In the confirmation hearings for Elena Kagan, Americans will hear a debate over how to interpret the Constitution. On one hand are conservatives who preach strict adherence to the framers' intent. On the other are liberals who see a flexible entity that must adapt to a changing world.
But you don't have to wait to assess the competing theories. Rarely have they been more starkly opposed than in the Supreme Court verdict that life without parole may not be imposed on juveniles who have not killed. And rarely has each side done a better job of exposing its own flaws.
The case involved Terrance Graham, a Florida juvenile jailed for an attempted armed robbery. Upon his release, the 17-year-old took part in an armed home invasion. Exceeding the recommendation of prosecutors, a judge gave him life without parole.
But that sentence, concluded the Supreme Court, violated the Eighth Amendment ban on "cruel and unusual punishments." Five justices said putting a minor away for life is always excessive, and another (Chief Justice John Roberts) agreed it was in this instance.
The verdict exasperated Justices Clarence Thomas and Antonin Scalia for the simple reason that the life sentence "would not have offended the standards that prevailed at the founding." Besides, Thomas wrote, the Eighth Amendment was meant to bar forms of punishment that involve torture, not penalties that are merely disproportionate to the crime.
But as Justice John Paul Stevens pointed out, Thomas and Scalia "would apparently not rule out a death sentence for a $50 theft by a 7-year-old," which according to them was permissible in 1789.
Executing a second-grader for stealing a video game, while insisting the penalty is not cruel and unusual? An interpretive approach that leads to such ludicrous conclusions has no real use. This single dissent cruelly exposes the limits of the "original intent" school.
Justice Anthony Kennedy's majority opinion, however, does nearly as much damage to his subjective style of interpretation. It's larded with value judgments that seem only vaguely connected to constitutional principles and precedents.
He complains that with a life-without-parole sentence, "the state makes an irrevocable judgment about that person's value and place in society." He laments, "A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity."