Tuesday’s Supreme Court ruling represents another victory for Progressive liberalism’s “post-constitutionalism.” The case, Moore v. Texas, affirmed prior holdings that mentally challenged individuals cannot be subjected to the death penalty without violating the Eighth Amendment’s ban on “cruel and unusual punishment.” The case involved a death penalty case from Texas involving a conviction for murder during a failed robbery.
Bobby James Moore was convicted of capital murder and sentenced to death. The crime was committed in April, 1980 and appeals have been bouncing around in the courts ever since. Texas courts refused Moore’s pleas that he was mentally disabled and therefore ineligible for the death penalty under the Court’s previous Eighth Amendment rulings; his challenges were finally successful, some 37 years later, as the Court articulated new standards for designating what qualified as mentally challenged.
Texas, the Court held, used standards that were too strict, relying mainly on Moore’s IQ test scores, which were above the 70 cut off point for determining mental disability. The Court held, however, that that the State did not take into account the standard error measurement which is “a reflection of the inherent imprecision of the test.” In Moore’s case the standard error of measurement yielded a range of 69-79, which would put the lower range score of 69 below the cut off point. In any case, the Court warned, the IQ evidence is not sufficient. Texas courts also erred in concluding that Moore didn’t suffer ”significant adaptive functioning deficits,” including childhood abuse and suffering, academic failure, for which he was constantly mocked by his peers, ”racially motivated harassment and violence at school,” “drug abuse and absenteeism,” among a host of other behaviors. These “count in the medical community as ‘risk factors’ for intellectual disability.” So, even though Moore’s IQ might not qualify him as mentally disabled, when “risk factors” are added to the calculus, the case for mental disability is greatly enhanced. The State of Texas did not adhere to the medical community’s consensus in evaluating how far these risk factors contribute to intellectual incapacity. As the Supreme Court said in a previous case, mental disability is a condition, not a number.
The dissent vigorously charged that the majority opinion, written by Justice Ruth Bader Ginsburg, had completely abdicated its judicial responsibilities by allowing medical standards of disability to substitute for constitutional analysis. As Chief Justice Roberts wrote for the dissent (joined by Justices Thomas and Alito), the majority “crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability.” The Court’ decision,” the Chief Justice complains, “constitutionalizes rules for which there is not even clinical consensus—a consequence that will often arise from the approach charted by the Court today.” The Chief Justice reminds the Court that its only task “should [be to] determine the content of the Eighth Amendment.”
Evolving Standards of Human Decency
Chief Justice Earl Warren set the tone for Eighth Amendment jurisprudence when he wrote in 1958 that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In 1985 Justice William Brennan, echoed the sentiments of Warren, when he gave a speech—now widely celebrated by Progressive constitutionalists—in which he rejected the idea of original intent jurisprudence as “facile historicism.” Rather, he said, “the Constitution is a sublime oration on the dignity of man,” and since “the demands of human dignity will never cease to evolve,” the Constitution itself must continually evolve to meet those demands—demands that it has been entrusted to the courts to articulate.
Justice Brennan, however, singled out one part of the Constitution that does not evolve. There is, he said, one “fixed and immutable” demand of “human dignity”—that “capital punishment is under all circumstances cruel and unusual punishment prohibited by Eighth and Fourteenth Amendments.” Curiously enough, the one “fixed and immutable” demand in the universe of otherwise constantly evolving demands flies in the face of the plain language of the Constitution. The Fifth Amendment, of course, was ratified contemporaneously with the Eighth. The Fifth Amendment not only refers to “capital or otherwise infamous crime,” but also provides that no person shall “be deprived of life, liberty, or property, without due process of law.” The clear meaning of this latter phrase is that with due process of law persons can be deprived of life. The Eighth Amendment, therefore, cannot possibly be read to include the death penalty as “cruel and unusual punishment.”
Since the only “immutable” point in Justice Brennan’s universe of constitutionalism contradicts the clear and unequivocal language of the Constitution, what is “immutable” has no more constitutional standing that what is constantly evolving. Justice Brennan’s constitutionalism—no less than Chief Justice Warren’s—is an illusion, or to use current Progressive-liberal terms, it is “post-constitutional.” Constantly evolving standards of human dignity can never serve as the foundation of yconstitutional principles or constitutional jurisprudence.
