Is there anyone in America who sincerely believes that when the Supreme Court declares a law "unconstitutional", that this means that it violates the Constitution in some way? If so, the Supreme Court itself cleared up that little point on March 1, 2005, in its decision in the case of Roper v Simmons.

Briefly, the facts of the case are these: Christopher Simmons told his friends that he wanted to kill somebody, and that he would get away with it because he was only 17. He apparently didn't much care who he killed: he just wanted to kill somebody. He and an accomplice broke into a house and, finding a woman there, tied her up with duct tape, drove her to a bridge, tied her up some more with electrical wire, covered her face with duct tape, and then threw her off the bridge, where she drowned in the water below. Her husband and daughter came home to find her missing. The next day Simmons bragged about the crime. He bragged a little too much for his own good: Someone reported his boasts to the police. He was arrested, tried, convicted, and sentenced to death.

But the Supreme Court overturned that ruling, declaring that any law that allows someone under 18 to be executed is "unconstitutional". While conceding that, "There is little doubt that Simmons was the instigator of the crime," nevertheless, no matter how serious the crime, "the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity."

They claim that their decision is based on the Eighth Amendment to the Constitution, which bars "cruel and unusual punishment". But they admit themselves that at the time the Constitution was written, no one understood this to mean that people under 18 could not be executed for murder. Indeed, as recently as 15 years ago, this very same Supreme Court ruled that the Eighth Amendment did not bar such executions. So why is it that these same words meant one thing in 1989 and exactly the opposite in 2005? The court gives three reasons:

Reason #1. There is a "national consensus" that did not exist 15 years ago. They explain that in those 15 years, 4 states that used to allow capital punishment for 17-year-olds changed their laws. So now, of the 38 states with a death penalty, 20 allow for executions of 17-year-old murderers while 18 do not. Because 47% of the death penalty states exempt 17-year-olds, this is a "consensus" and the remaining 53% must be forced to follow it. Just what is the definition of "consensus"? The court insists that the 12 states that have no death penalty at all should be included with those that exempt juveniles, so there are a total of 30 states where a 17-year-old cannot be executed versus only 20 where he could be. If we accept this reasoning, that makes 60%. Is that a "consensus"? Even if it is, where in the Constitution does it say that one state must be forced to pass a law just because some sufficiently large percentage of the other states has passed such a law? The whole point of having 50 separate state legislatures is supposed to be that the people of each state can decide for themselves what laws they want to have. What the people of Georgia think is right and proper may be interesting or instructive to the people in Vermont, but before now it has never been understood that Vermont should be forced to pass a law just because Georgia and Alabama said so. And let's recall that when the Supreme Court declares a law "unconstitutional", that means that no state is allowed to pass such a law ever again. So the Supreme Court is saying here that once a majority of states pass a law that the court likes, they can then declare it to be a "national consensus", and no state is allowed to even consider a contrary law, so even if people changed their minds and decided the law was a mistake, it's too late. The law is now fixed forever.

Reason #2. World opinion is against capital punishment of 17-year-olds. They make some contradictory statements about the laws of other countries on the subject, but it's certainly true that most other major nations do not execute 17-year-olds. But remember, the Supreme Court is not simply claiming here that this law is a bad idea: they are saying that it violates the United States Constitution. What does the fact that France or Libya has such-and-such a law tell us about what our Constitution says? Perhaps we could look at the laws of France and Libya when discussing what our Constitution should say, but it tells us absolutely zero about what our Constitution says now. The Constitution has a very specific procedure for how amendments must be made. Nowhere does it say that foreign governments get a vote on US Constitutional amendments.

The court points to a United Nations treaty, "which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18." So: They admit that the United States is not a party to this treaty. The United States Senate refused to ratify this treaty. Nevertheless the Supreme Court declares that it is going to impose the terms of this treaty on the country anyway. While the Constitution specifically says that it is up to the Senate to decide whether or not the United States will be a party to a treaty, the court just decided that it would take over this responsibility.

Reason #3. Finally, the court explains, "the Constitution contemplates that in the end our own judgment will be brought to bear on the question ..." In other words, "in the end" it doesn't matter what the "national consensus" was, it doesn't matter what the American people believe, it doesn't even matter what the United Nations said. In the end, all that matters is what the Supreme Court believes. If the Supreme Court decides that a jury handed out too harsh a sentence, they'll overrule it. If the Supreme Court thinks that a state passed a bad law, they'll replace it with a law they like better. If the Supreme Court feels that the people made a mistake, the will of the people will be ignored. The whims of nine Supreme Court judges supersede the law, the Constitution, and the will of the people.

It's hardly worth mentioning that they go on to dismiss the idea that a jury might be allowed to decide, based on the facts of the case, whether a defendant's youth is an overriding factor. They explain that juries are too likely to be swayed by testimony about the horror of the crime to properly consider the defendant's age. Yes, those ordinary people who serve on juries can be so dumb. They think that an innocent woman being brutally murdered for kicks, leaving her little girl without a mother, is somehow "bad" -- quaint notion -- and that the person who did it should be penalized in some way for his actions, and this poor helpless young man could be denied "his potential to attain a mature understanding of his own humanity"! Where do the common people get these crazy ideas? We're sure lucky that the Supreme Court has abolished that dangerous idea of voting on our laws, and now simply tell us what laws are good for us.

Note: All quotations are from the text of the court's decision in this case.

© 2005 by Jay Johansen

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