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 says that decision is outdated.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.