The Supreme Court has once again usurped the powers of the State by
holding that juveniles cannot be subjected to the death penalty. I don't have any strong feelings about the death penalty one way or the other. But I do feel strongly that the Constitution reserves decisions like the adminstation of capital punishment to the States. The above linked article seems like a good overview of the decision, but I look forward to reading the Court's opinion and the dissent(s).
Update: I looked up the decision on Lexis. Scalia, as so often is the case, blasts the majority's rationale quite effectively. The entire dissent is rather lengthy so what follows are only the parts that I liked the most:
In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "the judiciary . . . has neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, [*99] that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation's moral standards -- and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the [*100] subjective views of five Members of this Court and like-minded foreigners, I dissent...
Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage...
Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot [*125] see how this evidence favors, rather than refutes, its position. That the Senate and the President -- those actors our Constitution empowers to enter into treaties, see Art. II, § 2 -- have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court's reassurance that the death penalty is really not needed, since "the punishment of life imprisonment without the possibility of parole is itself a severe sanction," ante, at 18, gives little comfort.
It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but [*126] insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation -- of whatever tyrannical political makeup and with however subservient or incompetent a court system -- in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason. I suspect it is most of them. See, e.g., R. Simon & D. Blaskovich, A Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies, and Public Attitudes the World Over 25, 26, 29 (2002). To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost always does, withhold the death penalty [*127] from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words, do not even speak to the issue before us here...
And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. See Larsen, Importing Constitutional Norms from a "Wider Civilization": Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283, 1320 (2004); Center for Reproductive Rights, The World's Abortion Laws (June 2004), http://www.reproductiverights.org/ pub_fac_abortion_laws.html. Though the Government and amici in cases following Roe v. Wade, 410 U.S. 113 (1973), urged the Court to follow the international community's lead, these arguments fell on deaf ears...
The Court responds that "it does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom." Ante, at 24-25. To begin with, I do not believe that approval by "other nations and peoples" should buttress our commitment to American principles any more than (what should logically follow) disapproval by "other nations and peoples" should weaken that commitment. More importantly, however, the Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our "fidelity" to the Constitution, our "pride in its origins," and "our own [American] heritage." To the contrary, they are cited to set aside the centuries-old American practice -- a practice still engaged in by a large majority of the relevant States -- of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources "affirm," rather than repudiate, is the Justices' own notion [*135] of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. "Acknowledgment" of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court's judgment -- which is surely what it parades as today...
