While one can argue about the recent Supreme Court decision regarding access to American civilian courts for enemy combatants, I’m not sure how one can explain the logic behind the decision to overturn the death penalty for child rapists.
The majority claims that it has based its’ ruling on society’s “evolving standards of decency.” They must do so because of past decisions in which they have limited the death penalty in other ways. Clearly, the writers of the Constitution allowed for much more leniency in the death penalty so they are left with justifying the decision on a sliding scale of societal standards.
But as AP points out at HotAir, if the court really wants to use society’s current standard or some adjusting scale would they not actually allow society to express their wishes through things like the Louisiana law. What they actual do through their ruling is establish an immobile standard that cannot adjust with popular opinion. But is it really the job of the court to gauge public opinion when making a court ruling, even if that was the case they didn’t do it this time.
That’s the real point. It is not the personal opinion of the majority of Americans. It is simply the personal opinion of the majority of justices sitting on the Supreme Court.
It also was not the opinion of Justice Samuel Alito:
With respect to the question of moral depravity, is it
really true that every person who is convicted of capital murder and
sentenced to death is more morally depraved than every child rapist?
Consider the following two cases. In the first, a defendant robs a
convenience store and watches as his accomplice shoots the store owner.
The defendant acts recklessly, but was not the triggerman and did not
intend the killing. In the second case, a previously convicted child
rapist kidnaps, repeatedly rapes, and tortures multiple child victims.
Is it clear that the first defendant is more morally depraved than the
second?… I have no doubt
that, under the prevailing standards of our society, robbery, the crime
that the petitioner in Enmund intended to commit, does not evidence the
same degree of moral depravity as the brutal rape of a young child. Indeed,
I have little doubt that, in the eyes of ordinary Americans, the very
worst child rapists—predators who seek out and inflict serious physical
and emotional injury on defenseless young children—are the epitome of
moral depravity.
Kennedy and the other’s ruling is completely illogical on its face. They argue that the death penalty is only applicable to those who take life. If you commit murder, you can be killed. So does the same argument apply to rape? If you commit rape, can you be raped?
According to the "logic" in the ruling, rape of a child is not up to the level of depravity as killing someone. Should it not follow that raping an inmate is less than taking their life therefore an acceptable level of punishment?
Of course, I don’t believe that prisoners should be raped, but when the Supreme Court creates contorted rulings that refute themselves and contradict earlier rulings it is hard to keep straight exactly what is acceptable in “evolving standards of decency.”
Related Posts
I disagree with you on this, and buy Joe Carter’s argument about why biblical thinkers should reject the death penalty for rapists.
Rainbows and Electric Chairs: A Christian View on Capital Punishment
So does the same argument apply to rape? If you commit rape, can you be raped?
You ask a good question. If not capital punishment, what IS a just punishment for child rape?
Those who focus on rehabilitation but ignore the penal side of justice will tell you that we should just try to rehab the person, but I don’t buy that. While we should try to rehab them, part of that is PAYING their debt via service AND punishment.
I personally think castration is just, or at least, making them impotent so that, for instance, they can never again get an erection. Imagine life in prison if you can’t self-pleasure yourself. That’s pretty damn hard (pun intended).
You misunderstand my derision of the way the case was decided and explained as personal support for death penalty for rapist.
What I said was that the case was decided poorly and justified worse.
So, you think the decision was made poorly, but you agree with the outcome?
Devil’s advocate. For the sake of argument, let’s say that the death penalty is applicable to child rapists. Why not just give the death penalty for rape, period? Rape is rape, whether it’s a female victim who is 17 years old or 18 years old. It’s the exact same crime, rape, regardless of how old the victim is.
After hearing Al Mohler talk about this decision, I understand why Aaron is concerned. Mohler takes the approach that:
– scripture does not *prohibit* the death penalty for other crimes, it only *prescribes* it for murderers
– constitutionally speaking, there is no such limit, and he thinks that the death penalty for crimes other than murder is not necessarily ‘cruel and unusual’
– the use of the death penalty should be under the state’s jurisdiction, not the feds, constitutionally speaking
– the idea of the majority that we have ‘evolving standards of decency’ is the problem with this decision – in one sense, we have, for instance, extended civil rights to women and blacks, but in this case, we are talking about justice – that is, he is arguing that, someday, if we view the death penalty as indecent even for killers, that would be ok.
The reason to reject the death penalty for rapists is not based on some evolving, subjective standard of decency, but based purely on deciding what is just punishment.
But in answer to Cin’s question, you could argue that rape is rape. But we also admit that crimes against children are in some sense worse than against adults. I also think that some kinds of adult ‘rape’ can start as consensual intimacy among adults, where among children, no such thing should exist.
