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The Supreme Court vs We the People

Is American law now determined by one man as in a science fiction drama?
June 28, 2008
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By Vincent Gioia

Thanks to the flappable Justice Anthony Kennedy the Second Amendment remains in the constitution but it is outrageous that four members of the court wanted to throw it out. (see Scalias Opinion)

Justice Antonin Scalia wrote a precisely clear opinion upholding the right of the people to keep and bear arms on an individual basis. But the ink wasn’t dry before leftists of all stripe "found" language in the opinion that will allow other judges to confirm all manner of restrictions on gun owners’ rights. Unfortunately Scalia probably had to include some of these loop holes in the opinion to placate Justice Kennedy so he would join the majority of five.

But how perilous is our freedom when a population of 300 million Americans is at the mercy of nine unelected people in black robes? This is reminiscent of some "sci fy" dramas where one or a small group governs a planet of sheep-like beings.

Recent history is replete with judicial action overturning the will of a majority of voters and citizens in our country. When the judiciary has the power to impose their social views on the public regarding how people should act and think, then the constitutional prescription of three equal branches of government is meaningless. The most tragic part of the story is that the brave men who created the United States of America gave everything to design a brilliant unique government with checks and balances so that no one branch could dominate the others and the country. Yet now we have judges around the country that put themselves above the law by making law on their terms.

Sadly the U.S. Supreme Court, the final arbiter of what does and does not conform to the constitution, is a part of this coup d‘e tat. Justices who don’t respect the constitution as worded are determined to change our government by fiat and it only takes five of them to do that.

Decisions of the U.S. Supreme Court have now returned to a 5 to 4 divided court outcome with the unpredictable Anthony Kennedy holding the decisive vote between four liberal justices who regard the constitution merely as a "guide" rather than the law of the land by which legislated law is to be measured for constitutional compliance, and five justices who have read the constitution and believe it says what it says.

This nation’s founding document is not a "living" law, meaning its interpretation should change with the times; it is a carefully worded construction of fundamental rights designed for the ages limiting authority of a federal government while guaranteeing rights to its citizens. The Second Amendment is an insurance policy reserved for citizens in the event something goes horribly wrong with the execution of the constitutional grand design and the governed have to take action to correct a recalcitrant government. Fortunately in the Second Amendment case decided recently, Kennedy was persuaded to join the group of colleagues who actually understand and respect the constitution.

However, to demonstrate his meager understanding of the constitution, Kennedy wrote the majority opinion in the 5 to 4 decision that said it was unconstitutional to apply the death penalty to a crime in which no one was killed. The crime was the brutal rape of an 8 year old girl and a court in the state of Louisiana sentenced the criminal to death in accordance with state law. Kennedy and the four liberal judges said the death penalty in this case was "cruel and unusual" punishment in violation of the Eight Amendment; however what Kennedy and his gang of four failed to consider is that to be unconstitutional the punishment must be "cruel AND unusual" to be prohibited.

The death penalty for crimes involving no death has been applied for centuries; for example; in the old west cattle rustling was a capital offense and hanging was the penalty de jour. The death penalty is hardly unusual and though some may consider it cruel, putting someone to death for a crime not involving the death of another was considered an appropriate penalty. To say now that the heinous rape of a child, more serious to the victim than is loss of cows to their owner, is not worthy of a death penalty under the constitution when the citizens of a state think otherwise is making a mockery of the constitution. Justice Kennedy and the four liberals would rather consider the law of other countries rather than the clear wording of the constitution.

The subject of this constitutional failure of interpretation is the case, Kennedy v. Louisiana, No. 07-343 is an appeal by one of the two Louisiana inmates, Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Mr. Kennedy’s conviction and rejected his challenge to the constitutionality of his sentence.

In the majority decision Justice Anthony M. Kennedy, said there was "a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons," even such "devastating" crimes as the rape of a child on the other. The court went beyond the question in the case and ruled out the death penalty for any individual crime — as opposed to "offenses against the state," such as treason or espionage — "where the victim’s life was not taken."

Since this was the third high court decision in the last six years to place a categorical limitation on capital punishment; (In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18), the possibility exists that the four liberal judges are seeking to move the court toward the abolition of capital punishment, which Justice John Paul Stevens called for in an opinion two months ago.

Kennedy decision relied heavily on the question whether the death penalty was so disproportionate to the offense as to amount to cruel and unusual punishment, in violation of the Eighth Amendment. The court’s modern precedents interpret the Eighth Amendment according to "the evolving standards of decency that mark the progress of a maturing society." Note that according to Kennedy clear language of the constitution must be reinterpreted "according to evolving standards" of society’s views of "decency."

So rather than using its actual words to govern the high courts decision making, according to Justice Kennedy and friends the constitution may be judicially rewritten by as few as five people in black robes who are supposed to be its guardian.

Justice Kennedy said there was a national consensus against applying capital punishment for the crime (for which no statistical basis was cited); as if the matter of constitutionality was to be judged according to national polls – how ridiculous it is to use assumed, or even real, public opinion polls as a basis for applying constitutional law to a matter before the court. If public opinion is for a change, the constitution provides the ground rules for its amendment and it does not say the U.S. Supreme Court is the remedy.

It is not for the court to, in Justice Kennedy’s own words, reach a judicial conclusion based on "our own independent judgment about the implications of extending the death penalty to child rape as well as on the fact that the great majority of states have declined to do so."

The Louisiana law extending the death penalty to the rape of children under the age of 12 in Louisiana was enacted in 1995. States that followed the Louisiana law are Georgia, Montana, Oklahoma, South Carolina, and Texas. Because unlike Louisiana; those states all require that a defendant must have a previous rape conviction or some other aggravating factor in order to be subject to the death penalty, Justice Kennedy said there was thus a national consensus against applying capital punishment for the crime.

In a dissenting opinion, Justice Samuel A. Alito Jr. sharply disputed this conclusion. He said that because many judges and lawyers had interpreted a prior case (the 1977 Coker decision) as barring capital punishment for any rape, state legislatures "have operated under the ominous shadow" of that decision "and thus have not been free to express their own understanding of our society’s standards of decency."

The fact that six states in modern times have nonetheless enacted such laws, Justice Alito said, "might represent the beginning of a new evolutionary line" that "would not be out of step with changes in our society’s thinking since Coker was decided." He said there were abundant indications that society had become more aware of and concerned about sex crimes against children.

Those who voted with Justice Kennedy in the majority were Justice Stevens and Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Chief Justice John G. Roberts Jr. joined the dissent, along with Justices Antonin Scalia and Clarence Thomas.

Addressing the separate question of the court’s "own judgment," Justice Kennedy suggested that the flow of death penalty cases for child rape could overwhelm the country’s criminal justice system. He noted that in 2005 there were 5,702 reported rapes of children under the age of 12.

"In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment," Justice Kennedy said, "we have no confidence that the imposition of the death penalty would not be so arbitrary as to be freakish."

He continued: "We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim."

Justice Kennedy also said capital punishment for child rape presented specific problems, including the "special risks of unreliable testimony" by children and the fact that the crime often occurs within families. Families might be inclined to "shield the perpetrator from discovery" when the penalty is death, he said, leading to an increase in the problem of under-reporting of these crimes.

Justice Alito, in his dissenting opinion, said these concerns were "policy arguments" that were "simply not pertinent to the question whether the death penalty is ‘cruel and unusual’ punishment." He said the Eighth Amendment "does not authorize this court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."
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Vincent Gioia is a retired patent attorney living in Palm Desert, California. His articles may be read at www.vincentgioia.com and he may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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