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Mona Charen
Mona Charen
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The Republic of Kennedy

Comment

In the United States today we no longer enjoy the rule of law but instead the rule of lawyers — robed lawyers with the exalted title "justice" — but still unelected lawyers enacting their own policy preferences.

Before their commonsense decision in the Second Amendment case, a different complement of justices (Justice Anthony Kennedy siding with the liberals) demonstrated what a flimsy hold the words of the Constitution have on our jurisprudence. In fact, when you consider that the court is pretty well divided between four liberals and four conservatives with Justice Kennedy swinging from one side to another as the spirit moves him, we now enjoy a Republic of Kennedy. All this fuss and bother about the presidential race is misplaced. The most powerful man in the land is someone most Americans couldn't pick out of a lineup.

In Louisiana v. Kennedy, the majority held unconstitutional a statute that permitted the death penalty for rape of a child under the age of 12. In the case at bar, the child was an 8-year-old girl who was brutally raped by her stepfather. After feeding her a cocktail of drugs dissolved in a glass of orange juice, the defendant attacked the girl so brutally that, as the decision records: "An expert in pediatric forensic medicine testified that L.H.'s injuries were the most severe he had seen from a sexual assault ... A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery."

Explaining why the statute violated the constitutional prohibition against "cruel and unusual" punishment, Justice Kennedy declared that, "Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule." Will someone please ask Justice Kennedy and his liberal fellows this question: If it's all a matter of "evolving standards," then why pretend to abide by a written document at all? And whose evolving standards?

As Justice Samuel Alito establishes in a devastating dissent, Kennedy distorts the historical record to bolster his claim that the U.S.

is moving toward a "national consensus" against capital punishment in such cases. In point of fact, the opposite is more nearly the case, but the Court's own previous rulings have prevented the people from fully enacting their policy preferences. "When the law punishes by death," Kennedy wrote, "it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." So that's it. Preacher Kennedy is not comfortable. And, as Alito notes, "Although the Court has much to say on this issue, most of the Court's discussion is not pertinent to the Eighth Amendment question at hand."

Justice Antonin Scalia's majority opinion in District of Columbia v. Heller, by contrast, is all about — guess what — the intent of the Founders. The distraction of the "militia" clause in debates over the Amendment's meaning is now eliminated. Through exhaustive historical examples, ranging from the Glorious Revolution in England to recent precedents, the majority opinion shows that the introductory clause referring to militias does not limit nor vitiate the "right of the people to keep and bear arms."

When the First, Fourth and Ninth Amendments speak of "the right of the people" to free speech and to be free from unreasonable searches and seizures and so on, no one interprets these as collective rather than individual rights. Nor is it consistent with history or logic to argue that "keep and bear arms" referred only to military uses. The founding generation did fear that the federal government might attempt to tyrannize them by confiscating their weapons and thereby disabling their militias. But that was not the only reason they sought to codify the right to bear arms. They saw themselves as vindicating a pre-existing right, a right "inherited from our English ancestors" as the Supreme Court put it in 1897.

As the Court was careful to clarify, the existence of an individual right to keep and bear arms does not mean that the right is absolute. Time, place, and manner restrictions have always been recognized even with respect to sacred First Amendment rights. But the hurdle states will have to clear in order to regulate gun ownership by law-abiding citizens just got inestimably higher. This is good for the nation as a whole (just pick up "More Guns, Less Crime" by John R. Lott if you doubt it), but all of it is due to one vote on the court in the Republic of Kennedy. Remember that in November.

To find out more about Mona Charen and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.



Comments

2 Comments | Post Comment
Well, Ms. Charen, it's funny how the courts are full of lawyers out of control and judges who legislate this and that, until you finally stumble across a decision you like. Then, all of a sudden, they have applied law and common sense. .......................................................................................................................................................................................................
I am more or less okay with the outcome of D.C. v. Heller too, but if it has anything to do with the intent of the founders, my mother is a Martian. The "distraction" of the militia clause is anything but "eliminated", as you put it. State militias were what it was all about back then. I'm afraid Stevens got that one right in his dissent. In fact, the overriding fear states had at that time of military abuse by the newly created federal government is a great illustration of how idiotic it is to talk about sticking to the intent of the framers. It just isn't the same world today. ....................................................................................................................................................................................................
So for you, the second amendment can be what the fourteenth amendment is for those who believe in a woman's right to have an abortion without being turned into a criminal. The courts will continue to make law, not just interpret it, the same way they did in Bush v. Gore in December 2000. That's when the U.S. Supremes voted 5 to 4 to prevent the Florida Supreme court from interpreting it's own state's election laws as they applied to counting votes, and that little pile of excrement on the face of American jurisprudence will go down in history as a harbinger of how far down the sewer the Bush-Cheney presidency would eventually flush itself. ....................................................................................................................................................................................................
But be careful, Ms. Charen, the pendulum is about to swing. Judicial activism begets judicial activism, and D.C. v. Heller is a doosey.
Comment: #1
Posted by: Masako
Fri Jun 27, 2008 6:43 PM
I think the problem with the Supreme Court is not explicable in case-by-case commentary on specific decisions.
Ever since the principle of judicial review was asserted by the first Chief Justice, the court has assumed the power to review legislative acts of the Congress and, in some cases, state legislatures for conformity with the Constitution. I really don't have a problem with the concept of judicial review, even though the Constitution, in it's gorgeous simplicity, doesn't give that power to the Supreme Court. The fact is, by now it's an accepted function of the Court, and it's a useful contribution to the balance of powers the framers intended.
The real problem is the fact that we've permitted the Tenth Amendment to be ignored. The federal government, often with the connivance of the Court, has arrogated far too much power to itself, at the expense of state and local governments. This is manifestly not what the framers intended. I'd like to see us move back toward the federal system that the framers did, in fact, intend. I have personal policy preferences, of course. I'd be more than happy for the states, in response to the will of their citizens, to legislate questions such as abortion rights (I'm pro-choice) and the death penalty (I'm against it), to mention just two examples. If I don't like what my state government chooses to do, I can attempt to make changes, in concert with my fellow citizens. I have much more ability to do that on a state level than at the federal level, where no one much cares what one citizen thinks. If I fail in changing my state's laws, then I can move to another state if I feel that strongly. That's what the Tenth Amendment is all about.
Comment: #2
Posted by: Kapmep
Sun Jun 29, 2008 6:47 AM
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