I have to strongly disagree with Mr. Pattis. Using loaded phrases like “sovereignty trumps decency, or that the Constitution is a compact against progress,” makes for good rhetoric, but very bad Constitutional law.
The Constitution nowhere uses the words “progress” or “decency.” It says instead that “cruel and unusual punishment” shall not be imposed. The question in Roper, therefore, was not whether the death penalty for persons who murder when they are 17 is decent or progressive—it’s whether that is cruel and unusual. Those may not be exact words, but they are certainly not as abstract as “progress” and “decency.”
When Mr. Pattis refers to “[f]etishistic readings of treaty-making process and chest-thumping about treaties the Senate has refused to ratify,” he’s slighting the actual language of the Constitution, in terms that might justify any unconstitutional act by any government. “Well,” some law-and-order bureaucrat might say, “I know the Constitution says that we have to have a warrant before we search a person’s home, but we shouldn’t bind ourselves to fetishistic readings of the Fourth Amendment, and chest-thumping about rights of privacy. I mean, progress and decency require us to clear out the criminals from this neighborhood!” Heck, I argue in my Texas Review of Law And Politics article that the Guinn Court did something rather like this.
We absolutely must keep to “fetishistic readings of the treaty-making process.” The Constitution says that “all treaties…which shall be made, under the authority of the United States, shall be the supreme law of the land.” It also says that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.” A treaty which has not been ratified according to this procedure is not the supreme law of the land; it is not a law at all in the United States. This is not a “fetish,” it is a basic principle of lawfulness.
Mr. Pattis is making two claims: that the process by which the Court came to its judgment “represents no constitutional crisis,” and second, that “the killing of troubled children is wrong.” We must take care not to combine these two things, however. As I’ve suggested, Mr. Pattis fails to see the constitutional crisis because he dispenses with considerations of lawful, constitutional procedure by simply referring to such things as “fetishes.” If we can dispense with the Constitution’s limits with such a contemptuous turn of phrase, then we have little to hope for in the protection of law. Indeed, Mr. Pattis makes not a single legal argument in his post. Instead, he uses a rhetorical question to persuade us to follow the principles of other nations’ laws: “Can it be said that in a shrinking world any nation, especially a nation aspiring to world leadership, can afford snub the opinion of others?” This is an argument? It is fine to say that we ought to consider the opinions of other nations. But we have a Constitution of the United States that tells us how the government of the United States is to operate, and which is the supreme law of the land. We most certainly can afford to snub the opinion of others if that opinion is inconsistent with the supreme law of the land. And if we decide that we need to adopt a principle of foreign law, we have an amendment procedure by which to do so.
As far as his second point is concerned, I think it is deeply irresponsible, even disgusting rhetoric to refer to the murderers involved in this discussion as “troubled children.” We are talking about at least some people who are entirely capable of making, and who do make, the conscious decision to murder innocent fellow human beings, and in the cruelest possible ways. I urge everyone to read the amicus brief of the Attorneys General of Alabama, Delaware, Oklahoma, Texas, Utah and Virginia to get a realistic picture of these “children.”
The death penalty rests on the principle that a person who violates another’s rights has waived his own, and that when a person violates rights in a severe enough way, he has given up his right to life, and may, if the safety of society requires it, be put to death. If you disagree with that—perhaps on the grounds that the death penalty is not an effective deterrent, or on the grounds that the power to take life is too dangerous to give to the state, or on the grounds that the possibility of a wrongful conviction is too high—then that is just fine. But that does not mean that we should mischaracterize cold-blooded, conscious murderers, who rape, torture, and murder innocent, law-abiding citizens, as just “troubled children,” and wrap our poor logic in a soft blanket of sentimentality and emotionalistic phrasing. Nor does it mean that we should dispense with the commands of the constitution by simply labeling them “fetishes,” or smear those who insist on the basic principles of lawfulness as “atavistic.”
