THE WANDERER, MARCH 10, 2005
JOSEPH SOBRAN'S
WASHINGTON WATCH
Not Again!
The U.S. Supreme Court says that executing killers
under the age of 18 violates the Constitution of this
country because other countries don't do it. Speaking for
the majority in a 5-to-4 ruling, Justice Anthony Kennedy
delivered himself of the opinion that such executions
violate "evolving standards of decency" recognized by
every country but this one. He appealed to "the opinion
of the world community."
Justice Kennedy isn't noted for his Aristotelian
logic. It seems not to occur to him that standards that
can "evolve" aren't standards at all. But then, this is
the same justice who has held that laws against abortion
are unconstitutional because everyone has the right to
define the meaning of the universe for himself.
He thinks like an undergraduate who has been briefly
exposed to Hegel, then started reading editorials in THE
NEW YORK TIMES.
As usual, Justice Antonin Scalia pounced on this
liberal mush. He reminded his colleagues that "foreign
sources" aren't appropriate guides for interpreting our
Constitution. Not that such obvious considerations can
make a dent in Kennedy's thinking, as Scalia must know by
now.
Kennedy also cited "scientific and sociological
studies" finding that minors more often than adults show
a "lack of maturity and an underdeveloped sense of
responsibility," leading them to make "impetuous and
ill-considered actions and decisions." No kidding? You
don't say! Well, shiver my timbers!
This might do if a child of five were on trial for a
capital crime, but in the case under review the killer,
one Christopher Simmons, was a lad of 17 who had murdered
an old woman and bragged to friends that he could "get
away with it" precisely because he was a minor.
This was a cold-blooded kid who knew exactly what he
was doing: He bound the woman, taped her eyes and mouth
shut, and threw her off a bridge to drown. He also knew
exactly what jurists like Justice Kennedy were doing.
Kennedy even cited a "national consensus" against
executing juveniles, which suggests he doesn't get
outdoors very often. A consensus is a general agreement
with little dissent; but many people feel strongly that
killers like Simmons are old enough to know better and
can't be excused by youth. I once kicked an old woman --
my grandmother -- and I was immediately ashamed, though I
was only about four. (Grandma, I'm so sorry! I love you
so much!)
I think the death penalty is wrong, because the
state shouldn't have the power to kill. But this isn't to
say that some people don't richly deserve it; the point
is that it's not the state's place to inflict it. Some
people deserve to be tortured to death, but we don't want
the state doing that either.
The Forgotten Tenth Amendment
Furthermore, the court's duty is to apply the
American Constitution, not the consensus of the United
Nations. Federal courts aren't assigned to supervise
criminal law in the states. This court has a feeble grasp
of such principles as federalism, limited government, and
the separation of powers. Its latest ruling is one more
judicial usurpation of the powers reserved to the
individual states.
Unfortunately, not even Scalia and Clarence Thomas,
usually fearless dissenters, seem to want to bring the
Tenth Amendment to bear. Their predecessors under
Franklin Roosevelt (accursed be his name) pretty much
declared the Tenth a dead letter, and so it has remained
-- though the Constitution makes no sense without it. Its
absence leaves the "general government" free to define
its own powers.
Needless to say, the court's worst usurpation was
its 1973 ruling that state laws against abortion violated
the Constitution. Almost nobody at the time saw
(certainly I didn't) that this decision was not only
monstrously immoral, but in gross violation of the Tenth
Amendment, denying even a state's power to protect the
innocent from violence.
Revolution within the Form
Despite its semblance of the rule of law, the
federal judiciary, like the federal government itself, is
essentially lawless. America has experienced what Garet
Garrett, following Aristotle, called "revolution within
the form" -- an invisible and unacknowledged change in
its basic nature, which few of the ruled realize has
changed at all.
The revolutionaries realize that their power depends
on the illusion of continuity. The overturning of
fundamental principles, the destruction of tradition, the
creation of new powers -- these must all be presented as
mere "reforms."
Kennedy wasn't on the court in 1973 -- he was a
Reagan appointee -- but, though Catholic, he soon turned
out to be reliably pro-abortion. How ironic that he
should give the value of a young criminal's life as a
reason for exempting him from the death penalty, for "the
state cannot extinguish his life and his potential to
attain a mature understanding of his own humanity"!
In a separate dissent, Sandra Day O'Connor admitted
regretfully that she couldn't find a constitutional basis
for banning juvenile executions, but agreed with Kennedy
about this country's "evolving understanding of human
dignity [which] certainly is neither wholly isolated
from, nor inherently at odds with, the values prevailing
in other countries," et cetera.
I always worry when justices use the words
"evolving" and "inherently" along with lots of commas. It
means they think they're being nuanced.
The Liberal Universe
Yes, the court has certainly shown its evolving
grasp of human dignity in its abortion rulings! Honestly,
I don't know how people like Kennedy and O'Connor live
with themselves. I myself couldn't bear to live in a
universe I thought was devoid of norms and logic. It
would be too depressing.
Besides, this style of liberal thinking is just
plain quaint. It was exhausted in the 20th century, when
its essential nihilism was subjected to vigorous
conservative criticism. Yet it continues to carry on,
with zombie-like energy, as if its weary ideas were still
fresh and compelling.
Could there be, in other words, a more joyless,
boring job than being a liberal spokesman, making a
career of negating great truths? How can anyone
passionately believe in, for example, the necessity of
removing the Ten Commandments from public places? Just
who would be better off if you should succeed?
And it must be embarrassing to be so predictable as
Justice Kennedy, to repeat yourself so formulaically day
after day, year after year, never offering a fresh
insight or even coining a new phrase.
Justice Scalia can still startle us, sometimes by
being wrong; but, right or wrong, he constantly displays
the vigor of an active mind. And I don't think he has
ever used the word "evolving."
+ + +
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