many memories. So many happy memories.; 5/5/06, 7:50 AM
MadisonMan said...: we wouldn't want the people of Wisconsin to be asked to exercise democracy

The people won't be doing anything. The voters will.

Ann is right -- this is an effort by the Republicans to get their people to the polls. This and Gay Marriage should do it, I suppose. Unfortunate that they can't get people to the polls for something basic like good clean governing or small government or lower taxes or balanced budgets, or anything remotely close to a traditional republican idea.

Nope. The Republican Party is strictly the anti-gay, kill 'em after they're born Christianist party nowadays.; 5/5/06, 7:56 AM
Glenn Howes said...: Jim. The article says the death penalty would only apply when DNA evidence linked the convict to the crime. Is that what you mean by safeguard?

Regardless, I'm sure the state supreme court would throw out the death penalty. They have moral certainty and power.; 5/5/06, 7:57 AM
Ann Althouse said...: " I'm sure the state supreme court would throw out the death penalty."

Which will play very well in the coming judicial elections.; 5/5/06, 8:00 AM
MadisonMan said...: The article says the death penalty would only apply when DNA evidence linked the convict to the crime.

Can anyone say what that means, precisely? I can certainly envision a plausible scenario where DNA evidence would put a suspect at the scene of a crime he (or she) did not commit. What does link mean here?; 5/5/06, 8:06 AM
Simon said...: MadisonMan - don't you think it's a bit of a dodge to complain about why this question will be on the referenda as a substitute for actually engaging with the substance of what Jack, Jim and I have said? As an abstract matter - that is, forget for a moment that it's actually happening - what's your argument that this SHOULDN'T go to a referendum?

Glenn:
"I'm sure the state supreme court would throw out the death penalty. They have moral certainty and power."

Interesting - democrats aren't so keen on conjoining moral certainty and power when it comes to President Bush, are they?

It seems to me that moral certainly and power are a very potent mixture for a judge to resist. One can readily see the tension in Justice Blackmun's last few terms as he struggled to reconcile his moral disagreement with the death penalty, his awareness that it was constitutional, and the fact that he yet had in his power to abolish it. It takes a monumental effort of self-restraint to resist the temptation, and as we all now know, see Callins v. Collins, 510 U.S. 1141 (1994) at 1143-59 (Blackmun, dissenting from denial of cert), Justice Blackmun was not equal to the task. It remains to be seen if the Wisconsin Supreme Court is made of sterner stuff, but sadly, Justice Sykes - whoops, got ahead of myself there: Judge Sykes) has given us reasons to be doubtfull that they will.; 5/5/06, 8:23 AM
Bissage said...: MadisonMan asked whether anyone can explain precisely what it means to have DNA evidence "link" a defendant to a crime.

Sure, I can. When an authority figure declares that DNA evidence links a defendant to a crime, our brains all shut off and we do what we're told.

I jest in earnest because it's all about plausible deniability.; 5/5/06, 8:39 AM
Ann Althouse said...: Joe: "I just love it when Democrats call the democratic process "despicable." "

And I just love it when Republicans prefer direct democracy to "a Republican Form of Government." (The quote is from the U.S. Constitution.); 5/5/06, 9:14 AM
MadisonMan said...: what's your argument that this SHOULDN'T go to a referendum?

Why is a referendum needed? Why can't the legislature just pass something allowing the death penalty, and if the Governor vetoes it, use that veto as a cudgel? I guess I'm saying advisory referenda waste time.

If Legislators really meant to enact the death penalty, they'd amend the constitution directly to allow it. That takes the State Supreme Court out of the equation. It's not like Republicans are afraid of tampering with the Constitution -- but now suddenly they can't?

I vaguely recall that it's not too far past that a Republican was in the Governor's Mansion here (when he wasn't flying all over the state, that is). Why didn't the Legislature pass the death penalty then?; 5/5/06, 9:18 AM
Ann Althouse said...: AEDPA is the Anti-terrorism and Effective Death Penalty Act. That's how it got passed. The terrorism that produced the momentum was the Oklahoma City bombing. Before that, bills to limit habeas had been kicking around for years and were fended off.; 5/5/06, 10:18 AM
brian said...: I wouldn't call the democratic process "despicable," because I don't think that what happened in this instance could even be considered a form of representative democracy.

