Kennedy v. Louisiana and Limiting the Supreme Court's Power

The progressive movement that began in the early twentieth century has followed a gradualist approach to the erosion of liberty. Its left wing makes extreme demands, and then its center argues for moderation, which means less erosion than the left demands. The process repeats so that the extreme demands are achieved through several small steps. As well, the progressives, starting with John Dewey, have been deceitful. They argue that they they idealize democracy and public deliberation, but then they advocate increasing centralization and bureaucratization of power, for instance the accretion of the Supreme Court's power over state law, that stifles democracy. These steps have the effect of restricting the majority of people's freedom, as in the economic realm, or of increasing the power of the progressive elite to impose the cultural values of the wealthy and Ivy League-educated onto the general public.

In Kennedy v. Louisiana, the Court held that a Louisiana law that provided the death penalty for a child rapist is cruel and unusual punishment and so unconstitutional. The New York Sun summarizes the Court's reasoning about cruel and unusual punishment as follows:

'Cruel and unusual punishment,' which is prohibited by the Eighth Amendment, derives its meaning from 'the evolving standards of decency that mark the progress of a maturing society.' These evolved standards, according to Justice Kennedy, require a distinction, 'between intentional first-degree murder on the one hand and non homicide crimes against individual persons, even including child rape, on the other.' Citing precedents, Justice Kennedy claims this distinction shows that the "severity and irrevocability" of child rape cannot be compared to murder 'in terms of moral depravity and of the injury to the person and to the public.'

Kennedy v. Louisiana is a chord in the progressive symphony. In the nineteenth century the Court did not have the power to apply the Bill of Rights to the states. In 1925, near the end of the Progressive era, in the case of Gitlow v. New York the Court ruled that the Fourteenth Amendment extended its power to review state law.

In 1965, in Griswold v. Connecticut, the Supreme Court held that Estelle Griswold, director of planned parenthood of Connecticut and Dr. Buxton of the Yale Medical School could not be fined for giving advice to patients encouraging them to use contraceptives even though the legislature of Connecticut had passed such a law. In the decision Justice Douglas wrote:

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen."

Thus, the Court went from not reviewing constitutionality of state law in the nineteenth century to reviewing it in the pre-World War II period and then to creating new rules not in the Constitution ("penumbras") in the post-World War II period that the Court then dictatorially imposed on the states. Paradoxically, Herbert Croly and other progressives of the early twentieth century argued that the Court had too much power in the nineteenth century and that democracy ought to supplant Court authority. Instead, progressivism has seen a vast extension of Court power and restriction of democracy. Despite their deceptive claim to support democracy, progressives have hailed this process. Progressives' values have emphasized extension of the First Amendment to revolutionaries (the speech involved in Gitlow involved Gitlow's advocating overthrow of the government, which New York had illegalized) and birth control. Progressives have repeatedly emphasized results like these over democracy.

In Kennedy v. Louisiana the Court claims the authority to reinterpret the Constitution in light of the evolving standards of decency that mark the progress of a maturing society. Yet, there is nothing in the Constitution that gives the Supreme Court that authority any more than the Constitution suggests that its penumbras have Constitutional force. The Supreme Court has simply re-interpreted the Constitution in a way that arrogates power to itself and that is profoundly anti-democratic. The fact that the "progressive" movement has never complained about this pattern evidences its elitism.

The Supreme Court views itself as an arbiter of decency, yet the Supreme Court has no qualification to function as such an arbiter. In Roe v. Wade the Supreme Court held that states could not illegalize abortion. Yet, according to ABC News, 57 percent of Americans oppose abortion solely to end an unwanted pregnancy. In other words, the majority of Americans do not think that the Supreme Court's judgment is decent. Nor should the Supreme Court imagine that it somehow reflects the moral standards of the majority of Americans. Some justices, schooled in elite universities and indoctrinated in politically correct ideology, have values that deviate sharply from the majority of Americans. If so, then the Court has become an arbitrary possessor of power, a factional dictatorial force that represents the "Blue" half of the country, not an interpreter of the Constitution. Perhaps it is time to restrict this anti-democratic, factional force.

An amendment to the Constitution could limit the Court's power to apply the Constitution to the states. If progressives believe in democracy, then they should favor this proposal, because enhancement of the power of the states would significantly enhance democracy. Such an amendment might state that the Constitution, except where it states to the contrary specifically, does not apply to the states. Then, the states will be free to decide what "penumbras" they wish to adopt, and which Supreme Court penumbras they find morally reprehensible.