Posted by Brad @ 4:42 pm on June 26th 2008

The Other Supreme Court Decision

While D.C. v. Heller is justifiably the marquee decision everyone is talking about, the court also laid out another pretty interesting ruling in Kennedy v. La. At issue was whether crimes besides first degree murder, in this case the rape of someone under the age of 12, can qualify for the death penalty. Of the 3,300 death row inmates in America, only two are there for crimes other then murder, and both for child rape in Louisiana. Still, philosophically, it’s an important question.

Which is why it was somewhat surprising that in another 5-4 decision, the court struck down the LA law as unconstitutional. In the ruling, the court declared that the death penalty could only be used for murders and those who commit crimes against the state (i.e. treason).

It’s an interesting matter to get your head around, because it’s an integral question of ethical philosophy. If capital punishment is legitimate, why wouldn’t it be left to the legislature to determine where and how (how, assuming it doesn’t qualify as cruel and unusual) the penalty is applied? Or, even more fundamental, what makes treason worse then child rape?

I think in some ways it’s a poor decision (The Liberty Papers convincingly make the case here), but legitimately poor, if that makes any sense. I think the philosophical justification for capital punishment is pretty shady itself, so once you get in there and try to draw sensible and rationale lines around it, it follows that you’ll have a hard time making those lines look very objective. It becomes sort of like the constitutional question of how to define porn. On the question of capital punishment, it seems to me you either allow it carte blanche, or don’t allow it at all. The middle ground position doesn’t make a whole lot of sense.

Which is why, though I agree with the Liberty Papers that this was a poor decision, as somebody opposed not just to the death penalty but the constitutionality of the death penalty (in the broadest sense), I take heart in the decision. Because it’s illustrative of exactly the kind of problems the death penalty as a constitutional question begs constantly, and I have a feeling that future justices, in looking back on this decision and the constellation of decisions surrounding it, are going to come to the same conclusion that I have…either allow it or don’t. And I like those odds, in an increasingly liberalized and progressive America (particularly where the USSC has shown a lot of timidity and wishy-washiness on the matter in the last several decades), and at some point that question is going to force itself. There’s just no way around it.


  1. I’m not with you on the constitutionality of the death penalty, but I agree with pretty much everything else you and Mataconis have to say here.

    There is no point in making an eighth amendment case against specific applications of the death penalty if one grants the fact that the penalty itself is Constitutional. At that point, one is engaged in judicial policymaking, not constitutional interpretation.

    It is a good policy decision which the Supreme Court had no business making.

    Comment by Rojas — 6/26/2008 @ 7:25 pm

  2. Agreed on all counts.

    I personally like the decision because, in its badness, it underlies the ambiguity and tar pit nature of the constitutional application of the death penalty generally. But certainly, it’s a perfect example of the “you can’t have it both ways” nature of something like the death penalty.

    Comment by Brad — 6/26/2008 @ 7:43 pm

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