What Consensus?
By Ryan Walsh (03/15/05)
Many people, including those on the Right, disagree on the merits of the death penalty, especially when it applies to an age group that is legally barred from drinking, smoking, and voting. The thing is, disagreement isn’t always bad. The framers expected disagreements to emerge regularly in a healthy, thriving democratic republic. Since they concluded that these disagreements were best resolved by the people and through the democratic process, they organized the Constitution accordingly, attaching the 9th and 10th Amendments to the Bill of Rights so that the broad powers of the people and the states could not be disregarded. This is called federalism.
Yet for decades, the Supreme Court has ignored this fundamental ideal, choosing instead to enlarge its own power at the expense of the other branches of government. A perfect example of this is the Supreme Court’s ruling in Roper v. Simmons, a 5-4 decision delivered two weeks ago that banned the executions of juvenile criminals. No matter what you think about the death penalty, there’s no denying that Roper perpetuates wrongheaded jurisprudence and epitomizes the height of contemporary judicial arrogance.
You could also say that it was just an awful decision based on the brainless reasoning of five dyed-in-the-wool liberal activists disguised as judges, but hey, even though that’s probably the truth, it’s mean-spirited. So shame on you.
The majority opinion rests on three arguments: (1) a “national consensus” of Americans opposes capital punishment for people under the age of 18, (2) mainstream sociology proves that minors aren’t capable of comprehending the nature of their crimes, and (3) that “international opinion” runs contrary to the death penalty.
First, let’s look at this “national consensus.” I’ve read the columns on this decision, both for and against, and looked at the justices’ opinions, but the only “consensus” I can find is this: the consensus on the “national consensus” is that there really is no consensus.
Let me explain.
Among the 38 states that permit capital punishment, 18 of them bar it from applying to minors.
“But wait,” you say, “18 states out of 38 isn’t a ‘consensus.’ It’s not even a majority!”
That’s exactly right. This is where the majority’s logic gets particularly sloppy: since 18 out of 38 is only 48 percent, the justices throw in the other 12 states that ban the death penalty altogether to show that an absolute majority of the country, a whopping 60 percent of the states, absolutely opposes the practice. But including the 12 states that prohibit the death penalty in the “national consensus,” writes Justice Antonin Scalia, “is rather like including old-order Amishmen in a consumer-preference poll on the electric car.” Obviously they oppose it; they oppose all types of cars! Scalia further explains that counting the states that object to the death penalty completely “says something about the consensus against the death penalty, but nothing—absolutely nothing—about a consensus that offenders under 18 deserve special immunity…”
In Roper, the Supreme Court also affirmed its most recent trend of looking more to the opinions of the “international community” instead of to the law of the U.S. Constitution, which by oath the justices are bound to defend, protect, and preserve. The most frightening component of this new tendency is not the willingness among the five or six liberal justices to employ international opinion on a consistent basis, but their inclination to cite it only when it’s in their interest. For instance, as Scalia noted, most every nation in the modern world forbids abortion-on-demand, but did that stop the Court from unequivocally imposing the controversial practice on the U.S. in Roe v. Wade, Planned Parenthood v. Casey, and other cases?
And finally, as if the “national consensus” and “international opinion” weren’t ambiguous enough, the majority pointed to sociology to buttress its conclusion. But in sociology, like in other sciences, experts often fall on different sides of issues, suggesting that any sociological “finding” is not established fact but is subjective at best and flawed at worst. Besides, since when does sociology play a role in constitutional law?
Whether the death penalty is right or wrong in certain cases is a question for the legislatures and juries, not to power-hungry, unelected justices in Washington, who prefer to take their Constitution with a grain of salt.
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