Evolving Standards of Decency

From the May 2005 Trumpet Print Edition

March 1, the Supreme Court, in a 5-4 decision, declared it unconstitutional to put to death minors who murder. The opinion, written by Justice Anthony Kennedy, described such executions as being “cruel and unusual,” a violation of the Eighth Amendment. Why reverse its opposite decision from 16 years ago? Kennedy cited America’s “evolving standards of decency.”

Thus, constitutionality is now determined by a judge’s perception of public opinion. It’s worth noting that Kennedy’s decision was also grounded on the “overwhelming weight of international opinion against the juvenile death penalty.” In other words, the judgment as to whether this practice complies with America’s 200-year-old Constitution was based not only on public opinion, but global public opinion.

George Will, in his March 6 Washington Post column, ridiculed the decision, calling it “an intellectual train wreck.” He remarked that Kennedy made the ruling based on the fact that “two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.” America didn’t even sign one of those conventions, and within the other it specifically wrote a clause to retain its right to execute minors. These facts are apparently inconsequential to a majority of the Supreme Court’s justices.

Mr. Will later wrote, “Justice Antonin Scalia, joined in dissent by Justices William Rehnquist and Clarence Thomas (Justice Sandra Day O’Connor dissented separately), deplores ‘the new reality that, to the extent that our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years).’” Truly, in addition to being plagued by moral relativism, the decision is yet another example of increasing judicial overreach, treading on territory that should be reserved for state legislatures.

God’s law is an absolute standard that does not shift with public opinion (Romans 7:12; Hebrews 13:8). For more, see Trumpet editor in chief Gerald Flurry’s explanation in the January 2001 issue of why the decidedly modern notion of an “evolving constitution” is so dangerous.