There has already been a good deal of comment about today’s Supreme Court ruiling in Kennedy v. Louisiana, holding that it is unconstitutional for a state to execute someone who rapes a child.
Commentators like Ed Whelan highlight the majority’s argument that the eighth "Amendment’s Cruel and Unusual Punishment Clause
’draw[s] its meaning from the evolving standards of decency that
mark the progress of a maturing society.’" Whelan asks whether refusing to execute the barbarian who committed the crime in question really is a sign of progress or civility.
We might, however, ask another, related question. Who decides? Who judges what constitutes progress? In our system, is that not supposed to be a decision for the citizens to make, via their chosen representatives? On what grounds does the Court decide that the people no longer have the right to regard execution as the proper punnishment for raping a child?