Judge not

Rich Tucker
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Posted: Mar 04, 2005 12:00 AM

Here they go again.

On March 1, the Supreme Court -- by its now familiar 5-4 margin -- issued a ruling that bans states from executing anyone who was younger than 18 at the time of his crime.

You may believe that this ruling gives teens a license to kill, or you may consider it to be a sensible protection for our innocent children. Either opinion is defendable, and immaterial. The important thing -- and the frightening thing -- about the ruling is that it continues the court?s march toward a ?living Constitution? and away from original intent.

Justice Anthony Kennedy proved that by basing his decision not on constitutional grounds, but on the evolution of personal and legal beliefs.

Just 16 years ago the court found that states could execute 16- and 17-year-olds without violating the Eight Amendment?s ban on ?cruel and unusual punishment.? But Kennedy, citing what he called the country?s ?evolving standards of decency,? says that decision is outdated.

Kennedy, noting that five states have banned the practice since 1989, claims that public opinion has turned against allowing the execution of juveniles. But some 20 states still specifically allowed the practice. And, as Justice Antonin Scalia noted in his dissent, if you factor out the number of states that don?t allow the death penalty in any case, only 18 states have legislatively banned the execution of 16- and 17-year-olds.

Besides, what does public opinion matter? The Supreme Court is supposed to read laws and determine if they?re constitutional. Whether people like those laws matters to politicians, but it shouldn?t matter to judges. Take the Brown v. Board of Education case: In southern states in 1954, a solid majority of people favored ?separate but equal? schools. Being popular didn?t make that right -- or constitutional.

But public opinion wasn?t enough for Kennedy. He?ll also throw out laws if he decides they?re too harsh. Or as he put it in this case, the majority decided, ?The death penalty is a disproportionate punishment for juveniles.?

Well, something can be ?disproportionate? without being ?cruel and unusual.? Many would argue that spanking a child for talking back to his parents is ?disproportionate,? but few would argue it should be illegal. The court majority is substituting its personal legal and moral beliefs for the words and meaning of our Constitution.

All this is actually in keeping with Kennedy?s legal views. He seems to believe the Constitution doesn?t mean anything, or rather, that its meaning changes from year to year. ?Later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom,? he wrote in 2003?s Garner v. Texas decision. So much for following precedent.

Finally, Kennedy claimed that the court should note what foreign lawmakers have to say. ?It is proper that we acknowledge the overwhelming weight of international opinion,? he wrote, because of its ?respected and significant confirmation for our own conclusions.?

This echoes arguments Justice Stephen Breyer made in January. He told law students that it makes sense to consult foreign legal decisions. ?These are human beings called judges who have problems that are similar to our own,? he said. ?Why don?t I read what he says if it is similar enough??

?Indulge your curiosity,? Scalia told Breyer at the time, ?just don?t put it in your opinions.? That?s the correct attitude. The ?rest of the world? doesn?t live here, doesn?t pay taxes here, doesn?t have citizenship here. So they shouldn?t be making our laws.

Our founders led a revolution so we could move away from the rest of the world and establish our own Constitution. They then wrote a document unlike anything that had come before. It set out clear powers and clear limits for the three branches of government. It allowed the United States to go its own way.

We?re not always going to be correct. Americans were late to banish slavery, for example. But going it alone allowed us to avoid ?flavor of the month? ideas like Nazism and Communism when they swept Europe in the ?30s, ?40s and ?50s, as well as Socialism in the ?60s, ?70s and ?80s.

Last November, any number of liberals noted that if the rest of the world could vote, George W. Bush wouldn?t have been re-elected. No doubt that?s true. Luckily they can?t vote. Let?s not hand them legislative power, either.