- The Washington Times - Sunday, March 6, 2005

The Supreme Court’s decision barring execution of murderers who commit their crime before age 18 as cruel and unusual punishment is not only fundamentally flawed but also deeply troubling — for more than just a few reasons.

In its 5-4 decision on March 1, the court decreed: “Juveniles are less mature than adults and, no matter how heinous their crimes, they are not among ‘the worst offenders’ who deserve to die.” While I certainly respect that opinion, I strongly object to the U.S. Supreme Court presuming to impose it on our entire society as if it is the final arbiter not just of the law but our moral standards.

Adding insult to injury, the court doesn’t even deny its staggering presumptuousness. In the words of the ever-disappointing Justice Kennedy, writing for the majority, “To implement this framework, we have established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.”

How much more explicit could the court be in affirming the shifting, baseless standards of moral relativism? Quite a far cry, is it not, from a constitutional and legal system grounded in the absolute standards emanating from the Judeo-Christian ethic?

Forget the merits of the court’s position in light of the rampant licentiousness that pervades our postmodern era. Such questions can be debated. But are you comfortable with the highest court of the land issuing a binding pronouncement that we have evolving standards of decency?

What business is it of the court’s to make such broad sweeping determinations having nothing whatever to do with law? Besides, I thought liberals objected to the “legislation” of morality, which is precisely what is involved here. The court, in its colossal arrogance, is rejecting the biblical view of the inherent depravity of human nature in favor of the humanistic, New Age precept that humankind is progressing on a linear path toward enlightenment.

As if endorsing moral relativism were not enough, the court went on to misapply its own guidelines in interpreting what society’s “evolving” moral standards happen to be at present. As Justice Antonin Scalia’s dissent noted, these societal standards are to be gleaned by reference to a national consensus, which in turn is to be determined by an objective standard: statutes passed by society’s elected representatives.

But for the court to overturn its own precedents, such as the ones allowing execution in these cases, it must find not just a national consensus against the practice, but an overwhelming one. Instead, the evidence showed only 18 of the 38 states that allow capital punishment have outlawed such executions — hardly a consensus, much less an overwhelming one. Indeed, if an overwhelming national consensus has emerged, why has the court decided to pre-empt juries — who presumably embody that consensus — in these cases?

It boils down to the court substituting its own judgment for that of the people. In so doing, the court, as Justice Scalia also cogently demonstrated, cherrypicked the evidence and ignored any that was contrary to its desired findings.

As just one example, the court accepted the American Psychological Association’s (APA) claim that “scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions.” But this same APA made a completely contradictory claim in a case previously considered by the court, in which it argued there is a “rich body of research” proving juveniles capable of deciding whether to get an abortion without parental advice.

Regardless, I would much rather local juries make these determinations than five of nine self-appointed black-robed moral arbiters, especially considering that under current law, juries are required to take into account the murderer’s age as a mitigating factor. If local juries can determine whether such children should be convicted of murder, why can’t they decide whether they should be executed?

There is at least an additional column’s worth of other problems with the court’s decision, such as its obscene, arbitrary and opportunistically convenient reference to foreign standards, and its misanalysis of the deterrence argument.

I also note the incredible irony of the court — in the process of proclaiming itself the final moral arbiter — undermining its own authority in rewarding, instead of reprimanding, the Missouri Supreme Court for flagrantly ignoring the U.S. Supreme Court’s own precedents.

The court’s disturbing decision underscores the growing relevance and urgency of my friend Mark Levin’s “Men In Black,” which I respectfully urge you again to purchase.

David Limbaugh is a nationally syndicated columnist.

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