David Limbaugh

The Supreme Court's barring of the death penalty for child rapists in Kennedy v. Louisiana underscores the hazards in the court's abandonment of moral absolutes in favor of "evolving standards of decency" and the court's unbridled arrogance in substituting its subjective judgment for the legislatively enacted will of the people.

In Kennedy, the court reversed the decision of the Louisiana Supreme Court to uphold the capital punishment of a convicted child rapist, holding that the Eighth Amendment's cruel and unusual punishment clause prohibits executing such offenders "where the crime did not result, and was not intended to result, in the victim's death."

A United States Supreme Court with a majority of Constitution-respecting justices would have evaluated the Louisiana statute in light of the originally understood meaning of the cruel and unusual punishment clause.

Instead, today's sometimes Obama-inclined liberal activist majority subordinated to the lowest rung the clause's original meaning in favor of "the evolving standards of decency that mark the progress of a maturing society."

And how does the majority identify that new, enlightened standard applicable to child rape cases not resulting or intended to result in death?

Simple. "The Court is guided by 'objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions.'" And the majority, in its infinite wisdom, concluded that there exists a "national consensus against capital punishment for the crime of child rape."

The only consensus that should matter to the court is that reflected by the Louisiana legislature -- a consensus that ought not be circumvented, in any event, by the national will when it involves a matter of state law.

But put that aside for a moment, as well as the court's fallacious analysis -- systematically demolished by Justice Alito in his dissent -- in finding that such a national consensus exists. Let's consider the legitimacy of the court applying an "evolving standard" in the first place to interpret the Constitution.

Does it not follow that if provisions of the Constitution can change by fiat of the high court solely on the basis of its perceived assessment of a national consensus on any particular question, the Constitution's restrictive amendment process -- which requires supermajorities and imposes other hurdles -- is rendered meaningless?


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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