March 01, 2005
Executing Juveniles
In a 5-4 decision, the Supreme Court now forbids the execution of juveniles: Roper v. Simmons
Scalia's dissent is stinging, and, I fear, correct. Let me explain. I am opposed to the death penalty, largely on the grounds that European nations are: it is barbaric, discriminatory, and does not deter crime. Executing juveniles and the retarded is particularly barbaric. But my value position does not therefore automatically translate into support for the majority in Roper v. Simmons. Why?
1. We live in a democratic republic. We "left-liberals" who populate rhetoric programs support greater citizen participation in public issues.
2. The Supreme Court is a "counter-majoritarian" institution. The more "democratic" we are, the more we should trust legislatures, the Congress, and other deliberative (not judicial) bodies to make decisions. Some leftists, notably Mark Tushnet (Taking the Constitution Away from the Courts)contend that we should eliminate judicial review in the US entirely, opting for legislative supremacy as in the UK and most of the rest of Europe. I am a centrist on these questions, defending judicial review when it targets discriminatory legislation that blocks minorities from representation: racial segregation, state-sponsored prayer, and sodomy laws are examples of laws made on the basis of systematic blockage of minority representation (my view is best described by John Hart Ely in Democracy and Distrust).
3. The Constitution is intended to be a clear document for "citizens," not lawyers. While common law reasoning allows for judicial innovation, constitutional law is best interpreted in as simple and a direct a way as possible--otherwise it will not be a "teachable" constitution, but rather a constitution for lawyers alone. The Constitution clearly permits the death penalty. No amount of casuistric stretching can create an interpretation of "cruel and unusual" that would forbid executions, short of amending the constitution itself.
4. While activists might find it more efficient and useful to target the appellate courts for making "legislation," the more we rely on the courts the more we disempower legislatures and Congress. The great paradox of US politics is that during the New Deal the Left defended legislative supremacy, while the Right defended judicial "activism." Now the camps are reversed (although if the American public ever gets in an economically redistributive mood again, look for the Right to discover the virtues of judicial activism).
Categories: Legal Rhetoric
Posted by jim at 07:43 PM | Comments (0)
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