80. Constitutional evolution

The great legal reporter Tony Mauro had a recent article in Legal Times about Alabama Supreme Court Justice Tom Parker.  The headline read: "Alabama Judge Declares War on U.S. Supreme Court: State justice says colleagues should 'actively resist' juvenile death penalty ruling".  Shades of massive resistance and standing in the schoolhouse door.

It's hard to imagine a less sympathetic cause than seeking to execute people who committed their crimes while children.  Alabama's Justice Parker seems particularly exercised that Roper v. Simmons is based on foreign law. In the echo-chamber of American media it has become accepted wisdom that Justice Kennedy ruled that foreigners can give new meanings to our Constitution, even though his actual opinion is a tad bit more nuanced than that: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

Nonetheless, decisions such as Roper present us with a fundamental problem that only rarely gets addressed.  Most discussions of controversial cases turn on whether one approves or disapproves of the result.  First you decide how you feel about it, then you come up with reasons why you're right to feel that way.  That's typical of legal argument - lawyers construct their syllogisms backwards, beginning with the conclusions their clients want - but the process shouldn't be confused with thinking.

There are really only three possible explanations for Roper.  Either it's correct and the American courts grievously failed in their duty to enforce the eighth amendment for the first 214 years following its ratification; or else it's wrong and the Supreme Court itself violated the Constitution when it decided the case.  Or - the third possibility - the eighth amendment means something different now than it meant in 1791, or even in 1989.

Roper itself adopts the third possibility, referring to "our society's evolving standards of decency" as reflected by the actions of various state legislatures.  But note the oddity: by definition, standards of decency had not evolved in Missouri's society, or there would have been no case for the Supreme Court to decide.  And: if the actions of state legislatures reflect evolving standards of decency, why does the Supreme Court need to get involved at all?

 The underlying logic of Roper, and other eighth amendment cases before it, seems to be that the Supreme Court's role is to hurry along the process of evolution.  If a majority of states has enacted legislation restricting the death penalty, then it's the Supreme Court's role to sweep in the outliers by declaring the majority rule to be constitutionally required.  Git along little dogies.

But article V spells out how the Constitution can be amended, and it doesn't say anything about the Supreme Court keeping a tally of state legislation and then, at some point, declaring the Constitution amended by process of evolution.  The idea of the Constitution changing without amendment is contrary to its very concept as "paramount law, unchangeable by ordinary means".  If our elected representatives cannot change the Constitution's meaning by legislation, as the great anti-Jeffersonian Chief Justice John Marshall so famously declared, can five unelected justices change it by decision?  Marshall didn't think so: he thought that "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."

More fundamentally still, if one accepts the idea that the Constitution established a democratic government, the uncomfortable question is unavoidable: In what sense have the American people chosen to live under the constitutional rule announced in Roper?  The people of many states chose by democratic means to enact laws prohibiting the execution of people who committed their crimes as children.  (The Supreme Court, as always, is a trailing indicator of social change.)  But the people of Missouri didn't make that choice.  Can it really be said that, when they joined the Union, they agreed to surrender their power of choosing?  Did they really delegate their power of self-government to the Supreme Court with respect to the issue of the death penalty?

The answer to all these questions, I'm afraid, is: Justice Parker has a point, repulsive though his particular hobbyhorse  may be.