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.
Unlike my co-blogger, I tend to think that the Supreme Court’s decision in Roper v. Simmons was the morally correct one—in general, I am suspicious of the death penalty not for legal or practical reasons, but philosophical ones; namely, that the state should not have the power to kill its own citizens, whether or not they are of some arbitrary age. Having said that, like Will Baude, Steven Taylor, and James Joyner I am deeply skeptical of any form of legal reasoning that relies on state legislatures to decide the constitutionality of various actions. I may have more coherent thoughts once I’ve actually sat down with the opinion… which comes at a fortuitous time, as we will cover the 8th amendment on March 16th in my con law class.
In other judicial news, I tend to think the Padilla case was correctly decided (both on the legal merits and the moral ones), following most generally from Hamdi (particularly Scalia’s partial dissent, which I think articulated the correct standard) and Ex parte Milligan.
Monday’s Telegraph carries a report that the Saddam loyalists in the Iraqi insurgency may be willing to give up their fight in exchange for Saddam not getting the death penalty. (þ: memorandum)
Meanwhile, the real Olympic bomber, Eric Rudolph (not to be confused with Richard Jewell), avoided the death penalty for his mid-90s bombing spree in Alabama and Georgia this week by revealing information, including the location of weapons caches, to federal authorities.
Of course, if monsters like Saddam and Rudolph aren’t going to get the death penalty (even if they deserve it—an argument that could easily be made for both men), I’m not at all convinced that anyone else should get it—even putting my philosophical problem with the death penalty aside.