| Concluding that the United States and the world have turned against the death penalty for youthful offenders, the Supreme Court ruled on Tuesday that the Constitution categorically bars capital punishment for crimes committed before the age of 18. |
Two thoughts. As justice Kennedy noted in his opinion, since 1990 only 7 countries outside the U.S. have executed a juvenile:
Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, China and Congo. I don't care where you come down on the subject of capital punishment. Those nations are simply not ones you want to find yourself on a list with. Particularly not when your leaders are describing your nation as some sort of paragon of virtue.
Second, there's the issue of capital punishment itself. No doubt many on the right will see this as yet another exercise in judicial activism by out of control liberal judges. But that argument misunderstands the nature of the Constitution itself. For more let's go to Kevin Drum:
| But that's the whole problem with strict constructionism, isn't it? After all, the text of the constitution says only that "cruel and unusual" punishment shall not be inflicted. In one sense this is clear: "cruel and unusual" punishment is directly forbidden, so the court must rule in specific cases whether it wants to or not. However, since the text gives no further clue about what this means or how to decide if something qualifies as cruel and unusual, relying on it further is fruitless. What's more, harkening back to 1791 does no good either. After all, our founding fathers engaged in plenty of practices that would be universally condemned as cruel and unusual today. It can't be our purpose to freeze moral values for all time.
This is where strict constructionism flounders. As with much of the constitution, the 8th Amendment is simply too vague to be taken literally. There's no there there. But while the Supreme Court therefore has no choice but to redefine the meaning of "cruel and unusual" over time, there's no built-in algorithm that will take them there. There's no guidebook and the process is inevitably going to be fuzzy. At the same time, even though the decisionmaking process is inevitably fuzzy, the decision itself is just as inevitably sudden. One day executing minors is OK, the next day it isn't. What other choice is there? |
Precisely. The founding fathers purposely designed a constitutional system and a set of rights that were at times intentionally vague. In the case of the 8th Amendment, the words are so vague that its either a) meaningless, or b) necessarily open to interpretation. And who would honestly argue that the amendment is meaningless?
Of course, the problems with strict constructionism go much deeper than this. After all, it wasn't until 1803 and Marbury v. Madison that the principle of judicial review was established as a constitutional reality. Until that decision it was unclear who had the final authority on the meaning of the constitution. Today, we assume that role is the primary purpose of the Court itelf. But believe it or not, there's nothing in the Constitution itself that gives that power to the Supreme Court.
Thus, to truly be a "strict constructionist," one would have to abandon the principle of judicial review. After all, if it is the text - and only the text - that is to be our guide, without an amendment the practice could not continue.
But do any "strict constructionists" argue for the logical and necessary conclusion of their argument? Of course not! After all, courts are only overreaching and activist when they disagree with their decisions. If the Court turns around tomorrow and decides prayer in schools is legal, a practice not mentioned once in the text, how many strict constructionists do you expect to hear decrying the Court's judicial activism?
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