Justice Kennedy's Constitutional Amendment
I watched on TV as the president took the oath of office in January. I have since had occasion to wonder if he knew at the time that he was promising to “preserve, protect and defend” whatever Justice Kennedy might be thinking over the next six weeks or so? Surely not. He certainly didn’t say those words. What he said was:
I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
But that begs the question – what is this Constitution the president swore to “preserve, protect and defend?” That used to be an easy question to answer.
It was a document that gave certain enumerated powers to the federal government and reserved all powers not specifically spelled out in the Constitution for the states and for the people. It gave the lawmaking power specifically and exclusively to Congress and gave Congress the sole authority to initiate amendments to the Constitution, which then had to be ratified by the states before they become law. Simple stuff.
But not any more. Beginning with FDR's “court-packing” scheme in the 1930s, accelerating exponentially with the Warren Court in the 1950s, the Constitution has become what five justices of the Supreme Court says it is on a given day. For example:
On March 1, 2005, Supreme Court Justice Anthony M. Kennedy amended the U.S. Constitution. He decided it was unconstitutional for states to execute any person who was under the age of 18 at the time they committed a capital crime. The case was Roper v. Simmons. Since it required five votes, why do I single out Justice Kennedy?
In a 1989 case, Sanford v. Kentucky, Kennedy was in the plurality that upheld the death penalty for criminals who were under 18 when they committed their crime. Between 1989 and 2005, several of the more liberal justices retired and were replaced by equally liberal justices; moderate Byron White was replaced by liberal Ruth Bader Ginsberg, the very liberal Thurgood Marshall was replaced by conservative Clarence Thomas, but the 4-to-4 split on the Court remained essentially unchanged with Justice O’Connor deciding the close ones.
Then, in the days leading up to March 1, 2005, Justice Kennedy changed his mind. Having said in Stanford that the Constitution allows the execution of criminals who were under the age of 18 when they committed their crime, in Roper he said the Constitution does not. In other words, he amended the Constitution. Before Roper it was constitutional for states to execute criminals who were under 18 when they committed their crime, after Roper it wasn’t.
The crime in question was particularly depraved because 17-year-old Simmons had bragged to his friends that he could commit murder and get away with it because he was a juvenile; Justice Kennedy wrote,
Before [he committed the crime], Simmons said he wanted to murder someone. In chilling, callus terms he talked about his plan, discussing it for the most part with two friends . . . Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could ‘get away with it’ because they were minors.
Simmons then proceeded to carry out his plan exactly as described. He bound and gagged his victim and threw her off a bridge while she was still alive. She drowned. But that didn’t impress Justice Kennedy who thought juveniles of any age [theoretically, and in law, even a day shy of their 18th birthday] were not as morally culpable as adults [who may be celebrating their 18th birthday]. What a difference a day makes. Kennedy’s judgment was influenced by, among other things, an Amicus brief filed by the American Psychological Association [which opposes the death penalty under all circumstances] saying that juveniles lack the maturity and understanding to be fully culpable for their crimes.
Justice Scalia pointed out in his dissent that the same American Psychological Association believes juveniles - no matter how young - are mature enough to have an abortion without parental consent. Justice O’Connor wrote:
The Court’s decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court’s moral proportionality analysis, nor the two in tandem suffice to justify this ruling.”
This blog is not about the death penalty. I express no opinion on the death penalty generally, or about the execution of juveniles in particular. My thesis is Supreme Court decisions, changing the Constitution by “interpretation,” are de facto “constitutional amendments.”
Reading books by Mark Levin (Men in Black) and Judge Robert Bork (Coercing Virtue) has reinforced my own view on this issue, although I wrote about the problem before reading either. [See: e.g. http://64.177.149.242/ “Let’s Restore The Balance” © 2003]. We need to restore the constitutional balance between Congress and the Court. But we can do that only when citizens understand what it is the Supreme Court does; Professor Walter Williams said it best: “how would you like to play poker with me using living rules that I get to interpret?”
