Seeing the juvenile death penalty overturned today was good in a number of ways—the reading of the constitution that says the 8th amendment is malleable is plausible to me—but the 5th amendment reading other people are putting forward is not. Already there are calls to overturn the death penalty altogether on constitutional grounds. These, however, are not plausible.

I should be happy with today’s ruling, but I’m not. Most of the people calling for a complete overturn of the death penalty have apparently not read the constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note that it is constitional to take a life provided that due process is provided. The death penalty is mentioned elsewhere in the constitution and the country’s history doesn’t support a conclusion that it is unconstitutional.

The references to international law are a bit galling as well. I looked at the opinion and Kennedy did limit those references and stated that they had no legal weight. If so, why mention them? I'm with Scalia: if the Justices want to indulge their curiosity, fine. Just keep it out of their opinions.