Should The Supreme Court Define Cruelty?
Court's decision outlawing the death penalty for anyone under
18 has infuriated opponents of judicial activism. Perhaps the
most prominent critic is Justice Antonin Scalia, who charged that
in overruling the elected lawmakers of various states, the court
"proclaims itself the sole arbiter of our nation's moral
In this view,
the justices must choose between respecting the words of the Constitution
and following their own personal views. But Scalia and other opponents
of "judicial activism" ignore something very important:
The words of the framers were often empty vessels destined to
be filled by the courts. They are so unspecific and open-ended
as to leave judges no choice but to . . . well, use their judgment.
In this case,
a majority of the court ruled that the execution of someone who
was 17 at the time of the crime violates the Eighth Amendment,
which prohibits "cruel and unusual punishments." It
reached this conclusion just 16 years after deciding that the
execution of a 17-year-old did not violate the Eighth Amendment.
was not the Eighth Amendment, which reads exactly as it did then.
What changed, in the court's opinion, were the "evolving
standards of decency that mark the progress of a maturing society."
Today, it sees a new national consensus against such executions.
"A majority of states have rejected the imposition of the
death penalty on juveniles under 18," said the court.
says that's the wrong barometer, because it includes states that
don't allow the death penalty for anyone. Of the states that utilize
capital punishment, most do allow it for 17-year-olds. The number
of minors sentenced to death has, Scalia notes, "either held
steady or slightly increased" since 1989 -- proof that there
is no groundswell of moral revulsion.
But the real
flaw in the reasoning of both sides is the whole idea of deferring
to public opinion. If there were a true consensus against executing
kids, we wouldn't need the justices to ban the practice -- our
democratically elected legislatures would eventually get around
to banning it. It's only when there is not a national
consensus that the court has a reason to step in.
of Rights, after all, is expressly intended to prevent the majority
from having its way. So it wouldn't have made sense for the framers
to forbid only those forms of cruel and unusual punishments that
the majority rejects. The sole point is to forbid those barbarities
that the public would otherwise adopt.
penalty, which is inherently inhumane, is even more so when used
on people who have not lived long enough to acquire the rights
we confer on adults. If 17-year-olds are not responsible enough
to make their own decisions about voting, joining the military
or taking out loans, how can we treat them as indistinguishable
from adults when they commit crimes?
some 17-year-olds are mature enough to be held accountable, and
that juries are capable of deciding which ones. But that argument
proves too much. By his logic, why not let juries sentence 15-year-olds
to death? Or 13-year-olds? You have to draw the line somewhere,
and it makes eminent sense to draw it at the same place it's drawn
for the privileges of adulthood.
think this "evolving standards" approach is a lot of
hooey. In their view, the Constitution should be read only to
ban punishments that the framers saw as cruel. But if the courts
interpreted the amendment that way, we would still be allowing
mutilation and maiming of criminals. The Fifth Amendment, after
all, says defendants may not be put "in jeopardy of life
or limb" twice for the same offense -- which suggests that
they can be put in jeopardy of life or limb once.
matter, a strict originalist interpretation would mean children
as young as 7 could be eligible for a lethal injection. Douglas
Abrams, a professor of juvenile law at the University of Missouri-Columbia,
says that in the era of the founders, there were cases of 10-year-old
criminals being hanged.
If the framers
wanted to establish a cutoff age for the death penalty, or if
they wanted to outlaw only certain specific punishments, they
could have done so. Instead, they chose broad generalities that
they knew were bound to change in meaning with the passage of
time, and which the courts would have to define.
laments the spectacle of constitutional terms being "determined
by the subjective views of five members of this court," he
shouldn't blame his colleagues. They're only doing what the framers
obligated them to do.
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