Strengthening Constitutional Self-Government

No Left Turns

You Say You Want an Evolution

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?

Discussions - 22 Comments

A society that can't execute a rapist, {and notice I didn't narrow the category to the rape of a child}, is a society that has lost it's moral bearings.

The court reveals their continued unfeeling, callous disposition on the issue; it's a clear case where "they just don't get it."

The list of capital offenses needs to be expanded, not narrowed.

I suppose we should hand it to Iran on this one - they've got the "progress", "civility" and "moral bearings" that the U.S. can presently only aspire to...

Perhaps there are other things that America can learn from Iran, that are described in the article.

[Sic].

Craig. I don't understand your point. The article to which you link describes a violation of due process which leads to a conviction for a crime that probably wasn't committed.

That's different from saying that one can make a plausible argument that it is reasonable to execute a man who violently rapes an 8 year old girl. Hence it is reasonable to argue that the Court is, in this decision, undermining the rights of self-government.

Second point. Doesn't the article to which you point show why it is a bad idea for the Court to rely on foreign legal opinions? Nowhere is it written that they will always rely on the opinions of Progressive Europeans when looking abroad. Once the precedent is established, unintended (although predictable) consequences are likely to follow.

Yea, we all expected the passing and glib observation that since there are islamic countries with the death penalty, ipso facto, it must be tainted, retrograde and thoroughly anachronistic. Put a check next to that one of the checklist. That didn't take long.

Of course it's really a failure of imagination. Some can't visualize and imagine what a rape is like, or prefer not to try, prefer not to really dwell on it, because if they did, they might just conclude that capital punishment isn't just appropriate, but absolutely called for.

Have you any other shallow observations to share with all of us on the issue at bar?

Are you suggesting a level of interaction between the people and the legal system that would only be possible in a small republic?

Vero Possumus Mr. Adams?

Mr.Lewis. Why would it only be possible in a small republic? What's unreasonable about allowing the represenatives of the people, gathered in state legislatures, to make such determinations?

In fact, I'd make the opposite argument. Only a small republic would have few enough people that there could be an evolving standard. A large community has too many, and too varried opinions, to have an evolving understanding of justice or liberty. The best solution, in a larger republic, would be to have it determined by rule, in the legislature.

I understand your point Mr. Adams but I respectfully disagree, or I don't understand it and am thus incapable of disagreeing. What is on trial here if I had my way would be epistemology. Despite the fact that I hate using analytical terminology because I find it problematic and misleading I would say that the court seems to be running a coherence epistemology. In other words the truth of a belief is a function of its relationship with other beliefs within one's web of beliefs.

Now in my analytical mode which I employ only to shorten arguments, I would claim that stripped of detail essentially Toqueville and Hegel are both representative of coherence epistemology. Toqueville is more concrete in some ways, and Hegel is trying to collapse all epistemology into incoherence, or rather he is interested in explaining "evolving standards" with reference to what happens when coherence doesn't cohere. "Evolving standards" are essentially the product of different epistemologies+different world views clashing. In small republics "evolving standards" are less likely, because there are fewer tensions. Large mature republics on the other hand are made up of diverse views, a problem only accented by an increase in information and specialization. Indeed the number of experts talking between each other in private language is on a drastic increase, as would be predicted by a coherentist account of understanding. For Toqueville the question is how judges would go about adjusting sentencing, because Power in the last account is dependent upon the mores of the people, and if you look at how Toqueville discusses mores you might if you were an analytic philosopher type be tempted to convert this to a coherentist account.

It may very well be the case, and perhaps of necessity it is the case that when judges talk about evolving standards they are only talking of their own particular understandings of the culture and morality, and how changes affect the status of understanding in the first place.

Toqueville says that trial by jury is a great american invention that actually works to educate us americans, but while I am no legal expert it may very well be the case that trial by jury is dependent upon certain moral assumptions, or that the requirement of "reasonable doubt" is. Have changes in society changed the function of "reasonable doubt"? Will a jury adjust what it considers to be "reasonable doubt" if more heinous punishments are taken off the table? Might such a rulling actually end up being less lenient on sex offenders?

I don't know, what I do know is that the concept "evolving standards" doesn't seem to make sense outside of a coherentist or sociology of ideas epistemology.

I notice, but I could be wrong that when conservatives worry about the consequences of belief X, be it evolution or naturalism they invariably make deterministic claims about consequences in the culture at large that assume a coherentist epistemology, meanwhile being altogether comfortable lambasting such views as "relativism"...Because politicians might promise to pass laws for the sake of logrolling demographics that feel strongly one way or the other, I am generally just as comfortable with the court deciding on matters of legal evolution.

