[Erin] A difficult decision

Erin,

What criteria do you use to determine the constitutionality of the decision? And have you read Justice Alito's dissent?

I am so glad the Catholic Church is not making the judicial decisions in our country.

I'm not sure yet what to make of the decision myself. For the most part I am opposed to the death penalty except when it is the only means of protecting others from further harm (e.g. a mob boss who can still order hits from jail, or an inmate who kills other inmates).

But I don't agree with the assumption that the only crime equal to the death penalty is murder itself. Is it impossible that some things are worse than being murdered?

I also disagree that this ruling is constitutional. This is too much encroachment by the Supreme Court into the jurisdiction of the states. States decide what their punishments are for crimes. The death penalty itself is not cruel and unusual punishment. So I don't believe the SCOTUS really should have any jurisdiction in this case.

My (flawed) understanding of Church opposition to the modern death penalty has to do with it not being a necessity. If we were on a desert island, twenty people, and one was a murderer, we would not have the resources to imprison him. After a fair trial and certain conviction, we would be within our rights as a society to put him to death to prevent further crime. We could keep an eye out on a robber, banish a vandal, but we couldn't take the chance that a murderer could get by us or come back, because a repeat of his crime would be very serious. In our country, however, we have the resources to imprison a murderer, there is no need to put him to death, therefore the penalty is wrong for that reason.

Now, if we were on a desert island with a child rapist, I think he would fall into the murderer category. So if the Supreme Court is going to allow the death penalty for murder, it is terrible that they will not allow it for child rape. It makes no sense, unless you decide that taking a life is a much more serious offense, in most any case, than raping a child. I believe death is not the end. I'm not asking for death, but I'd much rather be murdered than have my child raped. This may be an emotional reaction, but I don't see how that disqualifies it. Murder being more "serious" than child rape is, in the end, a matter of subjective opinion. You can't even say there is a cultural inclination to believe so -- there are plenty of cultures out there, and here in the U.S., who would agree that murder is the less heinous of the two.

When our Constitution was written, it wasn't at all unknown for people to be executed for various forms of theft. Today we would definitely consider that "cruel and unusual punishment."

So is the meaning of constitutional provisions a function of Americans' (mutable) beliefs? If so, why should such mutability be limited to "cruel & unusual punishment" WRT to capital punishment?

I repeat: if changes in Americans' views WRT morality may be cited to redefine constitutional provisions, would you find a judicial redefinition of "liberty" in the Fourteenth Amendment to encompass abortion, euthanasia, & gay marriage constitutionally problematic if one could cite empirical evidence (polls & the like) showing a "consensus" supporting such a redefinition?

at this point, the vast majority of our nation would consider it cruel and unusual to execute someone for a crime that didn't involve murder.

Not so sure about that. A '91 poll found 47% of Americans "favor or oppose the death penalty for people convicted of sexual abuse of a child". A '97 poll found 65% "favor the death penalty for someone convicted of...[s]exually molesting a child". (*) I could be wrong, but I suspect that opinion hasn't much shifted in the past decade.

(*) My quotations are from the actual poll questions. See volokh.com/posts/1214447764.shtml

There are two problems here. First, the idea of basing a ruling on a vague sense of "evolving national consciousness" is dangerous. As someone noted above, it sets the Court on a very slippery slope. Second, it's not the Court's job to discern the spirit of the nation in this matter: that's a job best left to the democratically elected legislatures. And, as the passage of recent laws shows, substantial parts of the nation were leaning towards capital punishment for the rape of children. Kennedy's decision, in effect, stifled the conversation just as it was getting started--cut off a legitimate consensus in its development, and imposed one of his own in its place. The majority decision respects neither the founders, nor the states, nor (really) the people: the only opinion that matters is that of five benchwarmers in black.

Sorry, it wasn't at Gitmo perhaps... but you know what I mean... Waterboarding and such...