NCPA - National Center for Policy Analysis

Executing Raw Judicial Power

June 21, 2002

Contrary to Justice John Paul Stevens' assertion in yesterday's majority opinion for the Supreme Court, there is no national consensus that executing the so-called mentally retarded is "cruel and unusual punishment" under the Eighth Amendment of the U.S. Constitution.

  • Twelve (12) states do not allow capital punishment under any circumstances; they would only be relevant to this case if they generally treated the mentally retarded in the justice system like children rather than adults.
  • In addition, 18 of the states that allow capital punishment either have laws barring execution for those deemed mentally defective, or have had their state laws overturned by state courts (through a similar exercise of what Justice Antonin Scalia calls raw judicial power) .
  • The Constitution requires two-thirds of both houses of Congress and three-fourths of the states to ratify constitutional amendments for them to take effect -- thus 18 states, or even 30 states, do not constitute a constitutional consensus.

The six to three vote in Atkins v. Virginia proves there is no consensus -- in contrast to mere majority opinion, which is likely changeable.

But even if there were a consensus, the Supreme Court has foreclosed the possibility of the consensus ever changing through democratic means. It's one vote, one time, forever; except the people never get to vote.

That's because Stevens based his finding of consensus on changes in state laws. Now that the Court has ruled executing the mentally retarded is unconstitutional, states are unlikely to enact laws to the contrary. Thus the decision can be overturned only by a constitutional amendment -- or a revolution in the composition of the Court. Ironically, that would require much more of a national consensus than there was for this ruling.

Source: Joe Barnett (editor/analyst) National Center for Policy Analysis, June 21, 2002.


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