In answer to the question who decides? Judges, the epistemic foundations of the judges, legal philosophy, and the sum total of manifold perspectives and key events innumerable and unfanthomable.

Small Republic example: The Puritans, they were free to vote and order affairs but they all "agreed" to agree on a foundational moral epistemology, that entailed death for a much wider range of offenses. Large Modern Republic: The United States, much more diverse and with clashing world views, ergo "evolving standards".

One can think of "evolving standards" in other ways as well, but in my view standards don't evolve unless there is a conflict(a la long live the unreasonable man). Now I don't do much with the law I am just a poker player who happens to enjoy reading political philosophy, certainly not a proffesional academic. I was on the other hand wondering if Culturally speaking Toqueville may be right about the legal mindframe trickling down into american society.

Naturally I don't necessarily disagree with Whelan, concerning his doubts about progress, because I am a big enough relativist to understand that progress itself is relative being as how there are only 24 hours in a day and as Hobbes points out all men must sleep. On the other hand I disagree with Dan, or rather my recollection of Adam Smith's essay on the rules of morality lead me to suggest cooler minds than such immagination could produce should prevail. In other words such a judgement could be "progress" if some parts of society have come to an awareness that such acts may themselves be determined by various factors, and thus only wish to "punish" him so as to keep society safe...(but we are right back into coherentist epistemology).

"The article to which you link describes a violation of due process which leads to a conviction for a crime that probably wasn't committed."

Based on the article, I don't see how one could draw a definitive conclusion on the "violation of due process" issue. Is due process an important issue to you? Always?

The article is clear on their being executed for raping a child, however.

My point was, I thought it was clear enough, that the people of a country that are so frequently referred to as savages and barbarians do not "refuse to execute the barbarian(s)" who rape children. Of course it is only one issue of many within the criminal justic framework, but still I find it interesting that the Right is in alignment here with something that, I would have thought, makes a solid point in a good case for Iran as barbaric. If the will of the people, to which you now seem so defensive of, comes to determine that the lopping off of a hand is the proper punishment for theft, would that too be an element of progress in your notion of a mature society?

If one rapes a child, as horrific and despicable and loathsome as that is, it is not killing. Those who follow the stricter Biblical guides for punishment often use the "eye for an eye" rule. I note that it is not a head for an eye.

Lastly, would true progress (or maturity, or both) allow for the execution of all rapists, not just child rapists? Execution of date rapists? Husbands that rape their wives? This could get interesting...

"If one rapes a child, as horrific and despicable and loathsome as that is, it is not killing. Those who follow the stricter Biblical guides for punishment often use the "eye for an eye" rule. I note that it is not a head for an eye."


When anyone, male or female, rapes anyone, male or female, of any age, the devastation is incalculable. What is violently stolen may not be "life" itself, but it is the soul, sanctity, pride, self-respect, peace, security...in essence, everything that makes a human being more than an animal. The victim will NEVER be fully whole again, dealing with increased risk of depression, post-traumatic stress disorder, alcohol and drugs abuse. Some victims go on to become perpetrators themselves.


"Lastly, would true progress (or maturity, or both) allow for the execution of all rapists, not just child rapists? Execution of date rapists? Husbands that rape their wives? This could get interesting..."


There are two issues at stake here. First is the balancing act between law enforcement as "rehabilitation" verses "punishment" of the guilty. The biggest hurdle here is proof beyond reasonable doubt, but that is the same for any crime, although I admit that our society has so denigrated and demoralized the sexual act that it is increasingly difficult to prove rape.


Second is who we are as a people, a society and a nation. Which is more "barbaric", to take the life of the rapist, or to to allow such crimes to be punished ineffectively, if at all?


Until our society has “progressed” enough to not produce rapists at all, I don’t believe we have progressed enough to eliminate execution for rapists.

Mr. Lewis. I can only reiterate my initial point, which is that your example seems to prove my point. Only a small, homogenous community, such as Puritan Massachusetts, can have, in fact, the kind of cultural consensus that you describe, and hence only a small community can have such an evolution. A large republic, particularly a federal-republic, is multi-cultural (although not in the sense in which the term tends to be used nowadays). What happens when a significant percentage of the country does not agree with or share: "the epistemic foundations of the judges, legal philosophy, and the sum total of manifold perspectives and key events innumerable and unfanthomable"? The Court takes away their rights to self-government when it decides that they don't belong to the culture that is evolving.