I think that the death penalty is cruel and unusual punishment and, incidentally, too easy on them. Life without the possibility of parole is much more harsh.
“But we also admit that crimes against children are in some sense worse than against adults.”
Still Devil’s advocate. So, the rape of a girl who is 17 years 364 days old (child) should send someone to death row while the rape of a girl who is 18 years and 1 day old (adult) should not?
Louis, I’m glad you made that argument. I have a couple of things.
1. You can’t really argue that Constitutionally, since the death penalty has been an accepted form of punishment since our nation’s founding.
2. If the death penalty is “too easy,” how can it be cruel and unusual punishment, while the much more harsher punishment, in your view, life without parole, be acceptable? It can’t be both.
3. If we take your argument (and Justice Kennedy’s) at face value then we have just voided the argument against death penalty for child rapist. I’ll explain.
The argument is that a life spent crammed in a cell in prison is much worse than being put to death. The person is made to suffer more in jail than being dead. Doesn’t that argue that child rape is worse than murder?
The child is forced to live in a mental prison for the rest of their life, while the person murdered is done (ignoring eternity, which doesn’t play into this). Does this not indicate, according to your own logic, that rapist deserve a worse punishment than murderers since they have subjected their victim to the worst possible outcome?
That’s why Kennedy’s argument doesn’t make sense. You can’t on one hand say that murder is to be held as the supreme heinous act, while at the same time argue that the death penalty is an easier punishment. Either death is the ultimate or it is not, it can’t be both.
My argument is simple. I don’t believe the government should have the power to put people to death. Sure, there’s an emotional argument here: some crimes are so terrible that they deserve death. But who are we to decide? And, especially, who is the gov’t to decide? We have to remove them from society for our safety; we want to provide punishment. Lifetime in a cage fits the bill nicely.
btw: What was cruel and unusual over 200 years ago has undergone a change. Many things have changed since then, or haven’t you noticed? For one, gays are no longer executed simply for our sexual tastes. We abhor slavery and have given women the right to vote. Morals evolve over time. I think murdering to prove murder is wrong is absurd. Maybe someday we’ll try to rehab people rather than punish them. Who knows?
My argument is simple. I don't believe the government should have the power to put people to death.
That's fine. If you are against the death penalty for that reason then say it. Don't try to hide behind, "It's actually an easier punishment than life behind bars." You don't believe that. You just say that because it makes you sound tougher on the issue.
My wife is against the death penalty. I respect people who hold to that opinion, but you can't have it both ways. Either the death penalty is wrong and that's it or you think it is acceptable but life in prison is the worse punishment. Those are mutually exclusive.
What was cruel and unusual over 200 years ago has undergone a change.
I understand that and am glad to see many of the changes that have taken place in our country.
But if you fall back on adjusting our laws or at least interpreting them according to the morals of society, then you leave the door wide open for things you don't like as well.
Say society goes back to an earlier opinion of gay individuals, should the courts be able to go back and say "Well, today's morality dictates we allow imprisonment for sexual orientation." I don't believe we will ever see that, nor do I want to see that, but if your whole argument is we should leave court opinions up to the "evolving morality of the people" then you have to take the good with the bad.
But even on the case of the death penalty for child rape, do you honestly think the moral opinion of the country is against that option?
That's why I call BS on claiming "evolving morality" as the foundation for any ruling. You are not really taking a pulse of the morality of the nation, you are ruling based on your own subjective standards of morality.
That allows the Supreme Court to basically do whatever it is they want to do depending on who has the most votes. I don't think that is the way the Founders intended it, nor do I think that is the best way to protect all of our freedoms in the long run.
We already see that 4 justices think that evolving morality means you can ignore the 2nd Amendment. We have seen that 5 justices believe local governments can take land away from private citizens for commercial developments. What if they want to ignore the 1st Amendment and tell you that you can't say anything negative about the government anymore? Could morality, as determined by 5 individuals, not "evolve" to that point?
It is dangerous and anti-Constitutional (not unconstitutional, but against the very nature of the documents) to allow 5 citizens, no matter their stature, the ability to determine our laws and our freedoms based on personal "evolving" whims and really nothing else with no recourse available.
So, the rape of a girl who is 17 years 364 days old (child) should send someone to death row while the rape of a girl who is 18 years and 1 day old (adult) should not?
Very nice! Using the same challenge that I use against you in the case of abortion (which you never answered).
I would say that, for legal reasons, yes, we must set an age at which we consider a person an adult, just like we do for military service, or drinking. We can also give the judge discretion, as we do when we charge minors as adults.
