Jewish World Review March 4, 2005 / 23 Adar I, 5765

Robert Robb

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Supreme Court ‘legislates’ a death blow to constitutional fundamentals | In striking down the death penalty for those under the age of 18, the U.S. Supreme Court continued its transformation from a court into a super legislature, if that process is not by now complete.

I say that as an opponent of the death penalty who believes it should be abolished entirely.

I oppose the death penalty because I believe that the modern judicial system is too imprecise, too fraught with potential error, to be entrusted with an irreversible penalty. I believe that making life without parole the maximum penalty is the more prudent, just course.

But that does not make the death penalty unconstitutional, in its entirety or as applied to 16 and 17 year olds (the court had previously declared the death penalty unconstitutional for those under the age of 16). It's a decision for legislatures to make, not judges.

In preempting legislatures on the basis of the cruel and unusual punishment clause of the 8th Amendment, the court did not look to what that encompassed at the time the Bill of Rights was adopted, nor to the ordinary meaning of the words as applied to today's world.

Instead, the court has determined that what constitutes cruel and unusual punishment is to be based upon "the evolving standards of decency that mark the progress of a maturing society."

The haughty tenor of the court's formulation is revealing. Those who disagree with the court's judgment are, by inference, less decent, less evolved, less progressive and less mature than the justices.

And, if a member of a real legislature, irrelevant.

As recently as 1989, the court had upheld the constitutionality of the death penalty for 16 and 17 year olds. So, what changed?

Four states decided to limit the application of the death penalty to those 18 years old and older. According to the court, that means that there is now a national consensus that applying the death sentence to those under 18 constitutes cruel and unusual punishment.

But 20 states still allow the death penalty to be considered for 16 and 17 year olds. That constitutes, not a consensus, but a country fairly narrowly divided on the issue.

What if those four states changed their minds and again applied the death penalty to those under 18? Would that mean that the death penalty for 16 and 17 year olds would suddenly become constitutional again?

But, of course, that cannot happen. The court would strike each of them down sequentially as unconstitutional.

Former Soviet premier Leonid Brezhnev advanced an eponymous doctrine: The capitalist world was up for grabs. But once a country went communist, it could never go back.

The court has its own Brezhnev doctrine: Standards of decency can evolve until we like them. Then they are locked into place and contrary movement is unconstitutional.

What really has changed is the mind of Justice Anthony Kennedy. He joined in the 1989 decision upholding the constitutionality of the death penalty applying to 16 and 17 year olds. He wrote Tuesday's decision declaring it unconstitutional.

In addition to inventing a national consensus that clearly does not exist, the court based its decision on the fact that 16 and 17 year olds are more immature and irresponsible than adults, and thus less culpable for their behavior. Having had a couple of children recently pass through those ages, I'll stipulate to the description. But the sort of depraved murders for which the death penalty is possible are hardly juvenile antics.

As Justice Sandra Day O'Connor painstakingly points out in dissent, youthfulness is a mitigating factor juries must weigh in deciding whether to apply a death sentence. Just because, as a cohort, 16 and 17 year olds are less mature and responsible than adults doesn't mean that a particular juvenile hasn't exhibited culpability for a particular depraved murder sufficient to warrant the death penalty.

According to Kennedy's majority opinion, juries cannot be trusted to make such judgments because they might be overpowered by the "brutality or cold-blooded nature of any particular crime." Why the nature of the crime wouldn't likewise overpower the other decisions about aggravating and mitigating factors juries have to make in the death penalty math previous court decisions have imposed, Kennedy doesn't bother to explain. v It's really quite simple. A majority of the court believes that the death penalty should not apply to those under the age of 18. And they, acting as a super legislature, have made it so.

Donate to JWR

Unfortunately, people react to Supreme Court decisions based primarily on whether they like the result, not on the basis of the reasoning, its appropriateness or its implications.

So, predictably, death penalty opponents will cheer this decision; death penalty supporters will condemn it.

But, in reality, something more important than even the weighty issue of whether those under the age of 18 are subject to the death penalty is at stake.

If the Constitution has no enduring meaning, then it has no enduring protections for the liberties it is intended to secure.

JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here.


02/24/05: Europe is no pillar of U.S. security
02/18/05: Memo to the Dems: Greenspan ‘the Oracle’ is not the guy you want
02/11/05: Federal ‘belt-tightening’: You call that an austerity budget?
02/07/05: Did I mean that? — Why Bush ‘encouraging’ Iran to rebel should be done with caution
02/04/05: Prez reaffirms commitment to fundamental conservative reform
02/02/05: If Bush's war turns out to have worked, was it worth the cost?
01/28/05: Would a diminishing U.S. global influence actually do us good?
01/21/05: Broadness of new Bush Doctrine diffuses focus from the true terrorist threat
01/05/05: Why is this any of the government's business?
12/15/04: Finally a maverick Nobel Prize winner for economics?
12/10/04: The challenge four more years of the Bush administration presents to conservatism's fundamental beliefs
12/02/04: Sportsmanship? What's that?
11/22/04: Tax reform limited by, uh ... tax reform
11/14/04: Empowerment agenda reality check
10/13/04: And what tax rate should Americans making over $200,000 a year pay? Some pre-debate advice for the President
09/24/04: Too many of the wrong people have too much ability to influence public opinion too quickly?
09/20/04: Kerry asks good question about security costs
09/07/04: Right city, right message
08/30/04: Bush's key task: His reinvention as a true uniter
08/20/04: Bush's burdening the Middle Class
08/13/04: For prez to win, he must change his campaigning style
08/03/04: Missing in Beantown was a sense of the art of the possible
07/26/04: Kerry inflated agenda reveals he's failed to truly make the transition from legislator to presidential candidate
07/12/04: Edwards punctuates Kerry fantasies
07/06/04: Kerry ups the ante in bid for Latino vote
06/30/04: High Court gave administration limits
06/25/04: Parallel (political) universes
06/21/04: Al-Qaida-Iraq interaction strengthens case for war
06/02/04: Gas whiners don't believe in or trust markets
05/10/04: Border reforms fail on black-market issue
05/07/04: It wasn't Bush's recession nor Bush's recovery
04/28/04: Arizona to become test market on immigration as a political issue
04/23/04: Accusations that the Bush administration has been shredding civil liberties are hyperbolic
04/16/04: Learning the limits
04/14/04: Aug. 6 memo is not even a water pistol, much less a smoking gun
04/11/04: Once 9/11 Commission's political theater ends, we must debate real security issues
04/09/04: Fact checking Kerry's federal budget plans
04/08/04: Should the transfer of sovereignty in Iraq be delayed beyond the current deadline?
04/02/04: Kerry's tax epiphany makes some cents
03/31/04: What could have prevented 9/11
03/26/04: Knock off the high-stakes blame game
03/23/04: McCain a ‘straight talker’? Who is he kidding?
03/17/04: Bin Laden makes distinctions?
03/12/04: In the dangerous neighborhoods, cause for hope, if not yet optimism
03/01/04: Greenspan view scary, but Dems in denial

02/27/04: How not to achieve a mandate

© 2004, The Arizona Republic