When our rulers on the Supreme Court invalidated the State of Louisiana’s death penalty for child rapists — in the case appropriately titled Kennedy v. Louisiana, decided June 25 — Justice Kennedy and the Court’s liberal bloc insisted that the Eighth Amendment does not mean what it meant when it was adopted. Rather, the question of what is “cruel and unusual” punishment is answered by “the evolving standards of decency that mark the progress of a maturing society.”
Such gobbledygook is the mark of Left-liberal hauteur. In an arrested-development society, getting older is not necessarily maturing, and chronological maturation is just as likely to signal devolution as “progress.”
And then there’s the ineffable disassociation with reality: Ivory-tower legal elites chattering about how we’ve “evolved” because they’ve chosen to spare from a constitutional, conspicuously humane, democratically determined capital sentence a grown man whose sexual assault of his eight-year-old step-daughter was so savage a forensic expert described the resulting wounds (which required emergency surgery to save the child’s life) as the worst he had ever witnessed.
But most nauseating is the smarm with which our self-determination is gradually eroded. The evolving standards blah, blah, blah is not a legal test. It is for five justices exactly what those justices gave the child-rapist: a license to mutilate. How insulting to our collective intelligence that we’re all supposed to go along as if we don’t get that. Don’t you feel good about yourself? You’re evolving — or, better, being evolved.
The vaporous slogan posing as a standard is the spoon full of sugar that helps the Court’s enlightened medicine go down. The handiwork that results is not a reflection of our evolved values; it is five lawyers dragging the benighted masses kicking and screaming toward its Utopia — where brutalized eight-year-old girls, like murdered innocents and terrorized cities, are not flesh-and-blood but the props by which we measure how “maturely” we indulge their tormentors.
And now, it turns out, so brazen was Kennedy’s power grab that the usual veneer — cloaking judicial tyranny in a self-celebration of societal “progress” — couldn’t even make it through two weeks.
The evolving standards Justice Kennedy purported to find stemmed from what he took to be a national “consensus” against capital punishment for child rape. The furious public outcry after the ruling was a pretty good sign that something was amiss in the majority’s survey. Nevertheless, the Court observed that of the 36 states that provide for capital punishment, six make it available for child rape — which Kennedy & Co. somehow take to mean that about 83 percent of death-penalty states, and 88 percent of the nation at large, must be opposed to the execution of such heinous criminals.
Of course, even if the Court’s intuition were right, it would be irrelevant. The point of the Eighth Amendment was not to impose a centrally-mandated definition of cruelty on the American people. It was to deny the national government the power to impose barbaric sentences. And it had little, if anything, to do with the death penalty, which was so patently understood to be normative that it is alluded to several times in the Constitution — notwithstanding that the modern Supreme Court’s liberal bloc is itching to find capital punishment unconstitutional, taking the absence of death penalty sanctions in 20 states as yet another growing consensus toward which we are evolving.
Turning to the national government, the Kennedy majority pronounced that it, too, had evolved toward consensus:
As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim’s death.
Well, not exactly.
Justice Kennedy was wrong. As reported by a military-justice blog (in a contribution by Dwight Sullivan, a civilian-defense counsel who handles appeals in the Air Force system), it turns out that less than two years ago, in 2006, the American people’s national legislators enacted a law, applicable throughout the United States, that expressly provides for capital punishment in rape cases.
Specifically, as part of the National Defense Reauthorization Act, Congress added child rape to the crimes for which the Uniform Code of Military Justice prescribes death as a potential sentence. The victim needn’t be killed for the accused to be “death eligible.” Moreover, as the New York Times reports, last September (that would be ten months ago), President Bush issued an Executive Order inscribing the death-for-rape provisions in the 2008 edition of the Manual for Courts-Martial.
In point of fact, if there actually was a national consensus, it trended toward discouraging child rape by making execution an available sanction. Unlike the numbing refrain that every “progressive” scheme from environmentalism to gun-control must be adopted “for the children,” that consensus reflected a commonsense protection of actual children — something we might think of as real evolution in a society that truly is maturing.
So much for democracy. What we’re left with, instead, is far from consensus. It’s a threadbare division of nine lawyers, five of whom impose their whims and call it “progress.”
— National Review’s Andrew C. McCarthy is author of Willful Blindness: A Memoir of the Jihad.