Our Divine
Tribunal
The
Divine Tribunal excuse me, I mean the
Supreme Court of the United States, as its officially known
has decided, by a 5-to-4 vote, that executing criminals under the age of 18
is unconstitutional.
Where, you may ask, does the U.S.
Constitution say that? Well, nowhere, actually. But the Tribunal
doesnt decide whats constitutional by consulting the
Constitution. That would cramp its style.
No, Justice Anthony Kennedy
explained for the majority that there is a national consensus
against executing minors, and that other countries dont do it, so
there you go.
Nonsense. Kennedy surely knows
what the word consensus means. It means a general agreement,
without significant dissent. Certainly there is no national
consensus on this matter, as witness the immediate outrage that greeted
the decision. There isnt even a consensus on the Divine Tribunal, as
witness the narrow vote.
And what foreign governments do
is irrelevant to what the American Constitution means. Kennedy speaks
reverently of the overwhelming weight of international
opinion, the opinion of the world community, and
evolving standards of decency. For liberals, evolving
always means improving.
Kennedy also explained solemnly
that young people are often less mature than adults, so they tend to make
impetuous and ill-considered decisions. Where did he get this
amazing insight? He cites scientific and sociological studies.
The case at hand didnt
involve some toddler. It was a Missouri case in which one Christopher
Simmons, a 17-year-old boy, murdered an old woman. He tied her up, taped
her eyes and mouth shut, and threw her off a bridge into a river. Then he
bragged to his pals that hed get away with it because
he was a minor. Hed no doubt heard of judges like Anthony Kennedy,
who wrote that in the case of a juvenile criminal the state cannot
extinguish his life and his potential to attain a mature understanding of his
own humanity.
![[Breaker quote: Another judicial outrage]](2005breakers/050303.gif) Sounds
as if poor little Christopher needs therapy. And of course its his
needs, not his deserts, that interest Kennedy. A youth of 17 who sees the
nature of his act something to get away with
isnt a moral subject? Most small children are mature enough to know
that stealing cookies, let alone drowning old women, is wrong.
This ruling is galling for those who
oppose the death penalty in principle, because soft-headed arguments like
Kennedys create the impression that only a silly sentimentalist could
object to it. But thats only part of the harm done by this decision.
The rest, in the long run, is more serious.
Kennedy has further subverted
the tattered American principle of federalism by assuming the Federal
judiciarys authority to strike down any state law it dislikes. The
Framers of the Constitution he has such difficulty understanding knew that
one way to protect liberty is to divide power. They separated the powers of
the legislative, executive, and judiciary branches; and, more important, they
also separated the few powers assigned to the Federal Government as a
whole from the far more numerous powers of the states.
The principle is embodied in the
Tenth Amendment and explained more fully by James Madison in Federalist
No. 45 and by Thomas Jefferson in the Kentucky Resolutions of 1798. If the
Federal Government can decide (and expand) its own powers, its no
use having a written constitution. Federal courts will interpret it so
arbitrarily that it will become meaningless, or what Jefferson called a
blank paper by construction.
This is what Kennedy and his
liberal colleagues have done once more in the Missouri case. Every state law
is now eligible for review and reversal by the Federal judiciary. No matter how
limp its reasoning, no matter how remote from the text of the Constitution,
the Courts word is law constitutional law.
Liberals see the Constitution itself
as living and evolving that is, gradually
turning into something that would have been unrecognizable to its authors. In
fact, the process hasnt been that gradual. It has required frequent
violence to language, law, history, and logic in order to allow the Divine
Tribunal to disguise its prejudices as conclusions.
Conservatives often accuse liberal
justices of legislating from the bench. The charge is too kind.
The problem isnt that they legislate; its that they lie.
Joseph Sobran
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