I suspect that if we polled the Americans citizenry, a majority would hold that execution is a proper punnishment for raping a child. How does that square with the Court's belief that there is a single, evolving, cultural standard? The notion that you can have a single, evolving cultural norm in a country of 300 million is pure fiction. That's why it's wise to let the people, through their representatives, address such qestions politically--by negociation, argument, and compromise in the legislature. There's no consensus, only a negociated solution.

On the other hand, since laws do, in fact, have cultural impact, the results of those negotiations will, in fact, shape opinion, up to a point.

The logic of your argument seems to be that a large nation cannot be a republic. A large nation can only be ruled by a well-educated elite that shares a common philosophy/ culture. That's precisely what the founders argued against (see Federalist 10 and 51 for starters).

Craig, all I can say is that your position is not terribly nuanced. Just because it might be unreasonable to execute people for some kinds of rapes does not mean that it is unreasonable to execute people for all classes of rapes. (I will, however, concede that the article only suggests that the conviction was a sham, it does not prove it.) P.S. I'm surprised to see you invoke an eye for an eye. Very reactionary of you. (Of course, the Bible does describe rape as a capital crime).

I don't know if any of you who think the Court rightly decided here actually read about the facts in this particular case. Perhaps you did and you still think death is too harsh. Sadly, I think death may be too good for the perpetrator (the girl's stepfather) in this case. The little girl was only 8. She was found in a pool of her own blood coming from the vaginal area. The doctors who examined her said that they had never seen anyone so horribly mangled and permanently injured by a rape. This only describes the physical extent of her injuries, of course. God only knows what lies ahead for this poor little girl. Do you know any eight year-old little girls? Perhaps there are crimes and other acts of violence that seem more horrific than the rape of a child--if only because of their scale--but it is hard to imagine a type of criminal who is more vile, more evil and more beyond all hope of redemption (at least from man) than a one who could do a thing such as this. There is no purpose to keeping such "people" among us. If they cannot be put to death because we are too weak to accept this necessity, then we had better wise up and keep them locked away forever. There is little difference between permitting this criminals to go free after "doing their time" and accepting packs of wild tigers walking amongst us.

Richard - I'm all for nuance (is the Kerry candidacy far enough in the past that nuance is ok again?), I really am. You're certainly correct that not all rapes are the same. I am just not seeing the reason in expanding the death penalty to a non-fatal crime. I certainly grasp the heinousness of the crime of child rape, even though I hate how discussions of these topics nearly always devolve into one-upmanship affairs regarding one's level of revulsion, horror, shock, disgust, anger, etc. and, of course, the punishment (see Julie Ponzi's "death may be too good" for them comment). I think it's more than safe to say we're all on the same page as to how the crime is horrific.

But I don't see how death is a reasonable punishment for the specific crime of child rape. I suppose it's the innocence factor. I don't see how the punishment fits the crime. Mechelle said "What is violently stolen may not be "life" itself, but it is the soul, sanctity, pride, self-respect, peace, security...in essence, everything that makes a human being more than an animal." So rape victims actually lose their humanity? Putting that question into the "arguable" slot, I guess I see some chance for some recovery by the victim. Maybe that's impossible? I've known a victim of childhood incest, and while her life was often a challenge with/because of such horrifying memories, I think she had her humanity and was glad to be alive. Mechelle also noted that "Some victims go on to become perpetrators themselves." Interesting point; should these perpetrators be disqualified from the death penalty, seeing that they've lost "everything that makes a human being more than an animal"?

Where would the line be drawn - victims over 18 would be cause for a prison term, victims under 18 would be cause for the execution chamber? 17, 16, 12? What about the mentally retarded, or even the elderly rape victims? It gets very interesting considering when considering how some children, and even the retarded have been found to be guilty and eligible for execution for capital crimes. Would a 16-year-old who previously, of his/her own volition, lost her virginity be a victim that could lead to a death penalty? What about priests as perpetrators?

I understand that not all rapes are the same - primarily, I acknowledge a distinction between those that are perpetrated via physical violence, and those using psychological abuse (and of course, those utilizing both). But making distinctions among them for determining death leads to a whole array of very tricky questions, at the very least. If you're going to expand the death penalty to rape, why ONLY child rape?

Julie Ponzi said that "Sadly, I think death may be too good for the perpetrator (the girl's stepfather) in this case." So, what do you suggest specifically, Julie? Is it time to bring torture into the domestic law enforcement arena? Would you like to see that? And that is a serious question, given this venue.

I am curious as to what Dan has in mind when he says "The list of capital offenses needs to be expanded, not narrowed."

