March 4, 2005

Much has been written by some very astute observers about the Supreme Court's decision this week that it is unconstitutionally cruel and unusual punishment to execute murderers who committed their murders while under the age of eighteen. I will not attempt to replicate the good analysis of the Court's opinion that is available all over the internet, but as an attorney who has read the opinion, I would like to share some thoughts and a story of what some interesting people think of the Court's action.

My first thought is that most of the punditry about the decision (Roper v. Simmons) is correct that the Supreme Court pretty much made it all up, as opposed to applying existing law. I've read the decision and it is true: the 5-4 majority started with a conclusion and worked backwards, and did so poorly. As a matter of fact, they had a lot of tap-dancing to do to explain why their own Supreme Court decision of just fifteen years ago that squarely said the exact opposite no longer applies. So what changed in fifteen years? The Constitution has not been amended; it still says the same things. The makeup of the Court has changed, but that's not supposed to make a difference, if we live under the rule of law and not men. European attitudes toward capital punishment in general haven't changed, either. What has changed is the willingness of the US Supreme Court to ignore both the unchanged US Constitution, and the laws of states previously held to be valid by the same Court; it ignores all of that and instead embraces the laws of other countries.

The bad news is that you no longer live under a stable Constitution. The bad news is that when you go to the voting booth to elect representatives to express your will under the Constitution, it is a meaningless exercise. In the hands of this Court, the Constitution simply does not exist and can be ignored anytime the justices wish to apply the personal moral views of five people (out of nine justices) to all American citizens. Even worse bad news is that we are now, in effect, ruled by other people in other countries, and cannot vote for them and probably will never even know their names. Some private school students will recall that a revolution was once fought in this country over that sort of thing.

The good news is that the Supreme Court is now coming under some scrutiny. Many in the alternative press are actually reading the Court's opinion and reporting what the justices are doing, that is, subjecting the United States Constitution to interpretation through the lens of what non-American governments think. This is the start of a good trend. When CourtZero.org was founded, the whole purpose of that website was to actually explain what the courts are saying and get people talking about what that means to the notion of representative government and self-determination. It is a good thing that people are beginning to wake up. Still, the Court holds all the power, and we must obey its ruling. What else can we do? Where's Andrew Jackson when you need him?

Before I continue, I must insert a disclaimer of sorts. I am aware that many free-market thinkers oppose the death penalty on principle. In my own life, I am acquainted with many people who do not support the death penalty either for emotional, religious, moral, or practical reasons. I have no quarrel whatsoever with anyone who does not wish for legal executions to occur. I truly can see both sides of that argument. Nevertheless, the US Constitution does expressly authorize capital punishment, and does not outlaw cruel OR unusual punishment, only cruel AND unusual punishment. The difference is supposed to be important. Is the execution of someone who committed a premeditated and brutal murder at the age of seventeen unusual? Yes, it is, and thank God that it is. Is it cruel to carry out that sentence? I do not think so, and neither do most states that have the death penalty.

And this leads me to the experience I had earlier today. I was in a meeting of seven people, including myself. Six were female, and one was male. Two were black, and five were white. Three were attorneys, one there giving free legal services to the poor, one representing a poor person, and myself. Three of us were female social workers, intent upon providing needed services to a family in crisis, and the last member of the group was the poor person in need of those social services. In a nutshell, our little group did not the profile of a hard right-wing group of people.

At the close of our business, one of them asked, in conversation, whether we'd heard news that a school bus driver had been killed by a student. I remarked, "He doesn't have to worry about the death penalty." At that point an interesting discussion began. One of the black women, an attorney with long experience as a defense attorney in juvenile delinquency cases, made it clear that "some little kids aren't so little", expressing that many teenage criminals, for whatever reason, have very adult minds when it comes to crime. We understood what she meant. Anyone who hangs around a juvenile courthouse for very long gets it. It's common sense. Some, but not all, teenagers who commit horrible crimes know exactly what they are doing in a way that will not be enhanced magically by turning eighteen, or turning forty-five, for that matter.

We talked about that for a while, and came to the consensus that only one of us disagreed with whether or not the death penalty should be available to teen murderers tried as adults. It was then that I commented, as I expressed in my disclaimer above, that good people can disagree on the death penalty for moral or emotional reasons, but I asked, "Does anyone think the Supreme Court was right in declaring it unconstitutional?" The immediate and animated response, from every single person, was that the Supreme Court's decision was just plain ridiculous.

I recognize that this experience was not in the form of a scientific poll, but I do think it significant in that the Supreme Court made its decision based, in part, on what it called a "national consensus". They really will do anything to avoid actually looking to the Constitution when interpreting the Constitution. Here, in a little meeting, I had six people disagreeing with the Supreme Court in all respects, and seven out of seven disagreeing with the Supreme Court on its interpretation of the Constitution. Again, this wasn't a meeting of the Angry White Male Gun Club of Ocala; it was a meeting of social workers and attorneys for the poor, and one bona fide representative of the actual poor and downtrodden.

So where does the Supreme Court find its "consensus" in the face of the Constitution and its own recent ruling? It wouldn't find it in the room I was in today. The Court vaulted over common sense - one of the black woman attorneys told me that this decision is going to empower street gangs to force kids to commit the worse crimes, and I believe her - the Court also vaulted over the professional opinions of the experienced and learned, and compassionate people in that room. The Court also vaulted over the Constitution, for those who care about such things, in favor of using a UN treaty that the United States expressly did not sign as precedent to decide the laws of American States.

As we like to say at CourtZero.org, "The courts have ruled us, now let them enforce it!" That should become a rallying cry, as more and more regular folks begin to realize that the Supreme Court is exercising ultimate power only so long as we allow it.