The Supreme Court yesterday, in reaching a decision that to put to death someone who viciously rapes an eight-year-old violates the Eighth Amendment, makes a decision so heinous even Barack Obama cannot support it. Read the details of the rape here, but only if you have a strong stomach.
I have many times on this site voiced my opposition to the death penalty. But my view is prudential, not categorical. In a world confused about the value of human life, I'd prefer that we err for the time being on the side of life even with the worst criminals. Even if I was categorically opposed to capital punishment I would not be so arrogant or ignorant to suppose that the Constitution prohibits that which it clearly allows. In short, I would not read my own values into the Constitution.
For a legal analysis of the case, see Scott Johnson, Ed Whelan, Matt Franck, and the editors of National Review.
Obama's rejection of this decision would be more edifying if this is not exactly the type of decision one can expect from Obama's "living Constitution" judges. Says Jonah Goldberg:
To his credit — or to the credit of his realpolitik advisers — Obama came out against yesterday's decision. But, that doesn't change the fact that he would appoint judges who would vote the same away and has voted against judges who voted the right way.
The 'living Constitution" is one of the hallmarks of the Progressive philosophy. Let me quote from Sidney Pearson's introduction to Herbert Croly's Progressive Democracy.
For Croly, the Constitution was a "living Constitution," which is to say that it was not bound by the principles of the Founders. It could evolve into some other than what the Founders would have intended. Croly described this as a "strength," but the implications were clear; a "living Constitution" could be interpreted and reinterpreted to the point where the original principles were lost altogether....The virtual elimination of the Constitution as a source of permanent principles was necessary because Croly well understood that as a practical matter there was not likely to be a new Constitutional Convention to draft a new document. (emphasis mine)
Croly, Woodrow Wilson, and other Progressives wished to replace the Constitution with the more enlightened view of their age (the Progressives were not the first nor last to believe that intellectual evolution had peaked with themselves). This turns the judicial branch from an institution which uses its judgment to an institution that asserts its will. Thus Obama and others like him don't really have a legal argument against the Court; they merely have a policy disagreement. And that is what the "living Constitution" does. It turns the Supreme Court into just another policy making body. So the opinion of five judges overrules the people of Louisiana (to say nothing of the jury), an overruling based on a whim.
We are now in a legal position where our imperial masters on the Supreme Court believe that a man who perverts his role as a caretaker by raping his young step-daughter has so much dignity that the Constitution forbids the public from executing him. But, the unborn have so little dignity that the Constitution demands that the public allow women to kill their unborn child for any reason at any point in pregnancy.
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