Strict constitutionalists are always apprehensive when the U.S. Supreme Court closes its annual session having ruled so erroneously as it has this year. We wait with bated breath to see what will be the Court's latest outrage and what liberal agenda will be declared to be a part of the Constitution. We know now.
The Death Penalty and the Mentally Retarded
The Court had previously held in Penry v. Lynaught in 1989 that executing mentally retarded persons who were guilty of murder was not cruel and unusual punishment under the Constitution. Based in part on Penry, Oklahoma Governor Frank Keating recently vetoed legislation exempting mentally retarded persons from the death penalty. In Oklahoma, and presumably in all states, a murderer may not be executed unless it is proven that he or she had a deliberate intent to murder as well as the capacity to know right from wrong. Now, this has changed.
In June, the Court overturned Penry and held in Atkins v. Virginia that executing mentally retarded persons convicted of murder is "cruel and unusual" punishment. What makes the Atkins ruling so outrageous is that the Court reversed the death sentence while admitting that "[m]entally retarded persons frequently know the difference between right and wrong and are competent to stand trial." The Atkins defendant, who had twenty previous felony convictions, had carefully planned his crimes. He clearly knew that murder was wrong since he attempted to cover up his act, but since he scored low on an IQ test, he was "rescued" from the death penalty.
It is very cruel for an innocent victim to be murdered, but it is apparently crueler to execute the mentally retarded murderer even though he knew exactly what he was doing. To paraphrase Mr. Brumble in Charles Dickens' Oliver Twist: "[I]f the law supposes that... the law is a ass, a idiot." Most murderers are not the brightest people on the block, but the dumbest. Must one now be a rocket scientist to be worthy of execution? And how many people might intentionally score low on their IQ tests if their own lives were at stake?
Governor Keating "respectfully" disagreed with the Court, but does the decision merit our respect? The issue at stake in Atkins really had nothing to do with the Constitution. Nothing in the Constitution exempts the mentally retarded from the death penalty, as the Court had upheld in 1989. The 8th Amendment merely prohibits "cruel and unusual" punishment. The clause was taken from the 1689 English Bill of Rights under which whipping, pillorying, excessive imprisonment, or disemboweling were prohibited. As the Supreme Court held in Ex parte Kemmler (1890), the clause prohibited such methods of punishment as burning at the stake, crucifixion, and breaking on the wheel, but not the death penalty. The clause did not mitigate a person's mental status. Moreover, the Bible, on which so many of our criminal laws are based, makes no exemption from the death penalty for the mentally retarded.
The Supreme Court had held in Barron v. Baltimore (1810) that the Bill of Rights, including the 8th Amendment, restricted the federal government only and not the states. The 14th Amendment, enacted in 1868, did not state that the Bill of Rights was a restriction on the states, but the Court nevertheless held that it did in 1925 (while overturning numerous precedents), and without documenting or even explaining how or why. After Professor Charles Fairman demolished this "incorporation" theory in his famous Stanford Law Review article, the Supreme Court reversed itself in Bartkus v. Illinois (1958) and held that the 14th Amendment did not apply "any of the provisions of the first eight amendments" to the states. Since then, more liberal Justices have ignored Bartkus and continued the emasculation of states' powers and the right of the people to republican government. In 1962 the Court held for the first time that the 8th Amendment did, after all, restrict the states.
A Living Constitution
The Court, in fact, stated that the actual basis of its decision in Atkins was "that a national consensus has developed against" executing the mentally retarded. Only 18 of 38 states that allow the death penalty have such bans. Some consensus! The Constitution, as the Court incredibly first told us in 1958 and again in Atkins, must be interpreted based not upon the Framers' intent and the text the Court is sworn to uphold, but upon "the evolving standards of decency that mark the progress of our maturing society." This is the "living Constitution" with a vengeance under which the Constitution means just about anything the Justices want it to mean.
Robert Bork commented on the revisionist Constitution by relating the anecdote of a new State Supreme Justice, who, when he meets a U.S. Supreme Court Justice, says, "I'm delighted to meet you in person because I have just taken an oath to support and defend whatever comes into your head." The "living Constitution" doctrine assumes the Justices are infallible, or as Professor Edward S. Corwin said in the 1930s, that on account of "some mystical connection between the Court and the Deity, the Court is able... to speak the authentic Constitution...." This, Corwin said, provides "grounds for skepticism."
In regard to overruled cases, Corwin asked, "which Court was it that enjoyed divine inspiration — the one that did the overruling, or the one that was overruled? And why this discrimination of divine favor? And when a decision disallowing an act of Congress is a five-to-four decision, is the inspiration enjoyed by all the majority judges, or only by the odd man?" Now however, since the Court no longer even acknowledges the existence of God, "divine" inspiration must be discounted. Perhaps the source of these "evolving standards"1 is, as Justice Scalia himself jestingly suggested, newspapers, radio talk shows, public opinion polls, and chats at the country club? No. One suspects the source is the Justices own personal beliefs, feelings, or their "gut reactions." Justice Douglas even admitted most of his constitutional rulings were based on these.
What the Court has done is distort the Constitution and usurp the states' constitutionally guaranteed powers of republican government. "Usurpation," George Washington said, "is the customary weapon by which free governments are destroyed." Chief Justice John Marshall called usurpation "treason to the Constitution." It is the function of the Court not to rewrite the Constitution or to legislate laws, but to interpret the Constitution based upon its original meaning. James Madison, the father of the Constitution, said its "legitimate meaning must be derived from the text itself" — not evolving standards. The Court should never be a forum for liberal special interest groups to achieve what they cannot in the Legislature. What is the sense in having a written Constitution if the Court adjudicates based not on the written Constitution, but on what they proclaim to be a "national consensus" or "evolving standards"?
In doing so, the Justices usurp legislative powers in the guise of interpretation and engage in, as Bork said, "civil disobedience, a disobedience arguably more dangerous, because more insidious and hence more damaging to democratic institutions, than the civil disobedience of the streets." Atkins is a classic case of "dumb and dumber" jurisprudence. It merits neither the respect nor the obedience of the states, but instead their defiance.
1. The Court has not exactly been infallible in determining "evolving standards." After it declared in Furman v. Georgia (1971) that capital punishment violated these standards, and presumably a national consensus, 37 states immediately re-enacted death penalty laws.
- William D. (Bill) Graves
Bill Graves is an Oklahoma City lawyer and a member of the Oklahoma House of Representatives.