So let me ask you again, when do *you* consider an unborn child to be a person with the right to protection under the law? And not just for you, but by what reasoning would you establish legal protection? Only at birth?
Hi Louis:
I agree completely, although I’d probably phrase it differently. You wrote:
My argument is simple. I don’t believe the government should have the power to put people to death. Sure, there’s an emotional argument here: some crimes are so terrible that they deserve death. But who are we to decide? And, especially, who is the gov’t to decide? We have to remove them from society for our safety; we want to provide punishment. Lifetime in a cage fits the bill nicely.
Being a Christian I do not believe punishment is our right because it is not our place to decide who deserves punishment. We have a right to protect our children from child rapists, but separating child rapists from society by incarcerating them is sufficient for that purpose.
btw: What was cruel and unusual over 200 years ago has undergone a change. Many things have changed since then, or haven’t you noticed? For one, gays are no longer executed simply for our sexual tastes. We abhor slavery and have given women the right to vote. Morals evolve over time. I think murdering to prove murder is wrong is absurd. Maybe someday we’ll try to rehab people rather than punish them. Who knows?
I’d say that general OPINIONS about morality evolve over time, but I would disagree that such things as torturing a person to death was EVER moral, even though people used to accept such cruelty.
your friend
Keith
Being a Christian I do not believe punishment is our right because it is not our place to decide who deserves punishment.
That's a worthy opinion, but not a biblical one, i would argue (and have argued in Why the term 'Christian soldier' is not an oxymoron).
And ethically speaking, I think it is UNJUST to let a murderer live, esp. to the families of those who have lost someone. If you want to pull the "justice like that is revenge" or "people need to forgive," I would say that
1. then why do any kind of justice? Isn't lifelong incarceration revenge too?
2. People can forgive and expect justice to be done in this world – those are not mutually exclusive.
I'd say that general OPINIONS about morality evolve over time
I agree, but I think that the morality of big issues is objectively unchanging, and so our judicial approach should probably NOT change unless we are making it MORE just. I think mercy should always be at the discretion of the judge, even if there is mandatory minimums.
Also, see Capital punishment and rape – the bible says NO?
Hi Seeker:
I have claimed that we Christians have no right to punish. You responded with the below:
That’s a worthy opinion, but not a biblical one, i would argue (and have argued in Why the term ‘Christian soldier’ is not an oxymoron).
I would argue that my opinion is the one taught by Paul and by Jesus, that there is ample Biblical evidence that both taught “non-judgmentalism”.
And ethically speaking, I think it is UNJUST to let a murderer live, esp. to the families of those who have lost someone. If you want to pull the “justice like that is revenge” or “people need to forgive,” I would say that
I don’t see how allowing a murderer to live imposes any injustice on the families of the victims. State killing of the murderer doesn’t diminish the injustice suffered by the families, nor by the person killed. The only way to eliminate the injustice would be to bring the victim back to life, and God alone can do such things.
1. then why do any kind of justice? Isn’t lifelong incarceration revenge too?
I would say not. I would say lifelong incarceration is justified inasmuch as it protects the rest of us from dangerous predators.
2. People can forgive and expect justice to be done in this world – those are not mutually exclusive.
I agree; I deny however that we are in a position TO justly punish. IMO that’s what the Bible means when it says the vengeance is the Lord’s to give, not ours.
I’d say that general OPINIONS about morality evolve over time
I agree, but I think that the morality of big issues is objectively unchanging, and so our judicial approach should probably NOT change unless we are making it MORE just…
IMO chattel slavery was just such a big issue and it was just as immoral then as it is now. But (IMO) the public accepted slavery back then and it doesn’t now. I do not believe that actual morality changes when opinions about morality change. On second thought, I think the whole issue of morality is perhaps too complicated to fit into the “moral absolutism/relativism debate, but that’s for another discussion.
I think mercy should always be at the discretion of the judge, even if there is mandatory minimums.
I do agree here.
your friend
Keith
My wife is against the death penalty. I respect people who hold to that opinion, but you can't have it both ways. Either the death penalty is wrong and that's it or you think it is acceptable but life in prison is the worse punishment. Those are mutually exclusive.
No it isn't. I'm against the death penalty not punishment. I was imprecise: I shouldn't have used the "cruel and unusual punishment" argument. I'm for severe punishment, just not for giving the gov't the power to legally kill. I don't trust the (any) gov't. that much.
That's why I call BS on claiming "evolving morality" as the foundation for any ruling. You are not really taking a pulse of the morality of the nation, you are ruling based on your own subjective standards of morality.
