I agreed with my colleague, Professor Schaff, in his criticism of the 5 to 4 Supreme Court decision in Kennedy v. Louisiana. The Court ruled that the death penalty could be used only in the case of a murderer or a traitor. It could not be used in a case of child rape where the victim survived. I am somewhat surprised to see that Lawrence Tribe, long time voice of constitutional law scholarship from the left, also agrees with Professor Schaff. For some reason Tribe does not mention Professor Schaff's excellent post. Here is the Wall Street Journal, is what Tribe does say:
Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.
But there was a problem with the court's understanding of the basic facts. It failed to take into account -- because nobody involved in the case had noticed -- that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.
The Court gives itself license to write "evolving social morality" into the fabric of the Constitution whenever it sees fit. This is not altogether without ground in the Constitution itself. "Cruel and unusual punishment" is a term that may be said to change with the times, as what was usual once may be very unusual today. We don't put people in stocks anymore.
But the problem is that the Court is almost always using this as an excuse to write their own sensibilities into the law. And in this case, as Tribe shows, they got the direction of social evolution wrong. Some crimes, especially those perpetrated against children, may well be as horrifically bad as murder, so why not the same punishment as murder? There is no ground for the Court's decision, either in the logic or the traditions of law, or in the facts of the case.
So why is Tribe being so reasonable? Well, to be fair, he has always been more reasonable than a lot of his colleagues on the left (and a few of mine on the right). But it also looks like he is applying for a promotion.
Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings. Whatever one's view of the death penalty -- and I have long expressed misgivings on both its wisdom and its constitutionality -- it's important that the inequities and inequalities in its administration be minimized. Commitment to that principle, not a rush to the center, lay behind Barack Obama's disagreement with the court's ruling in this case even before the 2006 federal death penalty provision came to public attention.
Well, there you have it. Obama didn't flip flop. He was committed to principle. And it's a principle that Republicans should respect, especially if they still have veto power when Obama nominates Tribe for the next Supreme Court vacancy.
But just because there may be a political motive behind Tribe's argument, that doesn't mean he isn't right. Here is a genuine bit of brilliant jurisprudence.
Many who applauded the court's original ruling did so not on the basis of the court's (now evidently faulty) trend-spotting rationale but, rather, on the premise that any way of containing the spread of capital punishment -- such as by confining its use to murderers and traitors -- is a good idea. But even those who harbor serious doubts about capital punishment should feel duty-bound to oppose carve-outs from its reach that denigrate certain classes of victims, or that arbitrarily override democratic determinations that such victims deserve maximum protection.
If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire. In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.
Yes. Limits on the death penalty may look good to death penalty opponents, but they can be misused like any other arbitrary rule. That is the trouble with the Court arbitrarily imposing its own political views on the law. Let's hope Tribe remembers all this if he does get on the bench.
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