March 03, 2005

Consensus Justice


Investor's Business Daily editorialized today under the title "Referendum Justice".

Beneath the dust kicked up is the ugly fact that the ruling in Roper vs. Simmons wasn't based on the Constitution. Writing for the majority, Justice Anthony Kennedy cited not America's founding document and guiding law, but "national consensus" and "international opinion."

How is it that a majority of our Supreme Court justices, all with presumably first-rate intellects, can have such a fundamental misunderstanding of their duty?

That duty was made clear in Marbury vs. Madison more than 200 years ago, when Chief Justice John Marshall concluded that the court must rule on the constitutionality of legislated law.

In 2005, however, Kennedy, David Souter, Ruth Bader Ginsburg and John Paul Stevens use "national consensus" and "international opinion" to interpret what the Eighth Amendment means when it says "cruel and unusual punishments" are not to be inflicted. ...

Justices must decide what the framers meant by "cruel and unusual." Reading today's mood using the "evolving standards of decency" test cited by the Missouri court that initially ruled against executing juvenile offenders is like putting a finger to the wind. If they and the "living document" faction don't like what they read in the Constitution, they have to change it through the process provided.

UPDATE -- March 7: This cartoon appears in today's (Monday's) Investor's Business Daily.

Posted by Forkum at March 3, 2005 08:44 PM