Newsflash: All morality is subjective, sad to say. We like to pretend it isn't, but I see no compelling reason to believe otherwise.
That allows the Supreme Court to basically do whatever it is they want to do depending on who has the most votes.
Correct. That's the way it really is. Remember 2000 and the Supreme Court's decision to "elect" George Bush? The five Republicans did exactly what they wanted, and, since they had the numbers, they won. That's the way it always is. Not some objective moral or legal standard, but power. As Lord Voldemort told Harry: "There is no good or evil, just power, and the will to use it." Even your God rules on this basis: He has the power so He gets to make up the rules.
We may pretend otherwise, but when it comes right down to it, that's the way things are set up. I like to argue based on reason, but that's entirely arbitrary too. I think it's the best way to set things up, but I really have no ground to stand on here. It's always some form of power: force, religion, majority, etc.
If you have a better explanation, tell me (but be sure to back it up).
Newsflash: All morality is subjective, sad to say. We like to pretend it isn't, but I see no compelling reason to believe otherwise.
Not when you are issuing objective legal rulings. That's my point it shouldn't be based on any changing standard of morality. It should be based on what the Constitution says.
Remember 2000 and the Supreme Court's decision to "elect" George Bush? The five Republicans did exactly what they wanted, and, since they had the numbers, they won.
Really? You really want to go back to that. You do realize that it was the Florida Supreme Court that violated their own state constitution to extend the recounts. You also realize that according to every possible legal recount measure Bush would have still won Florida had the recount continued. Let's stick with facts not liberal fantasies.
All morality is subjective, sad to say. We like to pretend it isn’t, but I see no compelling reason to believe otherwise.
*** Extremism alert *** Or maybe you are just being intellectually lazy. As I wrote in What is an extremist?:
As I wrote in Legislating in the Moral Gray Zone, we can admit there is a gray zone without throwing out the idea of agreeing on some known moral absolutes
However, if your ethic/morals are based on some ethic other than a humanist one, like an environmentalist one, you *might* come up with other ‘moral’ solutions, such as it is better to allow people to die of malaria than to risk hurting the environment with DDT. So in another sense, I guess morality could be seen as subjective.
But that approach has it’s own problems. Like who are we to say that female foot binding, or circumcision (of either sex), or even penal servitude or slavery are morally wrong? If morality is entirely subjective, we will certainly end up justifying cruelty or destructive behaviors.
The fact remains that the Supremes intervened in a state matter and imposed their will 5-4. Thus, they did whatever it was they wanted to do depending on who had the most votes. If there had been 5 Dems instead of 4 things would have been different. My point remains: the majority runs things, not an objective morality.
btw: Basing rulings on what the Constitution says is a rather fluid standard, entirely based on the opinions of the majority. For instance, the Constitution says that gun ownership is dependent on a state militia, but the Supremes think differently (5-4 margin again). Now, I happen to agree with them, but it is not out-of-bounds to take a strict view and argue the other way. An evolving understanding of morality and legality is as good an argument as any to use.
My point remains: the majority runs things, not an objective morality.
You are right that, in the end, social acceptance and legislation of what is considered right and moral is done by humans, who differ based on their opinions.
But that does not mean that all opinions are equal. Some are *objectively* better than others, and history proves which ideas lead to human flourishing and which lead away.
It could be that either or both of the ‘sides’ in this argument are wrong, and God help us if it is the majority, such as in the Roe v. Wade decision.
That is why we talk of returning to truth, virtue, and righteousness in law and society. Because though men differ on what they THINK these are, they are not just subjective in their impact on society.
Basing rulings on what the Constitution says is a rather fluid standard, entirely based on the opinions of the majority. For instance, the Constitution says that gun ownership is dependent on a state militia, but the Supremes think differently (5-4 margin again). Now, I happen to agree with them, but it is not out-of-bounds to take a strict view and argue the other way. An evolving understanding of morality and legality is as good an argument as any to use.
You did not repeat what the constitution says, you told us what you think it means – that is, you interpret it that way.
But there are logical rules for proper interpretation of texts, called hermeneutics. They may not remove all the ambiguity of the passage in question, but they can eliminate erroneous interpretations.
That is why we study the letters and historical context when interpreting historical documents, be they scripture or the Constitution.
However, in both cases, I would say that the documents in question were written to communicate timeless, objective principles and truths. While principles do allow the flexibility of application to new situations, the foundational principles themselves do not become less or more true with time.
So when we analyze the constitution, we must have some logical rules to eliminate unsubstantiated subjective interpretations that differ with the intent of the writer, the clear experimental truths, and the history that led to the explication and documentation of the principles.
In the case of the second amendment, the ambiguity of the passage may NOT be disambiguated by logical analysis.
