According to the new interpretation of the Bill of Rights approved by five Supreme Court justices this week, if an al Qaeda terrorist who was 17-years-and-364-days old detonated a dirty bomb in a U.S. city, murdering hundreds of thousands of Americans, no state could execute him.
That is because executing any killer under 18–no matter how cold-blooded his crime–would violate America’s “evolving standards of decency” and thus is prohibited by the 8th Amendment, which bars “cruel and unusual punishment.”
So said Justice Anthony Kennedy in Roper v. Simmons, an opinion that Justices John Paul Stevens and David Souter joined, and in which Stephen Breyer and Ruth Bader Ginsburg enthusiastically concurred.
Forget the governors and legislatures of 50 states. Forget voters. And forget that for 214 years no Supreme Court ever claimed that the 8th Amendment barred the execution of cold-blooded killers who happen to be less than 18 years of age.
The five-person, un-elected tribunal that now runs our Republic has spoken.
Most alarmingly, these tribunes are not claiming to have discovered something in the Constitution that went unnoticed for two centuries. They are claiming the Constitution itself has changed in the last 16 years–not because state legislatures ratified an amendment, but because some justices have changed their personal perceptions of what the Constitution ought to mean.
In other words: The evolving personal opinion of Anthony Kennedy when it coincides with the personal opinions of at least four other justices is now our Constitution.
In 1989, Kennedy writes in his opinion, the court “concluded the 8th Amendment and 14th Amendment [which enforces the 8th Amendment on the states] did not proscribe the execution of juvenile offenders over 15 but under 18.”
Furthermore, Kennedy conceded: “A plurality of the court also ’emphatically rejected’ the suggestion that the court should bring its own judgment to bear on the acceptability of the juvenile death penalty.”
Kennedy himself joined the majority in that 1989 opinion, which was written by Justice Antonin Scalia. He also joined the plurality that “emphatically rejected” the suggestion that justices could substitute their personal judgment for the judgments of state legislatures and juries on the question of the juvenile death penalty. Since then, however, Kennedy has evolved–and he insists the Constitution must evolve with him.
In the decision, Kennedy declared: “[W]e have established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.”
That left it to the five tribunes merely to establish that current American standards of decency deem it unacceptable under any circumstances to execute a 17-year-old killer.
The particular killer in this case was not a terrorist with a dirty bomb, but 17-year-old who tried to convince two younger friends they could get away with murder because they were minors. He then kidnapped a lady, bound her to a chair, threw her off a bridge into a river and bragged about it.
So: Had American standards of decency become so rarified they would not countenance executing this monster–let alone a 17-year-old terrorist with a dirty bomb?
Here the court hit an obvious logical obstacle: Twenty states allow juries to impose death sentences on juveniles in certain circumstances, just as a Missouri jury imposed a death sentence in this circumstance.
Missourians, apparently, have not evolved as quickly as Anthony Kennedy.
So, Kennedy, showing total contempt for the ideas of President Reagan who appointed him, wrote: “We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”
He, Stevens, Souter, Ginsburg and Breyer determined it was. Thus, in effect, acting as legislators, they amended the Constitution to protect a class of cold-blooded killers.
And having not found sufficient affirmation for their peculiar sense of “decency” from domestic sources, the tribunes turned to foreign sources. “Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia,” wrote Kennedy, “contains an express prohibition on capital punishment for crimes committed by juveniles under 18.”
What does this mean for representative government in America? Nobody put it better than the man who should be our next chief justice. “The court thus proclaims itself sole arbiter of our nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures,” wrote Scalia. “Because I do not believe that the meaning of our 8th Amendment, any more than the meaning of other provisions of the Constitution, should be determined by five members of this court and like-minded foreigners, I dissent.”