Constitutional Law

By David M. Wagner

It would be hard to deliver a clearer, more workmanlike, here's-why-you're-wrong-any-questions kind of dissent than did Justice Alito today. Justice Scalia would have given off more sparks, but no one could have done a better job putting it down where the horses can get it: first of all, of course very few states adopt the death penalty for child rape -- they were scared by dicta in the Coker v. Georgia plurality.

Furthermore, the Court's "own judgment" consists of nothing but (1) a set of hyper-Allgeyerian susbtitutions of its own policy analyses (good though these may be) for those of the Louisiana legislature, (2) the steroidal judicial-supremacist notion that by allowing Louisiana to apply capital punishment in a way that many American states have traditionally done, the Court would thereby "expand" the death penalty (Coker, it will be recalled, did not in fact hold that the death penalty may constitutionally be applied only to murder -- that holding did not arrive until today); and (3) the judgment that murder is not only worse than the repeated rape of a child, but worse by such a margin the Eighth Amendment line between permissibility and impermissibility of the death penalty falls there.

That third argument is a very difficult one as a moral matter. Precisely because of its difficulty, combined with the absence of any constitutional text that resolves it, we may be sure that it is not an issue that the Constitution removes from the sound discretion of state legislatures. We may be sure, in other words, that Justice Kennedy's opinion in Kennedy v. Louisiana is profoundly wrong.

Full post as published by Ninomania on June 25, 2008 (boomark / email).