"It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness. …"
Thus begins the classic novel by Charles Dickens, "A Tale of Two Cities." It is a timeless story of two divergent ways, one leading to a good end, the other leading to destruction. Today, such a dichotomy would accurately describe two recent rulings from the United States Supreme Court, rulings that starkly illustrate the contradictory principles on which the justices make their decisions.
Just two weeks ago, the Supreme Court decided Kennedy v. Louisiana, in which the Court declared a Louisiana law unconstitutional which provided for the death penalty for those convicted of raping a child. Patrick Kennedy was sentenced to die after being convicted of violently raping his 8-year-old stepdaughter. On appeal, the Supreme Court decided by a 5 to 4 vote that the U.S. Constitution's prohibition in the Eighth Amendment on "cruel and unusual punishments" bars states from imposing the death penalty for rape of a child when the crime did not result in the victim's death.
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Relying on both an alleged "national consensus" and the court's own "independent judgment," Associate Justice Anthony Kennedy wrote that "the evolving standards of decency that mark the progress of a maturing society" dictate such a result. Yet, not once in his 36-page opinion did Justice Kennedy address what the phrase "cruel and unusual punishments" meant to the founding generation at the time the Eighth Amendment was debated and adopted in 1791. While admitting that the opinion of the people of Louisiana who wrote the child rape law was "entitled to great weight," Justice Kennedy callously ignored their wishes by concluding that the decision necessarily embodied a "moral judgment" that only the court could make. In other words, the Supreme Court can decide what the Constitution means and what is moral according to "evolving standards" only the court can divine.
The day after the Kennedy decision, the Court issued another 5 to 4 decision, this one concerning our "right to keep and bear arms" under the Second Amendment. The decision in District of Columbia v. Heller constituted the Supreme Court's first definitive ruling on whether the right to own guns was one that belongs to the state or to the individual. Unlike the decision written by Justice Kennedy, the Heller decision, written by Associate Justice Antonin Scalia, focused entirely on the text of the Second Amendment and history behind its drafting and adoption. Justice Scalia carefully examined the debates in the state ratifying conventions and the common understanding of those who wrote the amendment. Justice Scalia correctly noted, as explained in the legal brief filed by the Foundation for Moral Law in the case, that the Second Amendment traced its roots to early England. At times English kings had ordered that the people be disarmed; consequently, following the Glorious Revolution, the people demanded in their own Bill of Rights that they would thereafter always have a right to "have arms for their defense suitable to their conditions." Acknowledging that the right to bear arms was a "pre-existing right," the Supreme Court correctly concluded that the Second Amendment protects an individual's right to own guns, and thus the ban on handgun ownership in Washington, D.C., was unconstitutional.
The recognition of "pre-existing right[s]" by the Court carries ramifications beyond the right of self-defense to the right of religious freedom and the establishment of moral standards. Our Constitution and the form of government it created were predicated on the fact that such rights were a gift of God and could not be taken from us by any person or government, and that our morality was based on the law of God.
Thus, in the short span of two days the Supreme Court decided two cases based on two divergent views. The first by Justice Kennedy showed the court to be an arrogant body which rules based on its own feelings and predilections. Demonstrating a complete disregard for history or textual analysis, the court chose to create its own law as if it knows better than everyone else – including the president, members of Congress and the state legislatures – the moral standards by which we should be governed. Through raw judicial power, the court in many cases warps constitutional rights and guarantees, replacing the language of the Constitution with euphemisms like "evolving standards of decency" and "separation of church and state" to undermine the fabric of our nation.
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In the Heller case, however, the court demonstrated that it can properly interpret the law according to fixed standards and principles reflected in our history and the text of the Constitution. As Justice Scalia so artfully explained, "A constitutional guarantee subject to future judges' assessments of its usefulness," i.e., evolving standards, "is no constitutional guarantee at all." This is because what judges give, judges can also take away. We should be very concerned when the same four members of the Court choose, on one hand, to take away our right to keep and bear arms in our self defense, and on the other hand, voted to deny the right of the people of Louisiana to administer the death penalty to a man convicted of violently raping a little girl.
These recent rulings of the Supreme Court indicate that we do seem to be living in the best of times and the worst of times. The direction of the court could prove to be, as Charles Dickens concluded, "the spring of our hope" or the "winter of our despair." For the sake of our future, the judges of the court should appeal, as did our forefathers in the Declaration of Independence, to "the Supreme Judge of the World" for the rightness of their decisions.