Democrats fumed that three Republican lawmakers who opposed the death penalty - Reps. Sheryl Albers of Reedsburg, Jerry Petrowski of Marathon and Judy Krawczyk of Green Bay - were asked to leave during the vote so it could pass without a majority.

"This is the most unbelievable and despicable maneuver in the 36 years that I've been here," said Rep. Marlin Schneider, D-Wisconsin Rapids.

It was not immediately clear why the three were excused before the vote.

It seems to me that what happened wasn't very "representative" or "democratic" by any stretch of the imagination.; 5/5/06, 10:59 AM
Richard Dolan said...: In reading this thread, I'm struck by how quickly the discussion sinks into assertions about the motives of players on either side. Those pushing the referendum are doing so because it's "about Doyle" or are trying to get out their base voters or something else. Presumably the opposition to the referendum oppose it because it's not "good for Doyle" or it's not good for them if the other side's voters show up and vote. I take it as a given that politicians have political motives for what they do. But here's a heretical thought: perhaps even politicians are sometimes driven to do what they do because they actually think it is the right thing to do.

Putting that little heresy aside, let's all just agree that (1) all of the political players have political motives (whether or not they have other ones), and (2) those of us with an interest in politics tend to look kindly on the motives of the home team and not so kindly on the motives of the opposing team.

Now that we're done with that, what's wrong with invoking a procedure, evidently made available by the Wisc state constitution, to put an important issue before the voters in a referendum? Nothing that I can see. Frankly, it's a nice contrast to see the voters consulted on an issue that, at its core, is all about moral values -- should the state ever take a life, is "eye for an eye" an unacceptable standard in today's world, does the incontestable fact that fallibility is the hallmark of every human institution including courts deciding capital cases make the imposition of capital punishment immoral? On all of those issues, it seems to me that the instincts of ordinary citizens are at least as reliable a guide as any pronouncement from a robbed priesthood. Good for Wisconsin that something important will be presented to the voters. Here in NY, the only ballot referenda we get to vote on typically relate to bond measures -- where the politicians ask us to approve, say, a Clean Water Act bond without disclosing that none of the money will be used to clean up any waterways -- but almost never anything like this Wisc referendum.; 5/5/06, 11:15 AM
Bissage said...: Richard Dolan: Damn, that was excellent!; 5/5/06, 11:55 AM
Danny said...: Perhaps we should have this referendum every year until the death penalty is made legal again. And after that we can have an annual referendum to abolish it again. And anyone who is against this plan is against democracy!; 5/5/06, 11:55 AM
Danny said...: Three members of the State Assembly were "asked to leave" from voting because of they oppose the death penalty. As a Wisconsinite, should I ignore that lapse of democracy in our legislative branch and be happy that I might get to vote on another referendum in November?; 5/5/06, 3:11 PM
Danny said...: I'm a novice when it comes to political theory but I would argue that the act of electing officials who then vote in the State Assembly embodies the represenative democracy of the United States far better than a public vote on the death penalty. The referendum greatly resembles an exercise of direct democracy, a system better designed for smaller institutions and organizations (I think...feel free to correct me as I haven't studied this).; 5/5/06, 4:09 PM
Simon said...: Joe said...
"Democracy is messy, Danny. Taking an issue away from the voters - see Roe v Wade - does not make it go away."

Precisely. "It used to be said that libraries filed French Constitutions among periodicals. The [proposed 500+ page] EU Constitution will someday seem as dated as a yellowing newspaper, because it gives canonical status - as fundamental rights elevated beyond debate- to policy preferences, even to mere fads, of the moment." George F. Will, The Slow Undoing: the assault on, and underestimation of, Nationality in THE NEOCON READER (I. Stelzer, ed.) (2004), pp.129-139, 133. Our Constitution has endured in a way that few other constitutions have endured precisely because - until very recently - we resisted such temptations. We understood that not every right or activity must be protected by the Constitution in order for it to be protected in some manner (which is precisely what I argue the ninth amendment's injunction against disparaging other - i.e. not constitutionally protected - rights means), but rather, that the Constitution set a floor and a structure for the American polity. We abandon such thinking at our peril, but in recent decades, a compulsion that was once a worrying aberation (see, e.g., Lochner) has become comonplace.; 5/5/06, 6:48 PM