The Nine Divines - and the Constitution

Gregory Kane

Actually, only about five or six justices on our Supreme Court are in full-blown divine mode at any given moment. Of the high court's nine members, only three can be counted on to consistently rule as if they have any sense: Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.

The others - some of whom have distinguished themselves as eager "penumbra raiders" - need full-immersion civics lessons about how and why the Constitution limits the powers of all three branches of the federal government.

In the latest foray into the Constitution's "penumbra," five justices concluded Tuesday that the death penalty for juveniles is "cruel and unusual punishment" and, hence, unconstitutional. Mind you, the Eighth Amendment, which forbids cruel and unusual punishment (you'll notice framers of the Constitution wisely avoided using the conjunction "or") says nothing specifically about either the death penalty or executing juveniles.

That's because the Founding Fathers left the matter of capital punishment - who gets it, for what crimes and at what age - to the states. Scroll down two sections from the Eighth Amendment in the Bill of Rights and it'll be right there: the 10th Amendment.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Many state legislatures, before March 1, 2005, had exercised that power by passing laws either abolishing capital punishment or forbidding the execution of murderers who are younger than 18. Maryland is one of the states that doesn't execute juveniles. I don't agree with the Maryland law, but I respect the legislators who passed it. They went by the book. The death penalty is a matter for state legislatures.

That's why I'm still miffed that John Ashcroft - who, thank heavens, is now the country's former attorney general - hauled sniper suspects John Muhammad and Lee Boyd Malvo away from Maryland (where they were caught) and handed them over to Virginia. The reason was obvious: Malvo, under 18 at the time, couldn't get the death penalty in Maryland. He could in Virginia.

Ashcroft - who was supposed to be so pro-10th Amendment he could have been called "Mr. States' Rights" - had no problem violating Maryland's right to try both Muhammad and Malvo. Other conservatives cheered Ashcroft's move. It's nice to know they were all for the principles of federalism and states' rights before they were against them.

More consistent on the powers of the states and limiting the powers of the federal government are Scalia, Thomas and Rehnquist. In a dissent from the 5-4 opinion that outlawed the death penalty for juveniles, Scalia wrote, perhaps too kindly, that the majority's logic was based on "the flimsiest of grounds." Then Scalia dredged up that nettlesome "s" word - as in states - when he reiterated that the matter of capital punishment is within their purview, not the Supreme Court's.

Scalia also focused on what was really happening on March 1, 2005, hinting that the high court's justices are fast becoming the Nine Divines, even if he didn't use the term.

"The court says in so many words that what our people's laws say about the issue [execution of juveniles] does not, in the last analysis, matter. The court thus proclaims itself sole arbiter of our nation's moral standards."

In other words, we're fast moving into rule by nine black coats who tell us that someone who murders a day before his 18th birthday is significantly different psychologically and emotionally from one who murders a day after his 18th birthday. They tell us as well that they - and only they - are better suited than thousands of state legislators to determine that executing juveniles is cruel and unusual punishment.

We've been down this road before. Thirty-two years ago, the Nine Divines decided they knew - better than thousands of state legislators - the answer to the difficult question of when life begins. Mind you, they had no training in biology or theology, which you would think are the disciplines that might provide some insight on the matter.

Thus was the Roe v. Wade opinion legalizing abortion handed down in 1973 after several justices went rooting around in the Constitution's "penumbra" to justify the decision. There is no telling where future penumbra raids will lead, but I do have some advice for the Nine Divines:

If you want a repeal of the 10th Amendment, just ask for it.

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