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Evolving Standards of Indecency

The opinions expressed by columnists are their own and do not necessarily represent the views of

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?

The majority can flower its language all it wants, but in the end, this reference to a national consensus to interpret the Constitution is just a disguised rationale for liberal judicial activism. It's the court's pseudo-intellectual, specious excuse for imposing its own policy judgments on the American people under the cover of interpreting law.

Liberals fashion themselves as protectors of fundamental rights, even as against the "tyranny of the majority." But they only selectively apply that principle, readily dispensing with it when it interferes with their policy preferences.

The Constitution establishes a framework to maximize liberties not by making them absolute, but by pitting competing branches and levels of government against each other and enshrining certain rights and prerogatives that can't be abolished outside of the prescribed constitutional procedures.


If we continue to surrender the more permanent structural framework of the Constitution to the shifting sands of ever-changing national opinions, we'll see our liberty evaporate drip by drip, until we end up like all other great nations preceding us.

But the national consensus analysis, as bad as it is, is symptomatic of the deeper-rooted standard the court insists on invoking with increasing frequency: "the evolving standards of decency that mark the progress of a maturing society."

The very enunciation of such "standards" betrays the majority's abandonment of the Framers' Judeo-Christian-inspired belief in moral absolutes. It mocks the biblical description of man as a fallen creature. It arrogantly presumes -- despite a wealth of objective evidence to the contrary, including the multiplicity of godless atrocities in the 20th century alone -- that we human beings are forever improving on God's moral standards. Of course, that's not difficult to accept if you reject the existence of God.

Are we evolving as a morally mature society when we permit the killing of babies in -- and halfway outside -- the womb? When we permit such obscenely sloppy formulations as "one man's terrorist is another man's freedom fighter"? When we glorify so much else that is abominable in the sight of God?


If we are evolving to the point that, on supposed moral grounds, we won't let sovereign state legislatures sanction execution for a sadistic creature who raped his 8-year-old stepdaughter -- giving her "a laceration to the left wall of her vagina" and "causing her rectum to protrude into the vaginal structure," tearing "her entire perineum from the posterior fourchette to the anus" and requiring emergency surgery -- I weep for all of our children and our society.

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