Whose Constitution Is It Anyway?

by DOUGLAS W. KMIEC
The Los Angeles Times, March 7, page M5

The problem with the U.S. Supreme Court's decision last week banning the execution of minors is that it was based, when you get right down to it, only on the personal beliefs of five justices and buttressed by the opinions of people who live in other countries.

That's no way for the court to decide. Supreme Court rulings must be based on the Constitution, not on what the justices believe or on the vagaries of "world opinion."

The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law -- that is, something to be fairly interpreted and evenhandedly applied -- or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second -- in which an elite body is invited to impose binding pronouncements about how the rest of us are to live -- is something else.

We all have keenly felt personal opinions. As a Catholic, for instance, I accept the teaching of the church that capital punishment ought to be rarely, if ever, employed. But although religion, philosophy and the positions taken by the United Nations General Assembly should all be part of the public debate in our legislative assemblies, they cannot simply be asserted as constitutional law.

A jurisprudence that was truly faithful to the Constitution would begin by inquiring whether a particular punishment was considered cruel and unusual in 1789, when the 8th Amendment was added by popular ratification. Based on a consideration of the practices of the time, as well as the commentary of such legal luminaries as Sir Matthew Hale and Sir William Blackstone, the court would have to conclude that juvenile execution was not off limits except possibly for extremely young children beneath the age of reason.

But the court did not trouble itself with original meaning. That's because in the late 1950s, when the court was led by former California Gov. Earl Warren, the justices threw out the original understanding that the Constitution has a textual meaning in favor of the idea that the document can be reinterpreted according to the "national consensus." Presumably, this keeps the Constitution up to date so that we're not all living under anachronistic 18th century laws.

But the framers never intended the country to be bound by antiquated thinking; they just thought that the best way to keep things up to date was for the people themselves to do it by passing laws and, occasionally, amending the Constitution. It was not up to judges to change constitutional meaning.

What's more, the court is not very persuasive on the question of what the "national consensus" really is on the juvenile death penalty -- or if there really is a consensus at all. In fact, the issue is a controversial one, which suggests why, of the states that permit capital punishment, only about 47% prohibit execution for offenders under 18.

How does 47% express a national consensus? The same way numbers can always be manipulated. Mix in 12 states that prohibit capital punishment altogether, and voila, national consensus.

Only one problem: All of those dozen states allow (and some even require) juveniles over 14 to be tried as adults, thereby undercutting the argument that the states as a body have reached a consensus on the "culpability" of the young or on whether they lack the capacity for considered judgment.

In the case at hand, Christopher Simmons brutally tied up his victim and pushed her from a bridge to drown, and he smugly bragged that he could "get away with it" because he was a minor. The notion that he did not grasp the gravity of his crime is ridiculous.

The court relied on two other authorities in reaching its decision: social science and world opinion.

The first is not definitive. As Justices Antonin Scalia and Sandra Day O'Connor pointed out in their dissents, the court's studies can be easily refuted by other studies, because no study holds that all juveniles under 18 are unable to take moral responsibility. That's why we ask juries to do individualized assessment -- so that the punishment will fit the crime and the criminal.

The second -- world opinion -- is inappropriate in this case. The notion that American law ought to conform to international law is a benign, even alluring, premise. After all, the framers appealed to universal principles in establishing the United States as a nation. But as sound and important as that universality can be up to a point, the fact is that American law is not the same as world law, and we wouldn't want it to be.

There are, for example, some distinctly American rights to which the world community as a whole does not subscribe, but which we would not want to give up: the right to a jury trial, the process of grand jury indictment, and the suppression of illegally seized evidence, to mention just three. Britain rarely excludes evidence found during an illegal search. Does that mean we shouldn't either? Of course not.

It may well be time for the juvenile death penalty to be set aside, because it was long ago that we declared an "inalienable" right to life. But to be done constitutionally, it must be accomplished "by the people," not by five Supreme Court justices by assertion.