Joseph Sobran’s
Washington Watch

Not Again!

(Reprinted from the issue of March 10, 2005)

The U.S. Supreme Court says that executing killers under the age of 18 violates the Constitution of this country because other countries don’t do it. Speaking for the majority in a 5-to-4 ruling, Justice Anthony Kennedy delivered himself of the opinion that such executions violate “evolving standards of decency” recognized by every country but this one. He appealed to “the opinion of the world community.”

Justice Kennedy isn’t noted for his Aristotelian logic. It seems not to occur to him that standards that can “evolve” aren’t standards at all. But then, this is the same justice who has held that laws against abortion are unconstitutional because everyone has the right to define the meaning of the universe for himself.

He thinks like an undergraduate who has been briefly exposed to Hegel, then started reading editorials in The New York Times.

As usual, Justice Antonin Scalia pounced on this liberal mush. He reminded his colleagues that “foreign sources” aren’t appropriate guides for interpreting our Constitution. Not that such obvious considerations can make a dent in Kennedy’s thinking, as Scalia must know by now.

Kennedy also cited “scientific and sociological studies” finding that minors more often than adults show a “lack of maturity and an underdeveloped sense of responsibility,” leading them to make “impetuous and ill-considered actions and decisions.” No kidding? You don’t say! Well, shiver my timbers!

This might do if a child of five were on trial for a capital crime, but in the case under review the killer, one Christopher Simmons, was a lad of 17 who had murdered an old woman and bragged to friends that he could “get away with it” precisely because he was a minor.

This was a cold-blooded kid who knew exactly what he was doing: He bound the woman, taped her eyes and mouth shut, and threw her off a bridge to drown. He also knew exactly what jurists like Justice Kennedy were doing.

Kennedy even cited a “national consensus” against executing juveniles, which suggests he doesn’t get outdoors very often. A consensus is a general agreement with little dissent; but many people feel strongly that killers like Simmons are old enough to know better and can’t be excused by youth. I once kicked an old woman — my grandmother — and I was immediately ashamed, though I was only about four. (Grandma, I’m so sorry! I love you so much!)

I think the death penalty is wrong, because the state shouldn’t have the power to kill. But this isn’t to say that some people don’t richly deserve it; the point is that it’s not the state’s place to inflict it. Some people deserve to be tortured to death, but we don’t want the state doing that either.
 
The Forgotten Tenth Amendmen

Furthermore, the Court’s duty is to apply the American Constitution, not the consensus of the United Nations. Federal courts aren’t assigned to supervise criminal law in the states. This Court has a feeble grasp of such principles as federalism, limited government, and the separation of powers. Its latest ruling is one more judicial usurpation of the powers reserved to the individual states.

Unfortunately, not even Scalia and Clarence Thomas, usually fearless dissenters, seem to want to bring the Tenth Amendment to bear. Their predecessors under Franklin Roosevelt (accursed be his name) pretty much declared the Tenth a dead letter, and so it has remained — though the Constitution makes no sense without it. Its absence leaves the “general government” free to define its own powers.

Needless to say, the Court’s worst usurpation was its 1973 ruling that state laws against abortion violated the Constitution. Almost nobody at the time saw (certainly I didn’t) that this decision was not only monstrously immoral, but in gross violation of the Tenth Amendment, denying even a state’s power to protect the innocent from violence.
 
Revolution within the Form

Despite its semblance of the rule of law, the federal judiciary, like the federal government itself, is essentially lawless. America has experienced what Garet Garrett, following Aristotle, called “revolution within the form” — an invisible and unacknowledged change in its basic nature, which few of the ruled realize has changed at all.

The revolutionaries realize that their power depends on the illusion of continuity. The overturning of fundamental principles, the destruction of tradition, the creation of new powers — these must all be presented as mere “reforms.”

Kennedy wasn’t on the Court in 1973 — he was a Reagan appointee — but, though Catholic, he soon turned out to be reliably pro-abortion. How ironic that he should give the value of a young criminal’s life as a reason for exempting him from the death penalty, for “the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity”!

In a separate dissent, Sandra Day O’Connor admitted regretfully that she couldn’t find a constitutional basis for banning juvenile executions, but agreed with Kennedy about this country’s “evolving understanding of human dignity [which] certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries,” et cetera.

I always worry when justices use the words “evolving” and “inherently” along with lots of commas. It means they think they’re being nuanced.
 
The Liberal Universe

Yes, the Court has certainly shown its evolving grasp of human dignity in its abortion rulings! Honestly, I don’t know how people like Kennedy and O’Connor live with themselves. I myself couldn’t bear to live in a universe I thought was devoid of norms and logic. It would be too depressing.

Besides, this style of liberal thinking is just plain quaint. It was exhausted in the 20th century, when its essential nihilism was subjected to vigorous conservative criticism. Yet it continues to carry on, with zombie-like energy, as if its weary ideas were still fresh and compelling.

Could there be, in other words, a more joyless, boring job than being a liberal spokesman, making a career of negating great truths? How can anyone passionately believe in, for example, the necessity of removing the Ten Commandments from public places? Just who would be better off if you should succeed?

And it must be embarrassing to be so predictable as Justice Kennedy, to repeat yourself so formulaically day after day, year after year, never offering a fresh insight or even coining a new phrase.

Justice Scalia can still startle us, sometimes by being wrong; but, right or wrong, he constantly displays the vigor of an active mind. And I don’t think he has ever used the word “evolving.”


SOBRAN’S. savors the prose of John Henry Newman, whose style rises from civility to sanctity. If you have not seen my monthly newsletter yet, give my office a call at 800-513-5053 and request a free sample, or better yet, subscribe for two years for just $85. New subscribers get two gifts with their subscription. More details can be found at the Subscription page of my website.

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Joseph Sobran