Section 1: Arbitrary Standards of Morality

The majority opinion in Kennedy v. Louisiana relies on “evolving standards of decency,” which appeals to those who adhere to moral relativism or moral non-realism. This framework suggests that moral truths shift along with societal attitudes, finding supporters among those who deny the existence of objective moral standards. Robust philosophical arguments challenge this perspective. The “companions in guilt” argument, for instance, posits that dismissing objective moral truths leads to broader skepticism that undermines other normative domains such as epistemology or rationality. If one denies the reality of moral truths, consistency would require doubting the truth claims made in logical or epistemological contexts as well. This argument exposes a potential contradiction for those who accept practical reasons or truth claims while rejecting moral realism, suggesting that moral truths are indeed objective and should not be so readily dismissed.

Adding to this critique, philosopher John Gray’s skepticism of humanism further undermines the Court’s reliance on evolving moral standards. Gray argues that humanism—particularly the secular variant often used to justify legal and ethical progress—wrongly assumes a linear, invariably forward-moving trajectory of moral improvement. He points out that human values and ethics do not necessarily improve over time and can indeed regress, as evidenced by various historical episodes. This criticism casts doubt on the premise that contemporary society is more enlightened than past generations, questioning the very foundation of decisions predicated on presumed moral advancement.

Together, these philosophical critiques suggest that the majority’s approach in Kennedy v. Louisiana may not only be arbitrary but potentially misguided. By grounding constitutional interpretation in such unstable and subjective foundations, the Court risks decisions that are unmoored from enduring principles, leading to legal outcomes driven by transient, possibly erroneous moral judgments.

Section 2: The Problem with Consensus

The Supreme Court’s decision in Kennedy v. Louisiana relies heavily on the perceived societal consensus against the death penalty for child rape. This approach raises critical questions about the role of consensus in constitutional law and challenges the stability of legal principles founded on more than mere majority opinion.

The Perils of Consensus-Based Justice

By grounding constitutional judgments in societal consensus, the Court risks equating constitutional legality with popularity, potentially blurring the lines between a principled republic and mob rule. This reliance on consensus suggests that any act might be legalized or outlawed based solely on popular support, sidelining inherent moral and ethical principles that should underpin the law. Such a stance could set dangerous precedents where rights and wrongs are determined by the majority’s will, rather than enduring principles of justice and equality.

One must question why a consensus is necessary for such judicial determinations. This approach implies that any act could potentially be legalized or outlawed based purely on popular support, disregarding inherent moral or ethical principles that should underpin the law. Such a stance could lead to dangerous precedents where rights and wrongs are determined merely by the majority’s will at any given time, rather than by enduring principles of justice and equality.

Moreover, the idea that everything is based on consensus leads to a self-referential paradox: is there a consensus that all legal and moral decisions should be based on consensus? If not, the foundation for using consensus as a critical legal standard collapses under its own weight. The notion that all legal and moral decisions should be based on consensus leads to a self-referential paradox: if there is no consensus that legal and moral decisions should be consensus-driven, the foundation for using consensus as a legal standard collapses. Furthermore, the reliance on consensus raises significant questions about its temporal and geographical scope. If consensus is taken to mean the current opinion of merely US citizens, why should this be deemed sufficient when much of American law is derived from British common law? Is the current generation of Americans truly representative of historical values, or does this approach arbitrarily privilege contemporary viewpoints over a more enduring legal and moral philosophy? Moreover, why restrict the consensus to the United States alone? If global considerations and the universality of human rights are to be acknowledged, shouldn’t the standards among the entire planet be considered? The choice of which consensus to follow often appears to be as arbitrary as the group representing it, frequently aligning with those who already agree with the chosen perspective. This approach not only undermines the stability and universality of legal standards but also risks transforming the law into a reflection of transient majority opinions rather than a body of consistent and objective principles.

Disparity in Death Penalty Legislation

The patchwork application of the death penalty across the United States, with states like California reducing its use to a mere formality, contrasts sharply with others that actively enforce it. This inconsistency underscores a fundamental flaw in using societal consensus as a measure of constitutionality. If fragmented application suggests nationwide ambivalence, the argument that the death penalty is unconstitutional on substantive grounds becomes tenuous.

