Perry and Garnett on Roper

Michael beat me to the punch, posting a link to his new paper on the role of the Court in protecting constitutionally entrenched human rights.  Michael and I have had several engaging and interesting (to me, anyway!) conversations and arguments, via e-mail, about the piece, and I commend it to everyone's attention.  Michael also referenced a post of mine regarding the Court's decision in Roper.  That post, called "Two Cheers for Roper v. Simmons," is here.  Here is what I wrote:

Like Susan, I oppose -- although, I admit, with some mixed feelings -- capital punishment.  And so, like Susan, I am pleased by the fact that, as a result of the Court's decision today in Roper v. Simmons, no jurisdiction in the United States may impose the death penalty for crimes committed by persons under 18.  Still, I am unable to avoid feeling some disappointment over the ruling.  In my judgment, the reasons offered by the five-Justice majority for overruling the Court's earlier decision (Stanford v. Kentucky) permitting States to execute 17-year-olds who commit capital crimes are both weak and troubling. 

To be clear:  the result of today's ruling accords with my policy preferences and, I believe, with morality.  Still, it is not plausible to me that the 8th Amendment to the United States Constitution prohibits the people of a particular State to decide, through their elected representatives, that some 17-year olds are capable of committing and intending acts that warrant capital punishment.  That is, it is not clear to me that the five-Justice majority was constitutionally authorized to deliver this result -- even this happy result -- to me and those who agree with me about the death penalty.   Nor am I persuaded that the practices of, and changes in, other countries -- invoked admiringly by the majority -- are relevant to the meaning and application of the 8th Amendment's ban on "cruel and unusual" punishment.

A few years ago, I voiced similar reservations about the Court's decision in Atkins, which prohibited, on constitutional grounds, the execution of developmentally disabled persons:

I like this result. It strikes me as humane, if not democratic. I would vote for it as a legislator and campaign for it as an activist. But I also live under a Constitution. And I am quite convinced that my likes and dislikes are irrelevant to the question of whether the Eighth Amendment to the United States Constitutions forbids those who disagree with me from enacting and enforcing laws that reflect their likes and dislikes. . . .

None of this is to deny that, in many respects, our constitutional regime is "counter-majoritarian" with respect to fundamental individual rights. And I see no reason to disagree with [the] statement that "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man." Still, our Constitution quite clearly reflects the judgment — one with which good and reasonable people can disagree — that capital punishment is, or at least can be, consistent with that dignity. The death penalty, then, is a problem whose resolution is left to the public square, not the courtroom.

To paraphrase my friend Michael, I think this post goes in the "Rick Garnett is Right About the Constitution and Capital Punishment (Among Other Things)" file.  =-)