The right to the death penalty

The U.S. Supreme Court ruled 5-4 today that the people of Louisiana do not have the power under the U.S. Constitution to have a law which imposes the death penalty on child rapists.

You may or may not agree with the majority's opinion that the Eighth Amendment's prohibition of cruel and unusual punishment makes Louisiana's law unconstitutional.

But you should know one thing.

The people of the United States never consented to have the Eighth Amendment, or the rest of the Bill of Rights, restrict the powers of the state governments at all.

The Bill of Rights never was intended or understood by lawmakers to apply to the states. This is a change in the structure of the U.S. government that was made entirely by the U.S. Supreme Court, without a constitutional amendment.

The question is not whether a child rapist can be sentenced to death. The question is who decides whether a child rapist can be sentenced to death.

The U.S. Constitution reserved the power to make that decision to the states.

In a series of rulings during the 20th century, the Supreme Court usurped the power.

When you read news stories that include sentences such as "The court struggled over how to apply standards laid out in decisions barring executions for the mentally retarded and people younger than 18 when they committed murder," bear in mind that the Constitution never gave the Supreme Court the authority to have that struggle or make those decisions.

The Constitution left the power to decide criminal penalties for state crimes in the hands of the states.

You might be interested to read the earlier posts, "What you don't know about the death penalty" and "The cat, the bag and Justice Scalia."

If you're really interested in this subject, you'll find the whole story, footnoted and bibliographied, in "How the First Amendment Came to Protect Topless Dancing: A History of the Incorporation of the Bill of Rights into the Fourteenth Amendment, Why It's a Problem, and How to Fix It." Read it online at http://www.ExtremeInk.com/appendix.htm or pick up a hard copy, it's published as an appendix to the novel, The 37th Amendment.

Copyright 2008

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