Legally Speaking

Legal Affairs points us to the Supreme Court's decision in Roper v. Simmons, striking down the use of the death penalty on juvenile offenders. Justice Kennedy wrote the opinion of the Court, Stevens concurred, and dissents were authored by O'Connor and Scalia. Scalia, by the way, gains points for intellectual consistency but is docked on persuasiveness for arguing that original intent would allow us to execute seven year olds for certain criminal acts.

Powerline is angered by the Court's use, once again, of foreign opinion and standards as part of its decision (Scalia, unsurprisingly, also blasts the majority on this, as does Crescat Sententia's Waddling Thunder). I'm more placid about it. I can certainly see the dangers of relying too heavily on foreign case law and community standards in American constitutional law; after all, they didn't ratify our constitution and didn't vote for our laws. However, let's keep in mind what specific constitutional clause we're talking about here: The 8th Amendment's prohibition on "cruel and unusual punishment." As John Hart Ely noted in his masterpiece Democracy and Distrust, those words have no meaning behind them UNLESS we look at what the overall contemporary community feels about the issue. Executing seven year olds may not have been unusual in 1789, but it certainly would be today. And as the Court aptly notes, the United States is very unusual in the modern world by executing juveniles. Now, I'm not a huge fan of originalist interpretations of the constitution in any event, but in this case the constitution seemed use rhetoric specifically designed to change with age--ironically, the very facet of the opinion Justice Scalia criticizes in the introduction to his dissent. In this respect, Justice Scalia and his allies are so wrapped up in the original context in which the amendment was passed that they appear to ignore the original intent inherent in how the amendment was written--using language that specifically requires us to look to contemporary moral norms in evaluating whether or not a practice violates our constitution. I do not think noticing that the US stands nearly alone in executing juveniles violates either the letter or the spirit of that mandate.

Powerline uses this case to highlight the importance of who President Bush will name to the Court, and points us the post immediately prior where it endorses Michael McConnell for the bench. I'm happy to say I concur in this assessment, Judge McConnell is a brilliant scholar and would represent a fine addition to the Supreme Court. Hopefully, this all-too-rare occasion of concurrence between Powerline and The Debate Link will signal that McConnell is someone everybody can agree on for the Supreme Court. In fact, my only grievance with Powerline on this issue is that they got to see Mr. McConnell while he was in Minneapolis, and I didn't. I will freely admit my jealousy.