In the case of gray areas, we CAN strike meaningful compromises, which I think the court did in it’s handgun decision – it allowed for gun regulation, but not a total ban. Perfect.
Devil's advocate. Can a woman rape a minor (male)? I'm asking if this is a punishment (death penalty for child rape) only men are capable of earning?
I know you are not asking me, because I am somewhat convinced that the death penalty is NOT required for rapists. However, I am not against it either. Rape is rape, and rape of children is more clearly wrong (because with adults you have complicating factors like mutual consent, etc.).
But I think, like with murder, we probably have three possible degrees of rape, even with children. Perhaps something like:
First degree – causing irreversible physical harm, or premeditated penetration
Second degree – causing temporal harm (bruising, injuries), penetration
Third degree – no physical harm, no penetration (fondling)
First degree could be capital, in my mind, maybe even second degree.
I know you are not asking me, because I am somewhat convinced that the death penalty is NOT required for rapists. However, I am not against it either. Rape is rape, and rape of children is more clearly wrong (because with adults you have complicating factors like mutual consent, etc.).
But I think, like with murder, we probably have three possible degrees of rape, even with children. Perhaps something like:
First degree – causing irreversible physical harm, or premeditated penetration
Second degree – causing temporal harm (bruising, injuries), penetration
Third degree – no physical harm, no penetration (fondling)
First degree could be capital, in my mind, maybe even second degree.
This is still assuming for the sake of argument that the death penalty is applicable to child rapists. Can a woman rape a minor (male)? I’m asking if this is a punishment (death penalty for child rape) only men are capable of earning? I guess this is for Aaron then since the post title is “supreme stupidity” in regard to the courts decision.
That is why we talk of returning to truth, virtue, and righteousness in law and society. Because though men differ on what they THINK these are, they are not just subjective in their impact on society.
I would say that the documents in question were written to communicate timeless, objective principles and truths. While principles do allow the flexibility of application to new situations, the foundational principles themselves do not become less or more true with time.
The problem remains: how do we discover these objective, timeless truths? Where are they? How do we really know they are truly timeless and objective and, even, true? You mention a utilitarian standard: their impact on society. This is probably the best we have, but it too is flawed. Different societies in time have had different standards for measuring what is good and bad for their societies, and these “truths” would be seen to have various impacts, depending on the point of view. In some cultures, for instance, child labor was considered right and proper and beneficial. Banning it would have been seen as detrimental. Similarly, slavery was considered by ancient cultures as as a definite good, even established by the gods, while we, of course, abhor and ban it.
It’s not as easy as you maintain to establish these values through intellection alone. Evolutionists have some intriguing ideas about how certain values came about, in that they ensured the survival and ability to prosper. We all know religion’s answer. The problem goes back at least to Plato and Socrates. We may think we can arrive at certain values; we may even act accordingly and set up our cultures around them – but we can never really know for sure.
The problem is that we, ourselves, have no objective platform, outside of time and happenstance, from which to observe and judge and formulate. We cannot escape our subjectivity. This is why our institutions should have this fluidity, this uncertainty, built in and open to the possibility of new discoveries and an evolving moral sense.
That is why we talk of returning to truth, virtue, and righteousness in law and society. Because though men differ on what they THINK these are, they are not just subjective in their impact on society.
I would say that the documents in question were written to communicate timeless, objective principles and truths. While principles do allow the flexibility of application to new situations, the foundational principles themselves do not become less or more true with time.
The problem remains: how do we discover these objective, timeless truths? Where are they? How do we really know they are truly timeless and objective and, even, true? You mention a utilitarian standard: their impact on society. This is probably the best we have, but it too is flawed. Different societies in time have had different standards for measuring what is good and bad for their societies, and these “truths” would be seen to have various impacts, depending on the point of view. In some cultures, for instance, child labor was considered right and proper and beneficial. Banning it would have been seen as detrimental. Similarly, slavery was considered by ancient cultures as as a definite good, even established by the gods, while we, of course, abhor and ban it.
It’s not as easy as you maintain to establish these values through intellection alone. Evolutionists have some intriguing ideas about how certain values came about, in that they ensured the survival and ability to prosper. We all know religion’s answer. The problem goes back at least to Plato and Socrates. We may think we can arrive at certain values; we may even act accordingly and set up our cultures around them – but we can never really know for sure.
The problem is that we, ourselves, have no objective platform, outside of time and happenstance, from which to observe and judge and formulate. We cannot escape our subjectivity. This is why our institutions should have this fluidity, this uncertainty, built in and open to the possibility of new discoveries and an evolving moral sense.