By Selwyn Duke

If you asked people what the role of a Supreme Court Justice was, most wouldn’t know the answer.  I experienced this with a former acquaintance of mine, a septuagenarian millionaire who probably would have been thought sophisticated by most.  He did know that such justices rule on law, but when I asked on what basis they were supposed to do so, he responded, "Well . . . based on how they feel."  In light of this widespread ignorance, it’s not surprising that our courts get away with a wholesale violation of their oath of office.

A good example of such judicial misfeasance is found in this article by Mark Sherman, who reports on the 17 unresolved cases that await the Supreme Court when it returns to the bench.  Among them is the matter of whether criminals may be executed for raping children.  Writes Sherman:

. . . awaiting a decision is the case of a man sentenced to death in
Louisiana after he was convicted of raping his 8-year-old stepdaughter.
Only five states – Montana, Oklahoma, South Carolina and Texas are the
others – allow executions for the rape of a child, but only Louisiana
has imposed death sentences on people convicted of the crime.

The Supreme Court banned executions for rape in 1977 in a case in which
the victim was an adult woman. The last executions for rape or any
other crime that did not include a victim’s death were in 1964.

I ask you, where in the Constitution are limitations placed on the administering of capital punishment?  Just for the record, I’m not a great proponent of the application of the death penalty, although I do believe in harsh punishment.  But that’s beside the point. 

The relevant issue here is that the court has usurped the authority of state legislatures with respect to this.  And it has made two mistakes.  First, the Constitution only prohibits "cruel and unusual punishment," and the death penalty doesn’t qualify.  By "cruel and unusual," the founders were speaking of medieval-type tortures, not execution, which was common throughout the world at the time. 

The second mistake of the court is even more ridiculous.  Since it has already ruled that capital punishment is allowable — meaning, is isn’t cruel and unusual — what business does the court have injecting itself into the matter of when such a penalty should be applied? 

Understand that the court is confusing two things: Whether a punishment is disproportionate with whether it’s "cruel and unusual."   You could certainly argue that executing someone for rape is disproportionate, and you have every right to oppose such sentences.  But the target of your opposition should be the legislature, the branch of government that has the legal right to make such determinations.  And the same goes for Supreme Court Justices; the only legal way in which they could influence such a thing is to vote for representatives who agree with them.  If they take it upon themselves to use their office to settle the issue, they violate the law because the Constitution is silent on the matter.

It takes discipline to maintain a constitutional republic.  Citizens must possess enough virtue to resist the temptation to applaud rulings and laws made based simply on whose ox is being gored.  If they’re consistently willing to tolerate the violation of the law (the Constitution is the supreme law of the land) simply because it suits their agenda, they allow the law to be rendered meaningless, and then all their rights are in jeopardy. 

John Stuart Mill once said, " I can hardly imagine any laws so bad, to which I would not rather be subject than to the caprice of a man."  We can either be governed by the rule or by the rulers.  And it can’t be the former unless we make sure the latter follow the rules as well.

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