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Wednesday, March 02, 2005
Why America has (had?) a separation of powers

Matthew Yglesias has a very good post on the US Supreme Court's decision to ban the execution of murderers who committed their crimes before they were eighteen.

The 'evolving consensus' business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don't do something as evidence that a minority of states should be forbidden from doing it.

... I think, any time you have age limits (for voting, for drinking, for driving, for exectuting) you're obviously engaged in arbitrary line drawing... Legislators working through the political process -- governed by compromise, expediency, etc. -- are in the business of drawing arbitrary lines all the time. Courts, I think, should really try to avoid getting into this sort of thing which is really inherently political.

Yglesias obviously has no objection to ending this particular punishment for capital murderers who committed their crimes when in this age group, even though more than seventy murderers will now have their sentences downgraded. So it is especially commendable that he seems to recognise that in a democracy just because he personally approves of something doesn't mean that his preference should be enforced at a federal level by the Supreme Court, rather than argued for and voted on by the states and, when necessary, Congress. There are even quite a few Supreme Court Justices who don't understand that.

UPDATE: Polipundit notes (via RWN):

Justice Kennedy wrote the majority decision, and in so doing cited the 8th and 14th Amendments were violated in assigning the death penalty to Christopher Simmons, for the crime of premeditated murder. Not only did Simmons admit he planned the murder beforehand, bragged about it afterwards to numerous persons, he also recruited Charles Benjamin and John Tessmer into the crime with the specific promise that 'they could "get away with it" because they were minors'. In short, Justice Kennedy assisted a murderer in his effort to suborn the consequences of his crime.
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