It’s worth noting that many Americans subscribe to consequentialism, believing that the outcomes of actions determine their moral value. Yet, even within this framework, not all decisions are driven purely by majority opinion; some ethical truths, such as the inherent worth of human life, are held to be self-evident, requiring no consensus to validate their truth. (Not that I agree with such)

Supporting the decisions in Kennedy and similar cases, while accepting the concept of capital punishment, presents an inherent contradiction. If opposition to the death penalty for child rape is justified by a lack of consensus for such severe measures, then logically, the ongoing use and endorsement of the death penalty for any crime is questionable under the same criteria.

Implications for Judicial Coherence and Trust

This examination reveals that the reliance on societal consensus for constitutional rulings is fraught with complications, leading to potentially inconsistent decisions that may not align with public sentiment or the fundamental legal frameworks of states and the nation. Arguing that the death penalty itself remains constitutional while specific applications are not, based on fluctuating consensus, suggests a selective and potentially biased interpretation of the law.

Section 3: Circular Reasoning and the Lack of Substantive Justification

The majority’s reasoning in Kennedy v. Louisiana is fundamentally circular and lacks substantive justification. The Court concludes that the death penalty for child rape is unconstitutional because it is “cruel and unusual,” deemed so primarily because it is seen as “disproportionate.” Yet, the reasoning for its disproportionality hinges on the assertion that it is cruel and unusual. This tautological argument fails to provide a solid foundation for the decision, relying instead on self-referential logic that does not advance a reasoned analysis.

Moreover, the majority’s reliance on evolving standards, as seen in cases like Roper v. Simmons, does not sufficiently address this circularity. While Roper differentiated between juvenile offenders and adults based on psychological and developmental factors, thereby providing a concrete basis for its conclusions, Kennedy does not offer similar substantiation. Instead, it presumes without rigorous evidence that the nature of the crime of child rape does not warrant the severe response of capital punishment.

To illustrate, consider the analogy of the car driver, which was touched upon in previous discussions: A driver who unintentionally causes a fatal accident may be less morally culpable than a premeditated and brutal child rapist. Yet, under the current reasoning, the punishment for the rapist is capped severely below that of accidental, albeit lethal, outcomes in other contexts. This disparity highlights the inconsistency in evaluating moral depravity and the consequences of different actions under the law.

The Court’s decision seems to rest more on the philosophical musings of the justices rather than on a rigorous examination of legal principles or societal norms. It raises the question: What beyond the justices’ own reflections supports the notion that capital punishment for child rape is inherently disproportionate? Without more concrete evidence or reasoning, the decision appears to be shaped more by the ideological leanings of the justices than by a balanced interpretation of law and justice.

Section 4: Inconsistency Among States and Judicial Overreach

The inconsistency in the application of the death penalty across various states is a significant point of contention. While some states actively impose the death penalty for murderers, others have abolished it altogether or avoid its use even for the most heinous crimes. This discrepancy highlights a fundamental inconsistency in how justice is administered across the United States, raising questions about the uniformity of legal standards and the principles that underpin them.

The majority’s decision in Kennedy v. Louisiana seems to point towards a broader direction of abolition, suggesting that the death penalty is inherently cruel and unusual in more contexts than previously acknowledged. However, this stance not only challenges the decisions made by individual states to uphold the death penalty but also contradicts foundational national documents that do not expressly prohibit such measures. Furthermore, from a Christian perspective, the use of the death penalty can be defended scripturally. Genesis 9:6, for example, argues for the law of retribution, “Whoever sheds the blood of man, by man shall his blood be shed,” which has historically supported the notion of capital punishment in Christian doctrine.

The affirmation by the Court in Kennedy that the death penalty is disproportionately severe for crimes like child rape—regardless of the specifics of the case—proves too strong a statement. It risks not only undermining the legislative autonomy of states that choose to implement the death penalty according to their own standards but also ignores broader theological and ethical considerations that justify its use.

This push toward abolition via judicial means oversteps the traditional boundaries of judicial interpretation, venturing into legislative territory. It suggests a preference for a particular moral and legal philosophy over a balanced consideration of existing laws, state rights, and diverse philosophical and religious views. Such judicial activism not only erodes the federalist structure that allows states to function as individual laboratories of democracy but also disregards significant segments of the population who support the death penalty either for reasons of justice, deterrence, or moral retribution.

