It’s becoming more and more clear every day that the law isn’t what’s written on the page, it’s whatever the judiciary feels like making it. The Kennedy v. Louisiana decision–where the Supreme Court ruled that the death penalty was cruel and unusual punishment for child rapists (and bear in mind that at the time the constitution was written, capital punishment was considered perfectly appropriate for horse thieves)–is just the latest example. Andy McCarthy sums it up on National Review’s Corner:
And as for their “proportional” punishment argue, I think it’s silly on its face — read the almost unreadable (because it’s so excruciating) account of the rape and ask yourself whether it is really “disproportionate” to administer lethal-objection execution to a man who committed this type of barbaric a sexual assault on a child.
Wouldn’t it be refreshingly honest if activist justices just bluntly us: “We don’t like the death penalty and we can stop it because there are five of us.” Sure, it would be tyrannical, but at least it would be accurate, and not nearly as nauseating as what passes for reasoning in these cases.