Last Wednesday, the Supreme Court announced in Kennedy v. Louisiana that the Eighth Amendment’s ban on “cruel and unusual punishment” prohibited Louisiana from executing a man convicted of raping an eight-year-old girl. In support of this revelation, the 5–4 majority cited “the evolving standards of decency that mark the progress of a mature society.”
This case is remarkable not because it illustrates the folly of “living constitutionalism” as a judicial philosophy — any number of cases would suffice for that purpose. Kennedy stands out, rather, because it is indefensible even on its own terms. That is, its rationale fails even if one accepts the premise that the meaning of the Eighth Amendment changes over time. There is simply no consensus today — in America, at least — that the execution of child rapists is cruel and unusual. The Court’s assertion to the contrary is a display of pure judicial prerogative masquerading as constitutional law.
Of course, the Court had no business attempting to divine a national standard of decency in the first place. It felt compelled to do so only in continuance of its long and proud tradition of ignoring the original (and enduring) meaning of the Eighth Amendment. The Amendment was passed to prohibit the government from imposing certain forms of heinous corporal punishment on criminals. The prohibition is not an empty vessel into which judges are free to insert their subjective understandings of “cruelty.” It is rather a substantive prohibition whose meaning was largely fixed at the time it was ratified.
Some critics speculate that the framers crafted the Eighth Amendment in intentionally broad language for the very purpose of allowing courts to apply the “cruel and unusual” standard in an adaptable manner over the course of time. There is surely something to this concern for flexibility: The Eighth Amendment can be logically extended to cover new methods of gratuitous punishment that have emerged over time, such as torture by electrocution. But this flexibility cannot be limitless: The Amendment cannot sensibly be interpreted to prohibit punishments (such as the death penalty) that were clearly considered neither cruel nor unusual at the time the Amendment was passed. This is especially true with respect to the death penalty, where today’s methods of execution are implemented much more sparingly and humanely than those countenanced by the framers of the Eighth Amendment.
One of the central purposes of a written constitution is to bind future generations to certain fixed standards and principles of justice that stay constant in the face of shifting winds. In order for this system to function, provisions such as the Eighth Amendment must have some fixed substance that exists independently of changing social attitudes. If nine out of ten Americans woke up tomorrow believing that we should start drawing-and-quartering jaywalkers, the meaning of the Eight Amendment would not suddenly “evolve” to facilitate the new consensus. The text and meaning of the Constitution prohibit such cruelty today, and will prohibit it tomorrow.
This is the basic premise that the Kennedy majority rejected, replacing it with the conviction that the Constitution is a living document whose meaning is determined by prevailing social attitudes. This is the soul of the judicial movement that has turned its back on constitutional governance. On this view, to determine whether a punishment is unconstitutionally cruel and unusual, we should look not to the meaning of that phrase as it was written in the Constitution, but rather to the meaning that (judges believe) society attaches to it today.
But what meaning does society attach to the Eighth Amendment today? Does America’s moral sense dictate that execution is a disproportionate penalty for the crime of raping a child? Do we think the electric chair serves an illegitimate retributive purpose in this circumstance? Or is it a cruel and unusual punishment? The answers are not nearly as clear or unanimous as the Court’s opinion suggests.
In fact this is a divisive issue that is far from being settled, as the controversy surrounding the Kennedy opinion indicates. Six states recently enacted the penalty. More surely would have done so but for another recent Court decision suggesting that executing child rapists was unconstitutional. The leaders of both major parties were quick to oppose Kennedy — presumably not out of a desire to contravene society’s “standards of decency” in the middle of a presidential race. At a press conference in the wake of the holding, Barack Obama commented: “I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution.” So even the most liberal member of the Senate does not have a sense of decency as highly evolved as the Court’s.
It should be no surprise that the Kennedy decision failed to capture the nation’s moral consensus on cruelty. Courts are, after all, exceedingly clumsy instruments for gauging public opinion. When they abandon the original meaning of the Constitution, they are inevitably left to decide constitutional questions on little more than their own subjective whims. Thus they declare that the Constitution lives, and then proceed to torture it until it says what they want.
– Anthony Dick is a student at Stanford Law School.