Roper v. Simmons (03-633)

So, I've finally had a chance to read the decision. Waddling Thunder over at Crescat is "appalled," but Mr. Thunder is, with all due respect, no libertarian. More disappointing is that I expect fellow libertarian Will Baude seems equally appalled, though he's yet to have his say. In any case, here's why every good libertarian should support the Supreme Court's decision:

On Executions for Juvenile Crimes

Any society based on rights must hold people accountable if and when they infringe the rights of others in that society. Minors, however, are categorically judged inable to hold the full rights of society. They are restricted from sex with adults, from smoking, from gambling. Some municipalities have gone so far as to institute categorical curfews on the ability of minors to leave their home after a certain hour. It makes no sense, then, to say that minors who commit crimes should be capable of being judged eligibile to have acted with the full consideration of the moral consequences of their actions. If someone isn't judged competent to decide to have sex--and is generally perceived to require "protection" by the state in such activities--how could they possibly be fully capable of making a conscientious decision to murder?

It is thus that I must say, from a libertarian point of view, that Roper should have been decided in the way it was. But what of the reasoning in Roper, which so many have taken issue with?

On Federalism

Those who take issue with this decision do so on grounds of federalism. They claim that the SUpreme Court should have had no ability to make a national rule about what constitutes "cruel and unusual punishment." But given the prohbition of such punishment is in the federal constitution, who is to determine what constitutes cruel and unusual punishment? Federalists argue that the states should be able to, absent a national consensus (more on that later).

I think this argument is weak, and in a way, intellectually dishonest. Would a state be free do determine that drawing and quartering did not constitute such punishment? What if there was a "national consensus" on the issue? Since when does what a majority or super-majority of states believe somehow sway a libertarian? Libertarians believe as a matter of principle that there are rights that need respecting, no matter what. And no number of states, because of their voters' beliefs to the contrary, should be able to sway that.

What greatly troubles me about the arguments of self-declared upholders of the federalist principle is that there is no accountability except the people when rights are trampled, and so the federalist system is used to cover up all manner of sins. The Supreme Court is expected to defer to the judgments of state constitutions and courts. This would perhaps be fine if people recognized that their state constitutions were setting some sort of potential federal precedent. But state constitutions, as we saw in the last election, are constantly used as political tools, and are not viewed in as such precedent-setting documents by the majority of people. People do not recognize, when they change their state constitutions, that they may be in fact depriving people of rights; they expect a federal check on that power.

So under this federalist framework, no one stands up and says, "it's my fault there aren't rights." The Supreme Court says, look to the Congress and state legislatures. The state courts and legislatures say, "there's no federal precedent" and say "let the voters decide." So what should be "rights" end up in the hands of a tyrannous majority--which is contradictory to the whole idea of rights in the first place. As a result, little in the way of actual rights-recognition occurs, and smart people like me end up considering moving to socialist countries just so we can get married.

On the National Consensus

I would just like to say that I believe a national consensus does exist on this matter. On Dec. 19, 1966, the Senate ratified the International Covenant on Civil and Political Rights (ICCPR). As the decision notes, "Article 6(5) of that treaty...prohibits capital punishment for juveniles... Second, the Federal Death Penalty Act of 1994 determined that the death penalty should not extend to juveniles. (18 U. S. C. §3591)." If we are to look towards a "national consensus" because (as non-libertarians like Mr. Thunder believe) we should for some reason listen to what the people have to say on issues of rights, then why isn't what the nationally-elected Congress says on this matter relevant or sufficient?