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Tuesday, March 01, 2005

Breaking News

And by "breaking news," I mean that the news is broken.

Today, the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution prohibits the execution of 16 and 17 year olds. (Fifteen and under was already prohibited under a 1989 decision.) Well you may ask where the Constitution says the words "sixteen and seventeen year olds" in it. The answer is in the Special Emergency Imaginary Clause, which reads:

Furthermore, the Supreme Court shall decide when and if to kill anyone under the age of majority; and shall decide whether abortion shall be legal regardless of whether phrased as "choice" or "life" or any other legal rhetoric, but rather shall be decided on a "sliding scale" based on whatever the swing Justice feels is appropriate; and the Court shall moreover hold as it wishes that homosexuals are not protected, are "kinda" protected, or are fully protected, depending on what decade it is. You know. Whatever you guys think. And by the way, cops shall not be permitted to sniff a bag on a Greyhound bus, but if they grab the bag for innocent reasons and just happen to "puff" the air out of it and they get a whiff of some herb, then you can't blame them for freaking out. That's exactly what we meant by "unreasonable searches and seizures," if that wasn't clear earlier. Oh, and one more thing. Nothing in this document shall be taken to permit the President, in his sole discretion, to kidnap Americans and electrocute their genitals. We really mean that last part. And if anyone disagrees, we really think that person shouldn't be made Attorney General. But what are the odds of that?

I'm not normally one to criticize the "flexible Constitution" theory, because there are a lot of phrases in it that are purposely vague to allow the changing mores of society to impose an ebbing and flowing restraint on the power of Congress. What does "due process of the law" mean, after all, except the amount of process that people currently think is "due"? Or "cruel and unusual" punishment? I personally think that it would be "cruel and unusual" to be forced onto a reality show, but the Founders didn't think of that, and a lot of people apparently disagree judging by the recent American Idol tryouts.

But today's ruling is a beaut. It's just spectacularly wrong. It represents the very worst in Supreme Court jurisprudence, and justifies every nasty thing that Antonin Scalia ever said, with the possible exception of the line from Bush v. Gore. (A recount might "cast[] a cloud upon what [Bush] claims to be the legitimacy of his election," which is the very purpose of a recount, Sherlock). Every tinfoil-hat-wearing member of the Vast Right Wing Conspiracy just got his cause celebre; it's a Warren Report for a new century.

What is "Cruel and Unusual Punishment"? According to the Supreme Court, it is the current social mores, not only of America but also of the world. And this is where the ruling gets seriously cracked.

Back up for a second. It was bad enough in the execution-of-the-mentally-handicapped case, Atkins, when the Supreme Court looked to the most recent changes in state law to define "cruel and unusual." Back then, the idea was that because the last few states that changed their laws had eliminated execution of the mentally handicapped, there was a "trend" toward that result, and thus it was "cruel" to allow executions, even though a whole bunch of states were perfectly happy with their present laws allowing exactly that.

Got that? The "trend" was toward changing the law. Scalia had a field day with that one.

This case goes one step further.

The Court today reached its decision based not only on the trends in state law, but also on the fact that the weight of international opinion was against it. The proof of this "international opinion" was the fact that the United States and Somalia are the only countries that have not signed the U.N. Convention on the Rights of the Child. And since Somalia doesn't really have a government right now, we're really the only holdouts. So the Supreme Court stepped up and put us in line with the rest of the world.

So what's wrong with that? Pretty embarrassing, right? For a while there, it was us, Somalia and Iran, and Iran cleaned up its act. Not good company to be in.

The problem is that Congress has the power to make treaties. Congress very specifically refused to join the U.N. Convention on the Rights of the Child, and the reason why they refused to join it is because of the widespread support for the execution of 16 and 17-year-olds in America. Thus, the Supreme Court used its power to do what Congress expressly refused to do, and justified its decision with a matter expressly left to Congress under the Constitution.

What makes this worse -- for my point of view, at least -- is that I don't disagree with the general thrust behind the Court's conclusion. My own feelings about the death penalty are complex, because I have no problem with it in theory but many problems with the desperately flawed way in which it is carried out. As a result, I like the idea that the death penalty should be used sparingly, if ever, in cases involving 16 and 17 year old defendants. I want to like this decision. I don't like the idea that America is some bizarre backwater death-camp.

And worse, I despise the rhetoric of so-called "judicial activism," by which the Right accuses the federal judiciary of carrying out its own agenda and suppressing the "will of the people." Much of what is called "activism" is nothing more than "enforcing the Constitution as written." It's wishful thinking by people that would tear down our government in the name of protecting it.

But -- I genuinely think that history will see this decision as an even greater encroachment on liberty than Bush v. Gore. The Supreme Court has just engaged in a spectacular power grab, and you watched it with your own eyes.

 2:52 PM

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