Justice Ginsburg, quoting the 2014 Supreme Court case Hall v. Florida, affirmed that “the Eighth Amendment prohibits ‘cruel and unusual punishments,’ and ‘reaffirms the duty of the government to respect the dignity of all persons.” Thus the Eighth Amendment contains an affirmative duty to respect the human dignity of all persons, regardless of the crimes which they have committed. What are the constitutional obligations owed to such persons? Certainly due process of law is a constitutional guarantee of all accused of crime, and once convicted there is a constitutional guarantee that all punishment for crime shall not be “cruel and unusual.” What in the Eighth Amendment protects respect for “human dignity?” Is according respect for the human dignity of those who have demonstrated by their actions that they refuse to respect the dignity of others a constitutional command? Honoring those who refuse—by murder or other acts—to recognize the dignity others would rather seem to dishonor the very idea of human dignity itself.
To honor the human dignity of those who refuse to honor the human dignity of others is an absurdity than destroys the very concept of human dignity. Civil society is grounded in the mutual recognition of the human dignity of fellow citizens. To use the language of the Declaration: all men are created equal and are endowed by their Creator with inalienable rights, life, liberty and the pursuit of happiness. Those who fail to honor the obligation to recognize the humanity of others—their rights and liberties—have voluntarily withdrawn from the social compact that constitutes civil society. Once they have demonstrated they no longer have obligations to society, society no longer has obligations to them, except that American society has pledged always to extend due process rights and protection from cruel and unusual punishment. If the Constitution stands for the ultimate human dignity of the individual, as Brennan insisted, then according honor to those who refuse—by their criminal acts—to recognize the dignity of others would simply convert the Constitution into a “suicide pact.”
A true regime of human dignity honors those who demonstrate a regard for human dignity by honoring the laws and the Constitution and dishonors those who are either incapable or unwilling to recognize the human dignity or human rights of others. The test of humanity must surely be the mutual recognition of human dignity. The death penalty is not, as Progressive liberalism contends, an affront to human dignity; rather it is a spectacular affirmation of human dignity. Civil society cannot tolerate those who openly violate the human dignity of others.
Eighth Amendment Prohibits Cruel and Unusual Punishment, Not “Excessive Punishment”
In previous Eighth Amendment cases, the Court has maintained that the Amendment prohibits “excessive punishment.” The Court drew this inference from the fact that the Amendment prohibits “excessive bail” and “excessive fines.” The plain language of the Eighth Amendment prohibits, not excessive punishment, but “cruel and unusual punishments.” The doctrine that has developed from this creative reading of the Constitution is that punishment must be proportional to the crime. In the case of the mentally impaired, since their moral culpability is said to be reduced, their punishment must be proportional to their reduced culpability. Justice Antonin Scalia, of course, always protested this bowdlerization of the Constitution’s text. There is no proportionality requirement demanded by the plain language of the Eighth Amendment, and no indication that any of the framers would have regarded a failure to adopt a lesser standard of moral culpability as a violation of the “cruel and unusual punishment” clause. Those who are unwilling and those who are incapable of meeting the obligations of civil society are equally culpable when it is a matter of capital crimes.
Is there a consensus in the country that the mentally defective should not suffer the death penalty? The majority opinion argues that such a consensus exists and must be recognized as part of the “evolving standards that mark the progress of a maturing society.” How did the provisions of the Bill of Rights become dependent on opinion polls? We used to celebrate Justice Robert Jackson’s admonition that the provisions of the Bill of Rights were ”beyond the reach of majorities.” In fact, Justice Roberts argued that the rights enshrined in the Bill of Rights were fixed and permanent. He would not have entertained the idea that the Bill of Rights was evolving toward greater tolerance of crime and criminals. Giving sanctuary to criminals seems to be the current evolutionary meme dominating Progressive liberalism, and the Supreme Court has learned what role it must play in this narrative.