Good? Good?

by Shannen W. Coffin

Andrew, explain to me just one example of how this is a “good decision.” Just because you agree with the policy disguised as law doesn’t make this a good decision. In fact, it is a travesty of constitutional law. One reader adds the following: Obviously the Roper decision represents the worst sort of judicial overreaching, with five unelected judges substituting their policy preferences for those of the peoples’ elected representatives. But there’s another aspect of the decision — a federalism aspect — that’s equally objectionable. By invoking an imagined “trend” by state legislatures toward the statutory abolition of juvenile capital punishment, the Court effectively is allowing certain states to dictate policy in other states. States like Texas and Virginia now are bound by the policy preferences of legislators in Vermont and Oregon. It’s the perfect, if perverse, complement to the Court’s increasing invocation of foreign sources of “law,” as a result of which the American people as a whole are to be governed by elites in Brussels. (In a way, it’s also the exact opposite of the “contemporary community standards” doctrine from the First Amendment context, under which individual localities are permitted to determine what is obscene — i.e., what sort of speech does not qualify for constitutional protection — and thus the constitutional standard varies from state to state.) Roper thus represents not just an assault on judicial restraint, but an offense against federalism.

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