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A legislative scheme to overcome the Supreme Court's ban on the death penalty for child rape.

Jac thinks he may have discovered one:

So, the Kennedy decision was based on various factors, but the main one was "evolving standards of decency" -- in other word's, America's (supposed) consensus on the issue of executing child rapists. According to the Court's majority opinion, a survey of the law in the jurisdictions that do allow the death penalty shows a "national consensus" that is "divided ... but, on balance, ... against it."

Now, it's open to question whether that's remotely accurate....

And I tend to cringe when the Supreme Court suddenly appoints itself supreme pollster of the American people's legal principles.

But that's what they said, so let's take it as a given.

[T]he Court looked at the specific statutes from each death-penalty state to discern a national consensus...

Death-penalty states could work together to draft uniform legislation, which each state would then pass, saying that they'll have the death penalty for child rape -- but with a twist.

Here's the twist: the statute may not be enforced until a sufficient number of states have passed this very legislation.

Read the whole argument. That's just an excerpt to give you the idea what the scheme is. The states would not violate the Supreme Court's decision. They would be participating in the evolution of new "standards of decency" by passing statutes that, by their own terms, would be slated to go into effect only when the standards had in fact evolved. At that point -- the number could be, perhaps, 20 states -- couldn't a state constitutionally impose the death penalty for child rape?

Jac (who is my son) doesn't think this will happen, nor does he want it to happen. He's offering this as a theory and wants to know if it's correct.

Full post as published by Althouse on October 21, 2008 (boomark / email).