Our Divine Tribunal

March 3, 2005

The Divine Tribunal — excuse me, I mean the Supreme Court of the United States, as it’s officially known — has decided, by a 5-to-4 vote, that executing criminals under the age of 18 is

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unconstitutional.

Where, you may ask, does the U.S. Constitution say that? Well, nowhere, actually. But the Tribunal doesn’t decide what’s constitutional by consulting the Constitution. That would cramp its style.

No, Justice Anthony Kennedy explained for the majority that there is a “national consensus” against executing minors, and that other countries don’t do it, so there you go.

Nonsense. Kennedy surely knows what the word consensus means. It means a general agreement, without significant dissent. Certainly there is no “national” consensus on this matter, as witness the immediate outrage that greeted the decision. There isn’t even a consensus on the Divine Tribunal, as witness the narrow vote.

And what foreign governments do is irrelevant to what the American Constitution means. Kennedy speaks reverently of “the overwhelming weight of international opinion,” “the opinion of the world community,” and “evolving standards of decency.” For liberals, evolving always means improving.

Kennedy also explained solemnly that young people are often less mature than adults, so they tend to make “impetuous and ill-considered” decisions. Where did he get this amazing insight? He cites “scientific and sociological studies.”

The case at hand didn’t involve some toddler. It was a Missouri case in which one Christopher Simmons, a 17-year-old boy, murdered an old woman. He tied her up, taped her eyes and mouth shut, and threw her off a bridge into a river. Then he bragged to his pals that he’d “get away with it” because he was a minor. He’d no doubt heard of judges like Anthony Kennedy, who wrote that in the case of a juvenile criminal “the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”

[Breaker quote: Another judicial outrage]

[Breaker quote: Another judicial outrage]

Sounds as if poor little Christopher needs therapy. And of course it’s his needs, not his deserts, that interest Kennedy. A youth of 17 who sees the nature of his act — something to “get away with” — isn’t a moral subject? Most small children are mature enough to know that stealing cookies, let alone drowning old women, is wrong.

This ruling is galling for those who oppose the death penalty in principle, because soft-headed arguments like Kennedy’s create the impression that only a silly sentimentalist could object to it. But that’s only part of the harm done by this decision. The rest, in the long run, is more serious.

Kennedy has further subverted the tattered American principle of federalism by assuming the Federal judiciary’s authority to strike down any state law it dislikes. The Framers of the Constitution he has such difficulty understanding knew that one way to protect liberty is to divide power. They separated the powers of the legislative, executive, and judiciary branches; and, more important, they also separated the few powers assigned to the Federal Government as a whole from the far more numerous powers of the states.

The principle is embodied in the Tenth Amendment and explained more fully by James Madison in Federalist No. 45 and by Thomas Jefferson in the Kentucky Resolutions of 1798. If the Federal Government can decide (and expand) its own powers, it’s no use having a written constitution. Federal courts will interpret it so arbitrarily that it will become meaningless, or what Jefferson called “a blank paper by construction.”

This is what Kennedy and his liberal colleagues have done once more in the Missouri case. Every state law is now eligible for review and reversal by the Federal judiciary. No matter how limp its reasoning, no matter how remote from the text of the Constitution, the Court’s word is law — constitutional law.

Liberals see the Constitution itself as “living” and “evolving” — that is, gradually turning into something that would have been unrecognizable to its authors. In fact, the process hasn’t been that gradual. It has required frequent violence to language, law, history, and logic in order to allow the Divine Tribunal to disguise its prejudices as conclusions.

Conservatives often accuse liberal justices of “legislating from the bench.” The charge is too kind. The problem isn’t that they legislate; it’s that they lie.

Joseph Sobran

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