I've gone over why I think the "abortion is a right" argument is, well, moronic before. A lot. So I'll spare you that. But in the recent case Roper v. Simmons the court ruled that minors cannot be given the death penalty (also known as: slippery slope in action.)
A site linked from Rox Populi (a site I read religiously) mentions that she thinks Scalia's dissent is "Stupid." Now... my boy's getting attacked, and I gotta defend him. Luckily, the site in question makes it very, very easy.
First of all, there is a pretty big difference between the state deciding to impose death on someone, and a person making decisions about their own medical care. It behooves the state, I think, to hold a high standard when it comes to killing people. Let me explain why the context is different for Scalia, who is apparently kinda stupid: the issue at hand is not the moral agency of children; it is on the power of the state. Not whether children can or cannot make moral decisions, but whether or not the state should kill people who may not be capable of making informed moral decisions. Hence, as Kennedy writes, "When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity." Hence, the decision is a conservative one: before the state can kill someone, it needs to be certain that the person is a mature moral agent. Since mature moral agency is hard to measure, let us err on the side of caution.
Let's first dispose of the "it would behoove the state" part. Great. It would be a fantastic policy decision for the state. The state would also like to deter children from killing. This is a good debate for the policymakers, but that doesn't make this a constitutional issue. In the specific case at hand, the 17 year old in question was on the record as telling friends of his that he would get a lesser penalty for his premeditated murder because he was younger - he clearly displayed a cognizance that assumes moral agency at least on par with a twenty year old who plans and commits a murder with no such legal understanding. This is a circumstance where someone clearly used the potential for penalty as part of their calculus (much, I am sure, to all the "criminals commit crimes without ever thinking ever!" campers). She then makes an incredible insight: this is a case about the power of the state. Yes. It's the power of the state to sentence juvinile offenders (aged 16 and above, by previous case law) to death. Or, more accurately, whether or not sentencing juviniles to death constitutes "cruel and unusual punishment." The presumption of the court is that all juviniles who commit these crimes do not, in the words of the opinion of the court, have a "mature understanding of humanity."
These problems are very real, and she's right, we need to protect these kids from the state. We could even have a whole system they went through where twelve people sat down and had to unanimously decide that the individual in question was morally culpable to a degree that warrented the sentence that was asked for by the district attorney and accepted by some sort of legal expert... some sort of... judge? But that court might be wrong! Then we could have another court above that, and anoth... oh wait. That sounds an awful lot like the criminal justice system. With respect to the analog between abortion and the death penalty, she's right - they aren't the same thing. It's magical. But they do share a common principle - abortion decisions are predicated upon the idea that a minor has a "mature understanding of humanity" to the point where they can rationally determine what they do to their own body, and death penalty jurisprudence is apparently based on the idea that no juvinile has said understanding. If you make room for the idea that the latter is incorrect - that there are some late-teens who have such capacity - then the individuation mechanism would catch them and not others.
Second of all, the idea that we shouldn't care about world opinion since we have more liberal abortion laws than many other places is also foolish. Again, the comparison is invalid: w/r/t both abortion and the death penalty for children, it seems to me that the Supremes are taking an essentially conservative position, which is to restrain the power of the state. This is consistent, not inconsistent. Moreover, there is a major difference between protecting children from state power and "protecting" women from their own moral agency.
It's not always a "conservative" position to restrain the "state." What is happening here is the federal government using the fact that Uruguay doesn't execute minors as an argument for why Alabama is constitutionally prohibited from doing so. The "evolving standards of decency" eigth amendment jurisprudence is based on exactly this - that the founders of our nation intended for our consideration of what is just and right in our country to be based on other countries. This is mischaracterizing what Scalia actually said, which is that you cannot assume that the norms in other countries are applicable in ours. Otherwise, you would be forced in many circumstances to recognize things as being "unconstitutional" that the vast majority of Americans manifestly do not believe are wrong. Places with different histories, different customs and different are... wait for it... different. And by the way, if you want to determine what a group considers "decent," there's a very simple way to go about it: you can ask them. With some sort of process. They can even choose the people who write the laws!
As an aside, just because you choose to characterize something as "defending children from state power," that doesn't mitigate the above point that you also need to defend innocent people in society from criminals. (See? I can use "defend" to bolster my argument, too!)
Personhood is a concept. We generally agree that someone walking around on the street is a person. We are fuzzier on whether the concept applies to someone who draws their sustenance from another's blood supply and cannot breathe or maintain body temperature. When it comes to people who we can sustain with machines, we generally err--conservatively--on the side of considering them "people." When it comes to embryos and fetuses, we are collectively unsure of that distinction, and as a result the question of whether or not abortion is a "moral" issue is, in fact, an open one. That's where the complexity lies, and that is why--again, conservatively--the state needs to stay out of it.
This is where she really displays what is a basic misunderstanding of what Scalia is saying. Scalia probably believes that a fetus is a person for the purposes of murder or whatever. He's a very religious feller. But the argument he's making here is that if you can't justify a paternalistic role with respect to abortion, then how can you justify a paternalistic role on the death penalty?
The liberal wing of the court (and society) seem to consistently want to extend rights while decreasing responsibility (and the converse of responsibility, liability). Anything that lets an individual do more and more while the government can do less and less to regulate it. This balance - that between the government's ability to regulate the interactions between one another, and the ability of individuals to act as freely as possible - is a tenuous one. It's not always easy to determine where these bright lines are drawn and how they need to be enforced. But at the very least, it would facilitate if we determined some basic principles that we could agree on and went from there. This decision is a very, very classical example of the court not liking something, and forsaking its previous stated principles in order to get it. You cannot say that people are capable actors who understand the full implications of their actions when it comes to actions that are considered more "full of liberty," and then say that the state can't assume that for purposes of punishment and regulation.
Some liberal individuals treat the government like this entity that exists external to the people. It wasn't always this hulking monstrosity of extraindividual power and coercion, nor does it have to be. This machine that "progressives" have built, patchwork, from the parts they've found in the cemetaries of socialism and the interstate commerce clause may have turned into a somewhat frightening monster. Frankenstein had the same issue. But when their fear of what they created begins to haunt them, the answer isn't to panic and put up as many walls to state action as they can credibly get away with. Crippling the state and local governments while imposing what amounts to the federal view of what is "right" in the moral sense undermines the very real protections that the constitution has erected, and isn't "defending" anyone against The State - it's The State telling the people what is right and wrong through extraconstitutional action cloaked in a black robe and holding a gavel.
So no, abortion isn't the death penalty. But Scalia is right. If you're going to make your maxim individual freedom, there is a cost to that, and it's something that has to be faced, eventually.
cranked out at 5:32 PM | |
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