Lastly, I don't know if you were appalled or impressed by my "reactionary" reference to the "eye for an eye" Biblical guideline. Indeed, you're right that the Bible describes rape as a capital crime, but it also calls for death for adultery, male homosexual sex and bestiality. That's not all - there's also a betrothed woman who does not scream out while being raped, a woman who is found to be non-virginal on her wedding night, worshiping other gods, cursing at God's name, cursing at a parent, prostitution, contempt of court, etc., etc. Do you think Scalia would work to give you half of these as capital offenses?

The wretched Crain Scalon opines;

I am just not seeing the reason in expanding the death penalty to a non-fatal crime.

But you do not have to see it. All that matters is that "we the people" see it, and wish our legislators to act accordingly. If we wish the death penalty to apply to spitting on the side-walk, that is none of the Nine Ninnies concern.

Where would the line be drawn

Wherever we are disposed to draw it.

The wretched Craig Scalon enquires:

Do you think Scalia would work to give you half of these as capital offenses?

Justice Scalia did not "work to give" us anything, you fascist troll. The Court does not grant us favors. Scalia simply argued that the people have the right to self government, something spelled out in great detail in the Declaration of Independence.

My point in saying that death was too good for the guy, Craig, is that there is nothing we are permitted to do as a civilized society that can balance the scales of justice in this case. This is also true in murder cases. You can't bring a murder victim back to life and you can't make a child rape victim "unraped." Death seems a paltry price to pay for the offense--but it is (as I said, sadly) the strongest thing we have. Obviously, there's nothing civilized society can do to continue the punishment of the guilty beyond death. And your remark about "torture" before death is just silly. No one here has advocated torture as you imply. I would not advocate real torture of any kind--not because the guilty of this type don't deserve it--but because those who would have to do the torturing don't deserve to have to do it. It is bad for them and for the rest of society to witness it--though I'm quite sure you and I have very different notions of what constitutes real torture.

But I do think facing death as a guilty criminal is an easier task than facing life as the victim of child rape--particularly when the perp is supposed to be a parent to you. I am not OF COURSE saying that it would be better for a victim of child rape if she had died. Where there is life there is always hope (and yes, I know this is the argument some Catholics use to argue against the death penalty--though they're hoping for the conversion of the guilty's soul while it's unclear what Craig's hoping for). I think hope for the guilty is a luxury in which society is under no obligation to indulge. And I think it's positively foolish to indulge in this luxurious fantasy at the expense of the innocent by allowing these beastly characters to walk among us once convicted. There is no amount of "time" they can do to pay for their crimes. Though you claim to know a victim of child rape, I wonder how well you know her and how much you have talked to her about what the rape did to her and how difficult recovery has been. Perhaps you have had lengthy conversations, I don't know. But if you have I am at a loss to explain how you don't see why the rape of a child is the moral equivalent of murder and quite different from the rape of an adult. The child's body lives, true. But the soul isvery often lost in these cases. You were cruel to Mechelle in picking on her "everything that makes a human being more than an animal" phrase, as clearly she didn't mean it in the sense you imply and you know it. Her point (if I may be so bold as to suggest that I understand it) is that there is some spark of life that is effectively killed in the victim of child rape and abuse. This difference makes it at least equal to murder. And, as I said above, I think the sheer evil that must possess a person who commits the rape of a child is so heinous and so dangerous--it is almost worse than that of a plotting murderer because it is more ravenous and consuming. A murderer may be satisfied with one. There is, as I said, a huge difference between the rape of an adult and the rape of a child. You don't see that? An adult can process the whole thing differently than a child can. For a child, it is a betrayal of trust (and usually from a person who is close to the center of that child's whole world) that puts her at odds against the world. An adult has enough other experience with humanity to know that the rapist is, most likely, not representative of the whole of human experience and interaction. A child has the potential to figure all of that out . . . but after a rape she usually has to go about doing that utterly alone. Even when there are adults who try to give her the sincere love and guidance she needs, the child's sense of trust is usually so broken that it is impossible for her to embrace them.

But I say none of this for you, Craig. I have no hope of persuading you of anything. You are closed off from conversation by your blind adherence to your talking points and you come here, it seems, only to waste your time (of which you seem to have abundant quantities!) and attempt to waste ours. But, in fact, you fail to do the last. I think you would leave if you only ever realized how much good you do for us in entertainment and forced remedial thinking. But I don't worry too much about letting that cat out of the bag since he's likely to jump right over your head anyway.

Jindal signed a bill today which seems to be a partial solution. We can only hope.

