Supreme Court Finds Rape Not So Bad

Not bad enough to deserve death, anyway.

The Associated Press reports:

The Supreme Court on Wednesday ruled 5-4 that it is unconstitutional to execute child rapists, a decision that throws out capital punishment laws for such crimes in Texas and five other states.

This decision has been all over the news for the past few days, though somewhat overshadowed by a few even more fundamental court rulings - the Supremes have clearly been very busy.

There are a number of different ways to look at this ruling.  It's not possible to detail the crime in question - no, it literally is not possible; words fail me, and I find myself unable to read the description of the crime which is part of the court records.

Suffice to say that the criminal act in question which was perpetrated on a young girl is of such depravity and horror as to defy description.  Is it possible for a human being to sincerely wish he or she were dead?  If such a thing can be, there's no doubt this victim would qualify.

The monstrosity of the crime is not really at issue here; even the justices who denied the death penalty were disturbed by it.  They'd have to be; if they weren't, we should question their sanity and their humanity in addition to questioning their fitness to sit on the Supreme Court of the United States.

Nor is this a decision on the constitutionality of the death penalty itself.  Nowhere in the ruling did the court say, or even imply, that the death penalty itself is unconstitutional by nature.

No, they merely said that this sort of crime is just not bad enough to warrant execution: to really deserve to die, you have to actually kill someone.  Making someone's life a living hell isn't quite foul enough to deserve death.

No, Justice Kennedy justified his decision as follows:

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it.

In other words, says the Justice, since there are 44 states that do not allow executions of rapists and only 6 that do, it must be unconstitutional!  Would that the abortion laws were viewed the same way - there's no question that well over half of the states would disallow abortions in most cases.

But that's undemocratic, you shout.  There are lots more people living in, say, California and New York than in North and South Dakota; why should they count the same that way?

And that's precisely the point.  It is not the job of any court to take a poll.  The Supreme Court has absolutely no business putting its finger in the wind to see what the people want.  That's the job of the elected legislature.

If the United States Congress wished to outlaw the death penalty for rape, they have every right to do so.  Why haven't they?

If the individual legislatures of the 50 states wished to outlaw the death penalty for rape, they have even more right to do so because the Constitution reserves rights to the states.  In fact, as Justice Kennedy gleefully pointed out, 44 state legislatures have done exactly that.  Does that mean that the last six should have the choice removed from them?

The whole point of politics is to allow laws to be changed to reflect the will of the people, not the will of the judiciary.

Suppose that the will of the people, as a whole, changed to feel that the death penalty an appropriate punishment for rape.  How can We the People do that, given that the Court has found it unconstitutional?

The liberals on the court, doubtless entirely on purpose, have created a one-way ratchet: their logic can outlaw capital punishment, or anything else they don't like, once their desired position reaches a majority in the states, and it can never again be challenged.

How could you possibly get 44 states to pass a law which had already been wrongly judged unconstitutional since that's the test Kennedy requires?  Or do we now need a Constitutional amendment permitting executions for heinous crimes?  We never needed one before.  Why would we need it now?

There are good arguments why the death penalty might not be the best punishment for rape.  For one thing, if the rapist knows this, he may be more likely to kill his victim when the crime is complete; a dead victim can't testify.  But the elected representatives of the State of Louisiana carefully considered these arguments and in response to the values of their constituents held that the ultimate penalty was appropriate in such a case.  How dare the unelected sages on the court usurp this authority?

For the Supreme Court is the least responsive, and by its nature, the most totalitarian branch of our government.  You can vote out the President.  You can vote out the Congress.  You can vote out the governor, and your state legislature, and your mayor.  But it's almost impossible to get rid of a federal judge; the number impeached can be counted on one hand.  Is this what the Founders intended?

The single bright spot in this whole sorry, sordid travesty is the response of the elected chief executive of the State of Louisiana, Bobby Jindal.  Hardly a day after the Supreme Court's repellent, odious, tyrannical decision, he signed a bill to permit and require the castration of rapists - either chemical or physical, as they prefer.  Can't kill 'em as they deserve?  Perhaps not - but we can make them wish they were dead.

If we cannot put rapists six feet under where they belong, at least neutering rapists is the next best thing.  Now we need to neuter a Supreme Court which cares nothing for when the people's representative say "No!"  Not chemically, and not physically; but it's time and past time for political surgery.

It's called "impeachment."  Let's get on with it.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Society.
Reader Comments
I don't see why this is a bad thing. The death penalty should only be used for murder and treason.
July 1, 2008 10:56 AM
I agree with Artichoke. Rape is truly heinous but should people be executed for it? There's also room for error in terms of interpretation and accusation. The courts basically believe anything a woman says against a man when it comes to this issue. There is usually no other evidence required except for her testimony.
July 1, 2008 11:54 AM
You do know that the system was designed to insulate judges so that they would not be forced to make popular decisions like elected officials. I mean you have heard of separation of powers, correct?

And capital punishment is our most serious punishment and has been traditionally reserved for the most 'serious' crime, murder. Just because murder is viewed as more serious than rape does not make rape less significant. But it has always been that rape is less than murder.

Most prosecuting attorneys would have told you they knew the law would get struck down.
July 1, 2008 4:42 PM
What about pedophilia? Should the death sentence not be given out for that? It is my opinion that some crimes are as bad as murder. Punishment serves two purposes in society - repayment to victim for wrongdoing and deterrent to others. For certain things, like pedophilia or rape, there is no repayment that can be made to the victim, and the best deterrent is the death sentence.
July 1, 2008 4:50 PM
If you don't see why this is bad, then you're missing the bigger point.

What is bad is that the Supreme Court of the United States (FEDERAL Government) is overriding yet another STATE right.
July 1, 2008 5:06 PM
Yes, I agree with that part. They should not have overriden the state in this instance. There is nothing here that is specifically handled by the US Constitution.
July 1, 2008 5:19 PM
As Tony said, it doesn't matter, in the end, whether or not rapists should be executed because that is not something that the federal government controls. Capital punishment is not unusual and the supreme court just recently ruled that certain forms of capital punishment are not cruel. That means that the form of punishment is constitutional according to this supreme court.

Just as we wouldn't want the supreme court making health care or welfare a constitutional right because that goes beyond the scope of the supreme court's power.

The supreme court is, unfortunately the only branch without any checks on its power, other than constitutional amendments. Those are (and should be) very difficult and since the supreme court, and the federal government in general, tend to ignore whats in the constitution anyway there wouldn't seem to be much point to go to all the trouble.
July 1, 2008 5:21 PM
I'd say the constitutional amendments don't put any checks on the Supreme Court either, given that the Supreme Court "interprets" the constitution.

Of course, if you really take a good look at history, you'll see that this was not the original intention. But the Supreme Court has "interpreted" the constitution differently about their role.
July 1, 2008 6:19 PM
Even the NY Times has reservations about the ruling. Their Email edition of July 2 said:

In Weighing Death Penalty, a Flaw in Fact
A military law blog pointed out that a central part of the Supreme Court's analysis leading it to rule against capital punishment for child rape was based on incorrect information.

When the Times finally gets around to admitting that Roe v Wade was based on flawed legal reasoning, we'll have reached a major milestone.

The issue is NOT whether we LIKE the way the Court rules. The issue is HOW they arrive at their rulings. Their Constitutional function is solely to INTERPRET the law, NOT to make new law. The legislators, whom We the People elect, are the ones who are charged with making new law.
July 2, 2008 6:51 AM
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