Editore"s Note
Tilting at Windmills

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March 1, 2005
By: Kevin Drum

EXECUTING TEENAGERS....The Supreme Court ruled today that execution of minors is unconstitutional. Upon learning that until now only the United States and Somalia allowed this, Julie Saltman asks:

What sort of ass-backwards place is this, that it is (or was until today) one of the last two places on earth to permit the execution of children? "Overwhelming weight" indeed.

But James Joyner wonders how the court justified its decision:

I'm not a big fan of capital punishment for minors but find it incomprehensible that it could suddenly be unconstitutional. The 8th Amendment was ratified in 1791. The fact that 19 states still allowed youth executions until this morning belies the argument that the citizenry considers the practice cruel.

But that's the whole problem with strict constructionism, isn't it? After all, the text of the constitution says only that "cruel and unusual" punishment shall not be inflicted. In one sense this is clear: "cruel and unusual" punishment is directly forbidden, so the court must rule in specific cases whether it wants to or not. However, since the text provides no clue about what this means or how to decide if something qualifies as cruel and unusual, relying on it for further guidance is fruitless. What's more, harkening back to 1791 does no good either. After all, our founding fathers engaged in plenty of practices that would be universally condemned as cruel and unusual today. It can't be our purpose to freeze moral values for all time.

This is where strict constructionism flounders. As with much of the constitution, the 8th Amendment is simply too vague to be taken literally. There's no there there. But while the Supreme Court therefore has no choice but to redefine the meaning of "cruel and unusual" over time, there's no built-in algorithm that will take them there. There's no guidebook and the process is inevitably going to be fuzzy.

At the same time, even though the decisionmaking process is inevitably fuzzy, the decision itself is just as inevitably sudden. One day executing minors is OK, the next day it isn't. What other choice is there?

As for me, count me happy to leave the company of Somalia.

Kevin Drum 5:04 PM Permalink | Trackbacks

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