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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.