United States' Rights

"Power without responsibility, the power of the harlot throughout the ages," was the first thing that came to mind upon hearing of the Supreme Court of the United States' ruling in Roper v. Simmons, the Missouri case involving a seventeen-year old murderer. This absurd ruling says that the Eighth Amendment's ban on "cruel and unusual punishment" now prohibits the states from executing sixteen and seventeen year old killers. The Eighth Amendment has been in force for two-hundred thirteen years now and the Supremes only in 2005 discovered this fact.

The demographic affected by this ruling can drive, give blood, have consensual sexual relations and marry. In California, they can be emancipated and considered adults in the eyes of the law--see this article for one example. In Ohio, seventeen year olds have the vote in primary elections. They can marry, and join the service. Under canon law, the age of reason, the time at which children are responsible for their actions, is seven. Seven.

The ruling yesterday is an extension of the infantilization of our young people. The ages of consent and marriage have been delayed, today's young people somehow being less competent than their forebears. Likewise look at the changes with driving licenses and the drinking age. At eighteen, a man can hold public office or go fight in Iraq, but he isn't responsible enough to buy a bottle of Bud? Who is kidding who here?

The decision came from the Gang of Four (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer), joined by Anthony M. Kennedy, the opinion's author. They were opposed by The Usual Suspects (William H. Rehnquist, Antonin Scalia, and Clarence Thomas), joined by the Great Compromiser herself, Sandra Day O'Connor.

Mr. Dooley famously noted that the Court paid close attention to the election returns, but Justice Kennedy's opinion continues down the road of rewriting the Constitution by substituting "evolving standards of decency" and "the weight of international opinion" for the word and intent of the Framers. This phenomenon, which we well saw in Lawrence v. Texas, the consensual sodomy case, is just as dangerous as what Mr. Dooley saw.

It is the role of the Congress and the state legislatures to take the pulse of the nation, not the courts. (I got straight A's in Constitutional Law so you can trust me on this.) Justice O'Connor, for once taking a principled stand, noted that were she still in the legislature, she being the only member of the Court who has ever faced the voters, she would vote against these executions. But in her judicial capacity, she correctly said she could find no justification in the Constitution for making the ruling the majority issued. It also occurs that if a consensus is to be the driving force for the court's rulings, then Brown v. Board was wrongly decided and Roe v. Wade ought to be swiftly overturned. And the Supremes ought to do something about O.J. Simpson and a few others about whom a consensus on their guilt or innocence has developed.

And just what is this "international consensus"? Most of the countries of the world are repressive regimes which have no respect for the rule of law or human rights, some of them the best friends of the American government, e.g. Egypt and Saudi Arabia. The creeping internationalization of our domestic law, founded on so-called norms drafted by an European elite, oft unelected and out of step with their own peoples, is a very threat to the entire international order which, since the Peace of Westphalia three and a half centuries ago, has been predicated on the assumption that the nation-state is sovereign and ought to control its own internal affairs.

A term of art such as "cruel and unusual punishment" must have had a specific meaning to those who wrote and approved the Bill of Rights. The Eighth Amendment, like the other nine amendments, was sent by the First Congress to the States for ratification on September 25, 1789. Ratification was completed on December 15, 1791. The proper study for the Court would be the records of the First Congress, which drafted the Amendment; of the ratifying legislatures, which pondered it; of what the members of those bodies said and wrote; and of what the British courts, whose rulings are at the fundament of our legal system, had decided. What the European Court of Human Rights or the government of France thinks today is utterly irrelevant to the present situation. We might as well as Britney Spears or Sean Penn to weigh in while we're at it.

As Justice Scalia wrote, the Court has been setting itself up as today's moral arbiters, our answer to the Roman censors. If this continues, not only are the United Sates no longer of the masters of their own destinies, but we the people and the election returns we generate are meaningless.

Case materials are here (scroll down to October 13) and here.

Coverage in The New York Times is here and here. Coverage in The Washington Post is here. Coverage in The San Francisco Chronicle is here.

Some other views are here from a blogger and the American Bar Association.