From a reader:

You wrote: “I think the death penalty is constitutional. The Supreme Court has no business saying otherwise.” Me: With respect to the emphasized portion, surely you jest. Since 1803, the Supreme Court has been the branch of the government vested with the responsibility for determining what laws do indeed comport with our Constitution. Because the 8th Amendment to the Constitution concerns “cruel and unusual punishment”, and the death penalty is certainly a form of punishment, the Supreme Court is absolutely in the business of determining its constitutionality.

Me: No, I didn’t jest. I may have clumsily explained myself. But I wasn’t jesting. If the Supreme Court itself isn’t limited by the constitution, too, then we really do live in a monarchy. Yes, the Supreme Court is empowered to rule on the constitutionality of the death penalty’s administration in a specific context. But I don’t think the Supreme Court has any business declaring expressly constitutional functions as unconstitutional. The Supreme Court has no business saying it is now constitutional to forcibly quarter troops in our homes. It has no business declaring you can’t worship whatever deity you wish. And it has no business saying that the death penalty qua the death penalty is unconstitutional when the Constitution itself recognizes the death penalty as a lawful punishment. They can say that the death penalty for stealing a candy bar is unconstitutional because that would be both cruel and unusual. But declaring the death penalty unconstitutional simply because it is a death penalty strikes me as the sort of thing the court needs a constitutional amendment to do. I am open to correction from my legal eagles colleagues, but that’s how I see it. Update: Yes, technically, the readers pointing out that rule by nine would be an oligarchy, not a monarchy, are correct.