The Supreme Court’s death penalty decision yesterday constitutes a raw usurpation of authority from the people of Louisiana specifically and Americans generally. The Court’s outrageous decision in Kennedy v. Louisiana continues a tradition that goes back to the watershed case of Furman v. Georgia in 1972.
The Kennedy case involves the extraordinarily cruel rape of an eight-year-old girl perpetrated by her stepfather. ‘‘In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense,’’ Justice Kennedy wrote for the five-member majority.
What punishment is, to use the Court’s test, “proportionate” to the offense? Putting questions of constitutional jurisprudence to one side, it would take an oaf to conclude that incarceration is punishment “proportionate,” or death disproportionate, to the offense committed by Mr. Kennedy.
Whence comes the Court’s authority to render the judgment in cases such as Kennedy? It is entirely self-created, based on the Court’s ipse dixit. This is not the way it’s supposed to work. As Justice Alito writes in dissent, quoting from Justice Kennedy’s opinion: “The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s ‘own judgment’ regarding ‘the acceptability of the death penalty.’”
The Court’s handiwork in Boumediene represents a more recent and more consequential appropriation of power whose limits have not yet even begun to be tested, and it flies in the face of the Court’s own previous jurisprudence. In Boumediene the Court follows along the path it began to blaze in Rasul in 2004.
Our acquiescence in the doctrine of judicial supremacy is of long standing, but it is time to revisit it in the spirit of Abraham Lincoln. In Lincoln’s Emancipation Proclamation, Allen Guelzo reminds us that Lincoln “mistrusted the federal judiciary and expected that any emancipation initiatives which came directly from his hand would be struck down in the courts.” Guelzo’s reminder helps us understand Lincoln’s last Annual Message to Congress (December 6, 1864):
In presenting the abandonment of armed resistance to the national authority on the part of the insurgents, as the only indispensable condition to ending the war on the part of the government, I retract nothing heretofre said as to slavery. I repeat the declaration made a year ago, that “while I remain in my present position I shall not attempt to retract or modify the emancipation proclamation, nor shall I return to slavery any person who is free by the terms of that proclamation, or by any of the Acts of Congress.” If the people should, by whatever mode or means, make it an Executive duty to re-enslave such persons, another, and not I, must be their instrument to perform it.
Translation: If the courts, or any other institution, nullify the Emancipation Proclamation, I will nevertheless continue to enforce it. Where is the spirit of Lincoln today?
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