OP-ED: America's evolving standards

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By Ben Domenech

Evolving standards can be difficult to discern. As the American people are finding out in 2008, thanks to the ever-shifting demands of modern political campaigns and two Supreme Court decisions in the past week, they can now witness an incredibly accelerated Darwinian process before their very eyes in the person of Barack Obama.

The first case, Kennedy v. Louisiana, is simple in its horrifying details. A man – if you can call him that – brutally rapes his 8-year-old stepdaughter. He is tried by a jury of his peers and sentenced to death in accordance with state law. There is no question of guilt – but the Supreme Court decides five years later, based primarily on what Justice Anthony Kennedy describes as “evolving standards of decency,” that the punishment is too severe. Despite the fact that the overwhelming trend in America has been toward expanding the use of capital punishment for the violent and predatory marauders of children, Justice Kennedy in his insight detects a trend in the opposite direction out of invisible air.

Such is his right, of course. Justice Kennedy does not have to answer for his view on this matter in the public square, at least not in an unfriendly venue. But Sen. Barack Obama does. And his answer was a marvelous thing to behold.

Sen. Obama has been a longtime critic of the death penalty. In “The Audacity of Hope,” he wrote that he believed the death penalty “does little to deter crime.” When he first ran for the Illinois state Senate in 1996, Sen. Obama said in answering a campaign questionnaire that he opposed capital punishment. As a State Senator, Obama was the only member of the chamber to vote against a bill prohibiting convicted criminal sex abusers from early release programs. He was in favor of reducing the number of crimes eligible for the death penalty, telling the Jim Lehrer Newshour in 2002, “We certainly don't think that we should be ... have this laundry list that does not make any distinctions between the run-of-the-mill armed robbery that results in death, and systematic killings by a terrorist organization.” And State Sen. Obama spoke positively about then-Governor George Ryan´s craven attempt to distract from his legal troubles by absolving all 167 of Illinois´ death row inmates – including William Peeples, who in 1988 murdered 24-year-old Dawn Dudovick. Peeples, who had spent time in prison for the attempted rape of a 13-year-old girl and been arrested for stabbing another man, stabbed Dudovick 39 times with a nine-inch butcher knife after knocking on her door to ask for a cup of sugar. Perhaps that´s just another “run-of-the-mill armed robbery,” or perhaps this columnist´s standards are insufficiently evolved.

Just last year, Sen. Obama told the New Republic why he didn´t pretend to be “a cheerleader” for capital punishment in his Senate race: “[My] own views on the death penalty are very complicated. … So for me to try to pretend that I was a cheerleader for the death penalty, simply to score a political point, that wasn't reflective of my views.”

When confronted with a case so stark, and one that brings to mind the infamous question that faced Michael Dukakis in his 1988 presidential debate, how would Sen. Obama respond? But of course, we know that already: by evolving with the grace and dexterity of a practiced professional in the art.

“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Sen. Obama told reporters after the decision was announced. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

The second case, of which the Beltway population is very well aware, concerned the first case in over a century that determines the scope of the Second Amendment´s protection for an individual right to keep and bear arms. On this matter, Sen. Obama had been equally definitive. Just this November, when asked by the Chicago Tribune about their candidate´s opinion, the campaign responded that “Sen. Obama believes the D.C. handgun law is constitutional.” In the Illinois State Senate, he voted to ban gun shows, supported limiting citizen´s right to purchase guns, opposed allowing retired police officers to have the right to concealed carry, and opposed protecting homeowners who fire upon an intruder in self defense from lawsuits. To this day, he supports overriding state laws with a nationwide federal ban on concealed carry permits.

On this case as well, Sen. Obama evolved. In this case, the word the campaign chose to use was “inartful.” “That statement was obviously an inartful attempt to explain the Senator's consistent position,” spokesman Bill Burton told ABC News.

Barack Obama, it appears, does not know the Barack Obama who believed the DC gun ban, the most extreme in the nation, to be constitutional.

No word on whether this newly expansive interpretation, one that Sen. Obama has never supported before, marks a change in his opinion about potential judicial appointees. “Justice Breyer, Justice Ginsburg are very sensible judges,” he told Wolf Blitzer a mere two months ago. “I think that Justice Souter, who was a Republican appointee, is a sensible judge.” All three of Sen. Obama´s favorite justices voted to effectively ban the death penalty for child rapists, no matter how many times they are convicted; all three voted in opposition for an individual right to keep and bear arms – but we can safely say the media will give the Senator a pass on this fact.

No, there will be no significant penalty for these flip-flops. Just as there was no significant penalty for Sen. Obama´s blatant flip-flops on public financing (while assuring us that he is just pursuing a different form of “public” financing – from his well-heeled donors), the gas tax holiday (supporting it when gas was $1.52, opposing it today), or whether he will talk to the heads of terrorist regimes without preconditions.

On the other side of the aisle, Sen. John McCain has been definitive in his support for gun rights, including signing a significant amicus brief in the recently decided case. And on capital punishment, consider the response of Louisiana Gov. Bobby Jindal. Terming the ruling an “affront to the people of Louisiana,” and denouncing the Supreme Court´s language that “the death penalty is not a proportional punishment for the rape of a child” as “incredibly absurd,” Gov. Jindal took his pen to the page to sign an act that authorizes the castration of convicted sex offenders. Louisiana Judges will now have the right to order castration after the first conviction, and will be required to after the second – and the offenders will still have to serve out their sentences afterward.

Some people are still less interested in evolving standards, it seems, than they are in a simpler term: justice. Perhaps this is the difference between what makes a politician, and what makes a leader.

Ben Domenech, cofounder of RedState, is editor of The City.