Wednesday March 02, 2005

I MAY NOT KNOW MUCH ABOUT THE LAW BUT I KNOW WHAT'S RIGHT AND WRONG AND WHAT YOU'RE DOING IS WRONG. No sooner does the SCOTUS ban child executions than conservatives begin the drumbeat of accusations of judicial overreach:

Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court.

As if what was decided were a judicial chess match, rather than the fate of adolescents on death row. And as if "cruel and unusual punishment" were a phrase without meaning.

Of course, the author is "not sure about the juvenile death penalty as a matter of policy." But, but, but.

Maybe I'm projecting, or penumbrating. I've always tried, with varying levels of success, to be a nice guy, and I imagine my politics grow out of that rather than vice-versa; that is to say, I want to see the greatest good for the greatest number because that's how I was raised, not because I've read Jeremy Bentham and find the felicific calculus a sound instrument.

As my upbringing has also instilled in me a large capacity for self-doubt, I am willing to entertain arguments that, in trying to do right I have miscalculated and advocated a path that will lead to more rather than less harm. This seems to me an indispensible prerequisite of adult decision-making.

Still, if my gut tells me that the electrocution of 12-year-olds*, however depraved the child, is not a good thing, then I start from that admittedly emotional reaction and put the honus of proving otherwise on those who contend that the indefinite incarceration of lads, as opposed to their elimination, is justice denied. This is an unavoidable prejudice, but one I believe my faith in the system (our Founders', not any other) and in reason may help me to overcome.

So I am not unsusceptible to counterintuitive Constitutional arguments -- which is why I give more slack to gun-rights enthusiasts than my gut tells me to give them. But over the years I've heard lots of people whose fair-mindedness is by no means a settled matter argue that Roe v. Wade was judicial overreach, that Lawrence v. Texas was judicial overreach, that prohibitions of school prayer are judicial overreach, etc., and thought: Why, in these arguments, are you guys always on the side of less personal freedom? Where did you get the idea that the Constitution is more about restrictions to liberty than it is about the maintenance of liberty's necessary conditions? And why do I get this feeling (again, in my gut) that you are not so incensed at a violation of our founding documents as you are incensed that the freedoms guaranteed therein have led to a social condition that offends your gut feelings?

When these guys finally wrench the Court far enough in their desired direction, then we will have their kind of state, with all the child excecutions, forced childbirth, madatory prayer, and other such horrors of which they dream. Till then let us enjoy the blessings of liberty, howsoever they are bestowed.

(UPDATED with a few modest stylistic changes to make it more rabid.)

*UPDATE II. As the Times and Bull point out, the execution of offenders who were under 16 at the time of their crimes was already precluded by Thompson v. Oklahoma in 1988. Was that as much an "overreach" as the current case? Tony Scalia seemed to think so: in his Thompson dissent, he cited many precedents for executing 15-year-old killers, and argued that the Court had failed to prove the punishment was cruel and unusual (accent on the "unusual"), or even reflected "evolving standards of decency," and thus the plurality was "hoist[ing] on to the deck of our Eighth Amendment jurisprudence the loose cannon of a brand new principle" with its decision. Further:

The concurrence's approach is a solomonic solution to the problem of how to prevent execution in the present case, while at the same time not holding that the execution of those under 16 when they commit murder is categorically unconstitutional. Solomon, however, was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system.

Scalia's position might remind one of that of Starry Vere in Billy Budd. Vere also had a point -- nearly the same one. But Vere, of course, feared mutiny were he less than strict on the law. What was to be feared of the "loose cannon" in this case? Perhaps that someday someone would be emboldened by it to do... what was done yesterday. Which was not mutiny, I think, but mercy.

Take heart, those who decry this "assault on judicial restraint," as if it were to judicial restraint that you addressed your prayers at night and your thanks in moments of joy: after a few new appointments, you'll get a chance to show your devotion to judicial restraint by overturning a buttload of decisions and stripping us of a whole lot of freedoms.

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