So? Where does the Constitution guarantee violent felons the opportunity to "demonstrate growth and maturity"? Or the right to regular reassessments of their "value and place in society"?
A few years ago, the court wisely prohibited the death penalty for adolescents. "The most severe punishment," said Kennedy then, is appropriate only for criminals mature enough to be guilty of "extreme culpability." But now, without a persuasive explanation, the next most severe punishment is also off the table.
Most likely it should be, and Roberts' concurring opinion did a far better job of explaining why. He made a strong case that the combination of Graham's age, the uncommon severity of the punishment and Florida's relative leniency toward adult murderers made the sentence indefensible.
This judicious argument by Roberts, a conservative, offers a way between Thomas' rigid obedience to ancient assumptions and Kennedy's indulgence of personal impulses. A similar one, from a liberal perspective, can be found in David Strauss' succinct and elegant new book, "The Living Constitution."
The author, a law professor at the University of Chicago, advocates a "common-law" mode of judging. It rests on respect for the essential principles of the framers and for past decisions by courts applying those principles to new circumstances.
This is "the constitution as it actually operates, in practice," Strauss writes. "On a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy."
Judges can't escape value judgments, but they have to make them humbly and carefully, following text and traditions. The framework not only accords with good sense but, writes Strauss, "restrains judges more effectively than originalism."
Making sense of the Constitution is not a matter of simple equations, as Thomas would suggest, nor of following one's own desires, as Kennedy seems to believe. Judges have to be guided by the past, with a full understanding of the present.
Does that sound like an imperfect formula? It is, but not as imperfect as some others.