The Week

McDonald’s has banned smoking in its U.S. company-owned restaurants, thus preventing a drastic fall in annual burger sales. Without the ban, Hillary wasn’t going to let Bill eat there any more.

Having already suffered the rule of Harry Black-mun’s conscience for two decades, the nation is called upon to applaud its delicate flutterings one more time. That conscience, while it has little to offer the innocent unborn, agonizes over the death penalty for serial killers, torture-murderers, and those who rape 11-year-old girls and then suffocate them by stuffing their underwear down their throats. If we have to be ruled by consciences rather than by law, Justice Blackmun’s conscience does not seem up to the task. But that is not to deny that there is a problem with the death penalty. There is—and the Supreme Court contrived it. On the one hand, the Court said in 1976 that capital punishment is constitutional only if states adopt thorough and precise standards to ensure that sentences are meted out uniformly. On the other hand, the Court also said in 1976 that capital punishment is constitutional only if states take aggravating and mitigating circumstances into consideration in every case. Justice Blackmun would resolve this tension by imposing the dictate of his own conscience that capital punishment is immoral and hence unconstitutional. Justice Scalia would resolve the same tension—by resolving it. He would restore the law to what it was for the first 187 years of our Republic and allow states to determine their own criminal penalties and procedures. Justice Scalia’s jurisprudence is the better—among other reasons because it expresses the principle that a judge’s conscience should obey the law, not seek to shape it.

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McDonald’s has banned smoking in its U.S. company-owned restaurants, thus preventing a drastic fall in annual burger sales. Without the ban, Hillary wasn’t going to let Bill eat there any more.

Having already suffered the rule of Harry Black-mun’s conscience for two decades, the nation is called upon to applaud its delicate flutterings one more time. That conscience, while it has little to offer the innocent unborn, agonizes over the death penalty for serial killers, torture-murderers, and those who rape 11-year-old girls and then suffocate them by stuffing their underwear down their throats. If we have to be ruled by consciences rather than by law, Justice Blackmun’s conscience does not seem up to the task. But that is not to deny that there is a problem with the death penalty. There is—and the Supreme Court contrived it. On the one hand, the Court said in 1976 that capital punishment is constitutional only if states adopt thorough and precise standards to ensure that sentences are meted out uniformly. On the other hand, the Court also said in 1976 that capital punishment is constitutional only if states take aggravating and mitigating circumstances into consideration in every case. Justice Blackmun would resolve this tension by imposing the dictate of his own conscience that capital punishment is immoral and hence unconstitutional. Justice Scalia would resolve the same tension—by resolving it. He would restore the law to what it was for the first 187 years of our Republic and allow states to determine their own criminal penalties and procedures. Justice Scalia’s jurisprudence is the better—among other reasons because it expresses the principle that a judge’s conscience should obey the law, not seek to shape it.