In my view, this ruling is horrific, and it has little to do with the death penalty. We can agree or disagree on the merits of the death penalty, be it for minors or adults. What we should all agree on, though, is the rule of law in this country, and how our constitutional republic is built on a foundation of federalism: the role of the federal government is to be limited, and the states can be as big and bloated (or as small and anemic) as they wish to be.
States are to set their own laws that do not run afoul of rights specifically enumerated in the Constitution. There are 38 states in this country that allow the death penalty, though many (such as California and Tennessee) seldom implement it. Some states, such as Mass. and Wisconsin, do not have the death penalty. I don't think any fair-minded adult among us would suggest that a court should force
these states to have the death penalty...the Constitution allows the states to have it or not.
Of the 38 states that have the death penalty, 17 have laws that forbid the execution of minors. Again, whether we agree or disagree is immaterial...these states have chosen to take this course of punishment, and no one suggests that a court should force them to do otherwise. After all, if the will of the people of a certain state is reflected, so be it. If not, then legislatures can always change the laws.
Though I did attend Florida State University, my math is still pretty solid! 18 of 38 states that allow the death penalty is 47%...in other words, less than half of death penalty states prohibit execution of minors. Those that do allow it require a great burden of proof, usually so great that prosecutors opt for life sentences.
So, what seems to be the problem? The problem is that the Supreme Court, on a 5-4 ruling, declared that the minority of death penalty states could impose its will on the entire republic! That's right, the concept of states' rights in meting punishment just got blown to hell because the libs on the USSC (with an assist from "moderate" (ha!) Anthony Kennedy) simply imposed their personal viewpoints on all 50 states! There is nothing in the Constitution that gave legal footing to their ruling. Dammit, people, we are a country of laws, NOT
of feelings!Opinion Journal
has some great observations about Justice Kennedy and his scary judicial activist temperament:
Justice Anthony Kennedy has many attributes, but judicial modesty isn't one of them. His latest legislative diktat in the guise of a legal decision--issued yesterday in Roper v. Simmons--overturns 19 state laws on behalf of a "national consensus" that he alone seems to have defined.
Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles--and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.
This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.
Even weaker is the Roper majority's selective reliance on scientific and sociological "evidence"--the kind that legislatures (and juries) are used to weighing. The American Psychological Association claims in this case that killers under the age of 18 are incapable of making appropriate moral judgments. But this is the same organization that has told the Court in the past that teen-age girls are mature enough to decide whether to have an abortion without parental input. Which is it?
Emphasis mine. So Roe
overturned the laws of 50 states that had some type of restriction by finding somewhere in Constitution a "right" to an abortion? No, I'm not making a judgment on whether abortion should be legal or not...simply that there's nothing in the Constitution that specifically
states or implies that it is every woman's constitutional right
to have one. That right should be left to legislatures, and I believe that most, if not all, of the 50 states would have enacted legislation to match the will of the people of those states...which by and large believe abortion should be legal in at least some
And isn't downright sick that the liberal APA says that a 17-year-old isn't mature enough to make a moral judgment about murdering a person, but that same 17-year-old is definitely mature enough to make a moral judgment about aborting a baby without parental input? Hell, let's just absolve ALL teens of ANY responsibility of ANY kind...that's what the left has been working on for years! My God, the left is sick, evil, and perverted!
More from Opinion Journal
, and this part's the one that really steams my hide:
Perhaps the most troubling feature of Roper is that it extends the High Court's recent habit of invoking foreign opinion in order to overrule American laws. "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty," Justice Kennedy writes. We thought the Constitution was the final arbiter of U.S. law, but apparently that's passé.
In invoking international "opinion," however, the majority also seems rather selective. Justice Kennedy cites the United Nations Convention on the Rights of the Child, which outlaws the juvenile death penalty. But that Convention also prohibits imprisonment without parole for juvenile offenders--a penalty favored by some, if not all, 50 states. Is the Court ready to sign on to that international standard too?
A USSC Justice is quoting international freakin' law...a UN rule?!? In the name of God and all that is holy! It's scary enough that we have four USSC justices who think that's a good idea...but now we have a majority who do?
And Op. Journal is right...how can you base your reasoning on this UN rule, which prohibits execution of teens, yet be in definace of this SAME rule that you quote, which prohibits life sentences for teens? Kennedy thinks life in prison is OK, execution is not, and selectively quotes the SAME UN rule that prohibits both! Consistency is a trait that is an absolute must on the USSC, yet Kennedy lacks it and sees no problem with it.
After Justice Kennedy used five pages of his logically incoherent majority opinion to cite a hodge podge of foreign laws, he limply and defensively concluded his opinion: "It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and people simply underscores the centrality of those same rights within our own heritage of freedom." When a Supreme Court justice feels it necessary to write as the closing words of his opinion that he still holds fidelity to the Constitution, it is more than reasonable to assume he knows he has just betrayed that sacred document.
Oh, yeah...how could I forget? The crime itself!
The convicted, then-17-yr-old Simmons, proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. A few hours later he proceeded to do just that, breaking into a home, covering the victim's head in a towel, wrapping her up in duct tape and tying her hands and legs together with electrical wire. Then he drove her to a bridge and threw her off into the water, where helpless, she drowned.
Simmons assured his friends they could "get away with it" because they were minors. Texas said "No, you cannot
and will not
get away with this!" Justice Kennedy and the liberals, quoting international laws and using Swiss cheese logic, said "Oh yes, you will get away with this! The UN and Euroweenies say so, and thusly, so do we!"
Again, folks, this isn't even really about the death penalty. Reasonable people disagree on it. What's inexcusable, though, is that the USSC used the flimsiest of legal pretexts to back up their views, which they were determined to impose on us all. If the 8th Amendment (the right against "cruel and unusual punishment") cannot be used to declare the death penalty unconstitutional against adults, it also cannot be used to rule it unconstitutional against teens. Maybe other facets of our scared document can, but NOT the inconsistent application of the 8th Amendment! And we damned sure cannot use international law or opinion as a basis to completely and categorically ignore
our own governing document!
In short, the USSC wanted to impose its views on America in direct violation of constitutional law. And they did so, with no regard for the law, prior rulings, consistency, or states' rights. Does it matter if it's the death penalty? Tomorrow, it could be your property, abortion, marriage, your money...anything they damned well please!