Posted by
HUMIN on Saturday, June 28, 2008 4:52:15 PM
An Indecent Decision
by Matthew Continetti - Weekly Standard
What are the scariest words in constitutional law these days? “Justice Kennedy delivered the opinion of the Court.”
Earlier this term, Kennedy wrote the 5-4 opinion that extended
habeas corpus rights to foreigners captured abroad and held on foreign
soil. Such a right had never been granted in American history. This was
a victory for the terrorists held at Camp Delta in Guant namo Bay,
Cuba, who now can challenge their detention in federal courts.
For his next trick, Kennedy wrote last week another 5-4 opinion
declaring the death penalty for child rapists unconstitutional. In so
doing, the Court invalidated statutes in six states and quashed similar
laws under consideration in five other states. Chalk this up as an
emphatic defeat for constitutional self-government and a victory for
petitioner Patrick Kennedy, the New Orleans man who in 1998 brutally
raped his then-8-year-old stepdaughter. Kennedy (no relation to our
justice) was sentenced to death in 2003. Now he’ll live.
You don’t have to support the death penalty in order to find the
Court’s decision appalling. The reasoning is terribly flawed. The
intellectual backflips Justice Kennedy performed in his opinion would
be impressive if they weren’t so offensive to constitutionalist
sensibilities.
First, the justice argued that “there is a national consensus
against capital punishment for the crime of child rape.” How did he
determine this? By observing that only six states have statutes
allowing the death penalty in such cases. “By contrast, 44 States have
not made child rape a capital offense.” But this judicial beancounting
ignores the difficulties legislatures face in enacting capital punishment laws thanks to recent Supreme Court precedent.
Read the whole article here.