The Right Coast

March 01, 2005
The evolving standard of decency
By Tom Smith

Here's a deep question. Do you have to read an Anthony Kennedy opinion reversing a recent Supreme Court decision on (reportedly) grounds that "the evolving standards of decency" require it, to know it is utter rubbish? It is unfair, unscholarly to leap to that conclusion? Or is it like concluding, if you watch Baywatch, you will see babes?

I do in fact believe that standards of decency evolve. It has been known to happen. I am far from sure they have evolved any, rather than devolved, or declined, since the Court last trained its moral searchlight on the question of the death penalty for underage killers. I wonder how the Court determines whether the standard of decency has evolved to this or that point? I suppose it is impertinent of me to wonder, but it's hard not to.

It seems more likely what they really mean is that they are going to give American society a shove in the direction they consider more evolved in the decency department. What they really mean is something like, You can't execute someone for a crime they commited when they were a child! That's indecent! That view is not crazy. Just somewhat naive about the depravity 17 year olds are capable of displaying, such as in the case at bar, where the miscreant tied up a woman and threw her in a creek, to drown like a dog.

I can even allow some evolving standard of decency argument with respect to cruel punishment. I imagine an accurate history of late 18th penology would be pretty blood curdling. So, fine, no tongue slitting or whatever.

I'm not going to read the Kennedy opinion. I don't want to know. I don't watch Senators bloviate on CSPAN either. That's what we pay constitutional scholars to do, like those poor souls who follow the elephants in parades.
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WELL, I guess you can read this. I read it, and I am pissed off, but not ill. It's Althouse with duelling excerpts from the Kennedy and Scalia opinions. Maybe I could have a research assistant sort of interlace the Kennedy opinion with Scalia rebuttals and that way get through it. Or maybe I'll just find a multi-volume fantasy novel to hide in for a while. Any ideas?

And what is this use of international precedents? I mean, puhleeese. I mean, maybe if you have some novel question of law that has just never come up in U.S. law, like the ownership of marine mammals stranded in tanks aboard ships in international waters, for which we turn to the traditional laws of Yap, which happens to speak to this point, because of their frequent encounters with flying fish. Maybe then. But, O My Court, we already had law on this, and you made it.

Just one final point on the evolving decency business. As long as we are making up laws, here's my suggestion for evolving decency. Let's evolve the decency of the prospective youthful killers first, then get rid of the death penalty. So, after all this decency evolved, we would notice, hey, it's been a decade or so since we got any 16 or 17 year olds commiting any brutal rape-murders, carjacking-murders, or depraved indifference execution of witness murders! Not a one! Decency must have evolved! Well, we might as well get rid of the death penalty for them. It's not as if we need it! That is how the evolving decency analysis could go. Sort of a desuetude approach. Is it "in" the constitution? Oh, you silly, naive little fool. Of course it is, of course.