Infinite MonkeysThe Supreme Court ruled 5-4 today that a Louisiana law imposing capital punishment for child rape is unconstitutional. Justice Anthony Kennedy, writing for the majority, asserts that “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." Is that so? More brutal than the rape of a defenseless child?
Ed Whelan over at Bench Memos rightly describes Kennedy's 36-page opinion as "insufferable blather." Matthew Franck picks up Whelan's meme and runs with it. "These are the accents of the moralist and the legislator. They are not those of a judge adjudicating a case under the law of the Constitution," Franck writes. "But Anthony Kennedy has never known the difference."
Matter of fact, Kennedy doesn't know his history, either. "Evolving standards of decency" -- God, I hate that phrase -- "that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime," Kennedy writes.
Franck notes the phrase extension of the death penalty. "In truth," Franck writes, "what the Court has been doing for several decades now is arrogating to itself the right, under some alleged authorization flowing from the Eighth and Fourteenth Amendments, to progressively restrict the imposition of the death penalty, from its historic application in many kinds of cases at the time of the founding, to just one class of cases today, the narrowest category of aggravated murders."
But when "evolving standards of decency" are involved, who needs intellectual honesty? Me, I could use a bucket.
Posted by Ben at June 25, 2008 10:50 AMOutstanding post, Ben. It is fitting that the case in question is called Kennedy v. Louisiana, for it is truly Justice Anthony Kennedy versus the desire of the people of Louisiana to govern themselves. (That notion used to be taken as a constitutional given. No more.)
Kennedy's obnoxious bit about "evolving standards of decency" is exceptionally galling. It is the job of American society to establish "standards of decency" -- and in cases where such standards have legal force, to do so through their elected representatives. It is not the job of a single justice to look upon the land, see what standard of decency he wishes to see, and then insert it into the Constitution.
If Justice Kennedy wants to "evolve" the death penalty into oblivion, he should petition his government. Or perhaps support anti-death penalty groups and go on a speaking tour. That's what ordinary citizens do. But, of course, it is increasingly clear on this court that Kennedy does not see himself as an ordinary citizen, but as an enlightened ruler.
Posted by: Dr. Zaius at June 25, 2008 12:29 PM"It is not the job of a single justice to look upon the land, see what standard of decency he wishes to see, and then insert it into the Constitution."
And, here am I, not necessarily a friend of Louisiana or the death penalty for rapists, wondering: wither state's sovereignity? Are state governments considered mature enough to make any decisions for themselves anymore? It seems as thought the Federal government now thinks of states as cute, retarded children, who can be allowed to pretend to make decisions as long as the decisions are not actually important (I'm an excellent driver -- slow on the driveway!).
What's the endpoint?
Posted by: Wry Mouth at June 26, 2008 01:00 AM"What's the endpoint?"
Whatever our robed masters say it is.
Posted by: Ben at June 26, 2008 01:09 AM