Law? What Law? We Doan Need No Steenkeeng Law!

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The Supremes today ruled, 5-4, that it is unconstitutional to execute anyone under the age of 18.

What was this based on? Allow Justice O'Connor to speak for me, because if I said it myself, no one would believe me: "The rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender."

That is, it was not based on law or fact. Oh sure, it was based on the 8th Amendment that we must refrain from cruel and unusual punishment, but that law does not say we cannot execute 17-year-olds. And it was based on the fact that many people and several states outlaw such executions, but while the court professes to uphold "the evolving standards of decency that mark the progress of a maturing society," no such consensus in this country exists on this point, and the court in so acting must do so descriptively, not prescriptively.

In fact, only 18 of the 38 states that have the death penalty have laws setting the minimum age at 18. The other 20 are all set at 17 or under, or have no minimum age expressed. It's unavoidably true that the SCOTUS is imposing its own will on the people, without basis in law or fact, but instead, as O'Connor said, merely on their own moral judgment, which is simply not good enough to overturn the laws created by people who too have their own moral judgments.

I hope that the states defy the courts and do it anyway, if they so choose. I am not in favor of the death penalty, but I am in favor of the states choosing it if that is their wish, and I am against the courts executing authority where they have none.

The court makes clear its intention to dispense with the idea of rule of laws, and instead enforce the rule of men, when it appealed to -- I wish I were making this up -- "international opinion." Again, I quote a dissenter, Justice Scalia:

The Court begins by noting that "Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18."

The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), which the Senate ratified only subject to a reservation that reads:

"The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age."

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.

But Scalia slightly misses the mark there. The Court does not hold the ability to join and ratify treaties, it simply decreed by fiat that it has the ability to make any laws it wishes, for whatever reason, without limitation of any kind. Because that's the only way this can been as a just and reasonable decision.

Again, Scalia:

Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's "own judgment" that murderers younger than 18 can never be as morally culpable as older counterparts. The Court claims that this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating Stanford." That supposed rule -- which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices' views -- was repudiated in Stanford for the very good reason that it has no foundation in law or logic.

And this is what our Supreme Court is today: people who care less about law than doing what they think is right. In other words, wannabe legislators.

What's especially interesting about this decision is that it comes on the heels of another case of the court usurping the legislative duty: in Kansas, the Supreme Court ruled that the legislature must increase its funding for schools, based on their state Constitution which says that the government must provide for adequate education, and a legislature-commissioned study which said far more money had to be spent to provide adequate education.

But that legislature said, well, we disagree with the study, as is their right. The Court said, well, we agree with it, so tough luck for you. But the Court doesn't get to make those decisions. That's for the legislature to decide, to weigh the evidence and make the right choice.

It's amazing to me that our High Court would say that Congress can do anything it likes in regard to copyright, and can define for itself what limited means, but that it cannot define for itself what cruel and unusual mean, especially when in the former Congress was actually making a de facto violation of the Constitutional principle, and in the latter, it is a matter of opinion, which varies wildly amongst the American people. Worse, that they consider international opinion more than national opinion, but apparently only because they happen to agree with the international opinion more.

I might as well finish up with Scalia:

In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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This page contains a single entry by pudge published on March 1, 2005 1:44 PM.

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