Julie, I don't know why you had to cave in to the personal attacks. I can see that, on most issues with which I disagree with you and the other bloggers here, I have as much of a chance of persuading you of anything as you do of me. My views are merely "blind adherence to [my] talking points" whereas you, I presume, are open to consideration of other's opinions, and your thoughts are principled conclusions drawn from honest erudition of only the greatest and deepest thinkers?

As for my "abundant quantities" of time, that's a strange bomb to throw for someone who blogs here so much. I am honestly intrigued by the views expressed here, and find that I learn some valuable things from time to time.

I really don't understand the closed society mentality that I've seen expressed here so often (by some bloggers and commenters alike). It's as if it's a blog strictly of, by, and for right-wing conservatives, and if others dare to visit, they should just keep quiet. I don't enjoy echo chambers, be they right or left or even faithfully moderate. Apparently some people treasure them.

I'm glad I asked the torture question. No, I didn't imply that torture was advocated. Yet, you said "death may be too good" for the child rapist, so I naturally wondered, what could be worse? After all, a non-fatal violent act has been described as possibly worse than death. You said, "I would not advocate real torture of any kind--not because the guilty of this type don't deserve it--but because those who would have to do the torturing don't deserve to have to do it. It is bad for them and for the rest of society to witness it..." So, reading what you said in a straightforward way, it is NOT putting words in your mouth to say that you feel child rapists actually do deserve to be tortured, correct? Why would it be bad for those "who would have to do the torturing"? Why would it be bad for a voluntary employee of the criminal justice system to administer a deserved justice? Do you think that it's wrong to ask employees at Huntsville's (TX) prison to participate in so many executions? (I ask because surely that is seen as a deserved punishment as well) I'm confident that it would not be difficult to find volunteers for the torturing, and probably some would find it satisfying and/or cathartic. Why NOT let them do it? And, if you don't consider the documented controversial acts at Abu Ghraib to be torture (or do you?), then why not at least utilize those techniques as part of a larger punishment plan (perhaps leading up to the execution)?

Okay, I can agree that there are some clear differences between the rape of an adult and the rape of a child, so I direct you (although you may well dismiss it as a waste of your time) to my previous questions about some specifics. Age cut-offs and the like. Interestingly, Mechelle's post seemed to indicate she was open to execution for all rapists. She noted that the devastation for rape victims of all ages is incalculable. I can imagine - believe it or not - a more consistent and plausible line of argument for executing all rapists than I can for the child-adult distinction. Not that I'm trying to suggest that, of course.

Given our context here, it is sort of amusing that you describe my "picking on" Mechelle, by quoting her, as "cruel". Seriously - cruel? I really wasn't trying to be harsh. If she agrees that I was cruel, then I apologize for that. If so, then I guess I got too wrapped up in my analysis of what was written.

Although I truly appreciated Julie’s defense of my statements, I do not think Craig’s comments about them were “cruel”. Anyway, I “picked” on him first, so “all’s fair.” However, I do agree with Julie that they were willfully misunderstood, and thank her for clarifying them so beautifully for Craig.


Although Craig twice misquotes me as suggesting “rape victims actually lose their humanity,” I made no such statement. What I said is "violently stolen” (there is a big difference) and what I meant is that the inner life of a rape victim is often damaged to the same extent that physical life is damaged in a murder. Of course, there is still hope for new life to develop and healing to take place, but the past life is gone forever. It will never be the same. (By the way, Craig, give your acquaintance my sincerest wishes for a long, happy and love-filled life.)


I am indeed “open to execution for all rapists”, but not adamant about it. There are levels of guilt and innocence in instances of rape as well as in murder. (Murder 1, 2nd Degree Murder, Manslaughter, etc.) Not all murders are subject to the death penalty, nor should all rapes. Each must be decided on a case by case basis, according to the laws of the people where they are committed and the burden of proof.


The Supreme Court has no more authority to declare execution the correct punishment for ALL rape cases as they do to rule it inappropriate for ANY. As John so tersely states in Comment 15, “All that matters is that "we the people" see it, and wish our legislators to act accordingly.”

Ok, Julie, I know that this thread has gone over the NLT blog waterfall and is now consigned to obscurity and endless spam comments, but just in case you see this I wanted to address what you said that "you and I have very different notions of what constitutes real torture."

Yes, I suspect that we do, and I suspect that you approve of whatever the Bush government has done up to this point. Please check out these items, wherein Christopher Hitchens - a guy that I'm not a big fan of, on the whole - agrees to be, and gets, waterboarded. He determines that it's torture. If only more conservative journalists and pundits would have the integrity to try these "enhanced interrogation techniques" or whatever dishonest euphemism is being used today...

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