My goal is to help citizens understand that the Supreme Court routinely amends the Constitution – it changes the rules. To paraphrase Dr. Williams, “how would you like to practice law before a Supreme Court using ‘living rules’ that they get to interpret?”
I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
But that begs the question – what is this Constitution the president swore to “preserve, protect and defend?” That used to be an easy question to answer.
It was a document that gave certain enumerated powers to the federal government and reserved all powers not specifically spelled out in the Constitution for the states and for the people. It gave the lawmaking power specifically and exclusively to Congress and gave Congress the sole authority to initiate amendments to the Constitution, which then had to be ratified by the states before they become law. Simple stuff.
But not any more. Beginning with FDR's “court-packing” scheme in the 1930s, accelerating exponentially with the Warren Court in the 1950s, the Constitution has become what five justices of the Supreme Court says it is on a given day. For example:
On March 1, 2005, Supreme Court Justice Anthony M. Kennedy amended the U.S. Constitution. He decided it was unconstitutional for states to execute any person who was under the age of 18 at the time they committed a capital crime. The case was Roper v. Simmons. Since it required five votes, why do I single out Justice Kennedy?
In a 1989 case, Sanford v. Kentucky, Kennedy was in the plurality that upheld the death penalty for criminals who were under 18 when they committed their crime. Between 1989 and 2005, several of the more liberal justices retired and were replaced by equally liberal justices; moderate Byron White was replaced by liberal Ruth Bader Ginsberg, the very liberal Thurgood Marshall was replaced by conservative Clarence Thomas, but the 4-to-4 split on the Court remained essentially unchanged with Justice O’Connor deciding the close ones.
Then, in the days leading up to March 1, 2005, Justice Kennedy changed his mind. Having said in Stanford that the Constitution allows the execution of criminals who were under the age of 18 when they committed their crime, in Roper he said the Constitution does not. In other words, he amended the Constitution. Before Roper it was constitutional for states to execute criminals who were under 18 when they committed their crime, after Roper it wasn’t.
The crime in question was particularly depraved because 17-year-old Simmons had bragged to his friends that he could commit murder and get away with it because he was a juvenile; Justice Kennedy wrote,
Before [he committed the crime], Simmons said he wanted to murder someone. In chilling, callus terms he talked about his plan, discussing it for the most part with two friends . . . Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could ‘get away with it’ because they were minors.
Simmons then proceeded to carry out his plan exactly as described. He bound and gagged his victim and threw her off a bridge while she was still alive. She drowned. But that didn’t impress Justice Kennedy who thought juveniles of any age [theoretically, and in law, even a day shy of their 18th birthday] were not as morally culpable as adults [who may be celebrating their 18th birthday]. What a difference a day makes. Kennedy’s judgment was influenced by, among other things, an Amicus brief filed by the American Psychological Association [which opposes the death penalty under all circumstances] saying that juveniles lack the maturity and understanding to be fully culpable for their crimes.
Justice Scalia pointed out in his dissent that the same American Psychological Association believes juveniles - no matter how young - are mature enough to have an abortion without parental consent. Justice O’Connor wrote:
The Court’s decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court’s moral proportionality analysis, nor the two in tandem suffice to justify this ruling.”
This blog is not about the death penalty. I express no opinion on the death penalty generally, or about the execution of juveniles in particular. My thesis is Supreme Court decisions, changing the Constitution by “interpretation,” are de facto “constitutional amendments.”
Reading books by Mark Levin (Men in Black) and Judge Robert Bork (Coercing Virtue) has reinforced my own view on this issue, although I wrote about the problem before reading either. [See: e.g. http://64.177.149.242/ “Let’s Restore The Balance” © 2003]. We need to restore the constitutional balance between Congress and the Court. But we can do that only when citizens understand what it is the Supreme Court does; Professor Walter Williams said it best: “how would you like to play poker with me using living rules that I get to interpret?”
My goal is to help citizens understand that the Supreme Court routinely amends the Constitution – it changes the rules. To paraphrase Dr. Williams, “how would you like to practice law before a Supreme Court using ‘living rules’ that they get to interpret?”
posted by GN at 8:30 AM
0 Comments:
Post a Comment
<< Home