Thursday, June 26, 2008


In the past week the US Supreme Court has issued rulings in two controversial and closely-followed cases by the narrowest of margins: five votes to four. In the first, the Court told the State of Louisiana that it could not impose the death penalty on those convicted of raping children. In the second, it told the District of Columbia that it could not ban firearms.

Is there anyone in the United States who agrees with both of them?

Most who would support the rights of law-abiding DC citizens to own guns (and honor the Second Amendment) would also support the right of a state to execute criminals (and honor the Fifth Amendment). Most who oppose the death penalty in general, and as it is applied to rapists in particular, would also support gun control. Thus those who were dismayed by the death penalty case found themselves rejoicing in the gun rights case, and vice versa.

The very fact that so many Supreme Court cases are being decided by one vote is an indication not that the best legal minds in the US disagree about the law, but that we are permitting the Court to decide issues best left to the States and to Congress. In essence, one vote has determined whether citizens may continue to exercise a right that has been enjoyed for 230 years, and one vote has determined that 4.5 million Cajuns may not put to death a criminal that they have democratically decided deserves that punishment.

The Framers and the Constitution they devised were not nearly as schizophrenic as the Court has become in passing on them.

It is decisions like these -- groups of inconsistent decisions -- that lead one to the conclusion that the Court is no longer the Judicial Branch, but has become the third house of Congress.

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