We know our prediction may be surprising, and may even be criticized as alarmist. Nevertheless, mark our words, Wednesday was the day when five justices on the highest court in the land made it clear that eventually — and probably sooner rather than later — they will declare capital punishment unconstitutional … and not just for this crime or that one, but across the board. Erasing the Constitution Through Evolution

We know our prediction may be surprising, and may even be criticized as alarmist. Nevertheless, mark our words, Wednesday was the day when five justices on the highest court in the land made it clear that eventually — and probably sooner rather than later — they will declare capital punishment unconstitutional … and not just for this crime or that one, but across the board.

Think about that for a minute. Believe what you will about the morality or practicality of the death penalty, the fact remains that capital punishment is explicitly contemplated and permitted by our Constitution, which specifically addresses a limited number of issues.

But such explicit constitutional approval did not matter when the High Court announced its decision in Kennedy v. Louisiana, No. 07-343 — just as it hasn’t over and over again for the past decade as a bare majority of the Court has continued to declare capital punishment unconstitutional in more and more contexts. On Wednesday, the same five justices as always — Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer — ruled that it was unconstitutional to impose capital punishment for the crime of raping a child. And, in doing so, the majority opinion didn’t once mention or even reference the multiple constitutional provisions that expressly permit the death penalty.

There was no discussion of how the Fifth Amendment states, from its very opening, that “[n]o person shall be held to answer for a capital … crime unless on a presentment or indictment of a Grand Jury.” No mention of the Fifth Amendment’s famous clause that explains “[n]o person shall … be deprived of life” — not to mention “liberty, or property” — without due process of law.” No reference to the fact that the Fourteenth Amendment reiterates the same language: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” And, not even a footnote pointing out that Article III, Section 3, a.k.a. the treason section, contemplates capital punishment using language that may be legalistic and archaic, but which remains clear: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

No, instead of considering that such explicit constitutional approval of the death penalty could mean that unelected and unaccountable judges should slow down and actually defer to the will expressed by “We the People,” the five-justice majority took another big step on the road toward declaring all capital punishment unconstitutional by interpreting a provision that does not speak specifically about the death penalty — the Eighth Amendment.

Indeed, the majority concluded broadly that the “constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish ‘be exercised within the limits of civilized standards.’” Moreover, the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” So, even “[t]hough the death penalty is not invariably unconstitutional,” the majority goes on to say that now “the death penalty should not be expanded to instances where the victim’s life was not taken.” And, that’s just the rule for now, as our society “matur[es],” further “evol[ution]” in our “standards of decency” will mean there will be more and more situations where capital punishment must be restrained.

What’s more, these five justices make it all but clear that there is little that “We the People” can do about the consistent contraction of the death penalty. That’s because, when it comes to capital punishment, the five justices believe that the Constitution — our founding document that begins with “We the People” — makes unelected and unaccountable judges the ultimate arbiters of what the Constitution means. The five justices specifically reiterate their opinion that, “in the end[,] our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” The rest of America just has to wait and see whether a majority of the highest court in the land believes that we have “matur[ed]” and “evolve[ed]” to the point that capital punishment is no longer proper — regardless of what the Constitution actually says elsewhere.

To be fair, the five justices acknowledge that Wednesday’s decision is “limited to crimes against individual persons.” But that’s not much of a concession when the Court has already claimed for itself the supremacy of determining what the Constitution means and when it means it. In other words, if “evolving standards of decency that mark [the] progress of [our] maturing society” can lead to the erasure of capital punishment from the Constitution for any set of crimes, why couldn’t it for any other? The realization that it can’t means that it’s only a matter of time before our prediction comes true.

July 26, 2008
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