Section 5: Challenging the Scope of Coker v. Georgia and Advocating for Severe Punishments for All Rape Cases

While Coker v. Georgia concluded that the death penalty for the rape of an adult woman was disproportionate and thus unconstitutional, this decision and its reasoning merit rigorous reconsideration. The ruling significantly influences subsequent legal interpretations, as seen in Kennedy v. Louisiana, but it also sets a precedent that may unduly limit justice for victims of severe crimes.

The principle of proportionality, as applied in Coker, should not strictly hinge on the physical outcome of the crime (such as death) but rather consider the broader context of the crime’s impact on the victim. Rape, whether of an adult or a child, often leaves profound psychological, emotional, and sometimes physical scars, which can be as debilitating as the effects of other violent crimes traditionally punishable by death. The severity and enduring impact of rape call into question the appropriateness of excluding the death penalty or other severe punishments categorically.

Revisiting Proportionality: The notion that the death penalty is inherently disproportionate for rape underestimates the gravity and lifelong consequences of such an act. It’s imperative to challenge the narrow interpretation of proportionality that restricts severe punishments only to cases involving death. Justice demands that punishments be sufficiently severe to reflect the heinous nature of the crime, deter future offenses, and acknowledge the profound harm inflicted upon the victim.

Legal and Moral Implications: Excluding the death penalty categorically for rape cases fails to consider the varied and significant impacts these crimes have on individuals and communities. This approach risks perpetuating a perception that the legal system does not fully recognize or validate the severity of the trauma experienced by rape survivors. Furthermore, it might diminish the potential deterrent effects of capital punishment for crimes that, while not resulting in death, profoundly disrupt and damage lives.

Broadening the Legal Perspective: It is crucial for the judiciary to broaden its perspective and reconsider the application of severe penalties for all forms of rape, aligning legal outcomes more closely with the principles of justice and societal protection. This reconsideration should include a thorough review of empirical evidence, societal attitudes, and the ethical implications of assigning punishments that truly correspond to the moral outrage such crimes warrant.

Evaluating the Inconsistencies in Death Penalty Applications

In the American legal system, the death penalty is applicable in various cases that do not necessarily result in the direct loss of life, such as treason, espionage, and being an accomplice to murder (e.g., Charles Manson, getaway drivers). This acceptance raises significant questions when juxtaposed against the exclusion of severe sexual crimes, like child rape or the rape of adults, from capital punishment eligibility.

The justification for imposing the death penalty in cases of treason and espionage often hinges on the perceived threat these actions pose to national security and the overall societal order. Similarly, accomplices to murder are seen as integral to the commission of the crime, sharing the intent and contributing to the lethal outcome. If the legal system upholds the death penalty for these crimes, under the rationale of protecting societal welfare and deterring grave offenses, one must question why the same rationale does not uniformly apply to severe sexual crimes.

Sexual crimes like rape can have profoundly destructive effects on victims, leading to long-term psychological, emotional, and sometimes physical damage. These impacts are not only devastating at the individual level but also perpetuate a broader societal harm by undermining public safety and trust. If the rationale for capital punishment is the protection of society and the deterrence of severe crimes, excluding severe sexual crimes from this category seems inconsistent.

The potential reasons for this exclusion could be critically examined for logical consistency. One might argue that sexual crimes, while severe, do not directly threaten the life of the victim in the immediate sense that crimes like murder do. However, if we accept this logic, we must then confront the possibility that our criteria for what constitutes a capital offense are either arbitrary or ad hoc. For example, if the criterion is the direct threat to life, why are espionage and certain forms of treason, which might not immediately endanger life, considered capital offenses?

This discrepancy suggests that the reasons for excluding severe sexual crimes from death penalty eligibility may not withstand scrutiny under their own criteria. They appear arbitrary and may lead to skepticism about the fairness and consistency of our legal standards. By not applying a uniform criterion for the imposition of the death penalty, the legal system risks being seen as inconsistent, where similar categories of harm are judged by seemingly subjective standards.