Clay Shirky
Tue, 23 Oct 2001 10:34:16 -0400 (EDT)

> Next question: Should it be?  Should we all be able to vote directly on
> whether the death penalty should exist, whether torture is allowed, and
> whether abortions are legal?  I have some mixed sympathy for countries that
> decide not to put things to vote if the result would be something like the
> death penalty.  Case in point: apparently most Euro countries do not allow
> the death penalty, although if they voted on it, most would find their
> voters in favor of it.

This is the Madisonian debate, namely the worry about how to
differentiate democracy from mob rule. The usual solution (it may in
fact be the universal solution of all democracies -- Robert Dahl
probably covers that somewhere, and when my wife gets home I'll ask
her...) is to have certain standards which are considered
foundational, as in "We hold these truths to be self-evident...", and
to put alteration of those principals out of reach of momentary
passions by constructing elaborate mechansims of ratification. 

Flag-burning is such an issue. Since banning it obviously violates the
First Amendment, it will require a constitutional amendment to change
it. What you want is a Supreme Court ruling that the death penalty
violates the 8th amendment, so that enacting a death penalty would
require amending the constitution.

We came _this_ close <IMG SRC="thumb_and_forefinger.gif"> some years
ago (late 70s, early 80s) and lost on what I remember as a 5-4 split,
with one of the Justices later regretting his decision after he'd left
the court, but I don't remember who.