Six justices do not make 'national consensus'

Union Leader ^ | June 27 2002 | Jonah Goldberg

[2Trievers]

LAST WEEK THE Supreme Court decreed that executing the retarded violates the Constitution. It was a patently awful decision, revealing how confused America is about both the Constitution and the retarded.

Let’s take the Constitution first. The court’s decision was met with almost unrestrained glee from the nation’s editorial pages. “The U.S. Supreme Court has made a remarkable — and overdue — 180-degree turn,” editorialized the San Francisco Chronicle. “If ever a public issue called for a reversal, execution of the mentally retarded is one.”

“The 6-3 decision will save the lives of dozens of convicted murderers and move the United States out of the shadows and into the sunlight of world opinion,” noted the St. Louis Post Dispatch.

The New York Times commended the court for “inject(ing) a limited but wholly welcome measure of human decency into the nation’s use of the death penalty.”

The court majority in this case simply decided that Americans don’t like executing retarded people and decreed that we must stop. Its evidence for what it calls a “national consensus” on the issue: opinion polls, the laws of foreign countries, and the views of members of the “world community.” It also cited the fact that 30 states don’t permit the execution of the retarded.

Now, it should go without saying that the opinions and laws of foreigners don’t mean Jack when it comes to interpreting our Constitution. As for the majority of 30 states not permitting the execution of the retarded, that number includes 12 states that don’t permit execution of any kind. So we’re really talking about 18 out of 38 death-penalty states that prohibit the execution of the mentally retarded.

But even if all Americans agree that executing the retarded is bad, that doesn’t mean it’s unconstitutional. The U.S. Constitution was not intended to be the protector of all things good. Something can be unfair and even illegal but still be perfectly constitutional. Why is this so hard to understand?

If the country wants to ban executions of the retarded — or of anybody else — it can do so at the ballot box through referenda or via elected representatives. If a national consensus exists, it will be reflected in the only polls that matter, the ones with voting booths. Building such a consensus democratically would help persuade citizens while allowing the machinery of justice to work out the details.

A diktat from Washington has precisely the opposite effect, by creating chaos for blindsided prosecutors and creating the potential for a backlash when local communities realize they have no say in the issue.

Now, what about the retarded? If liberal editorialists want to say that retarded people cannot be held accountable for their actions, fine. But let’s be consistent about this standard. The retarded have voting rights. They can marry, have children and in some cases drive cars.

In the recent film “I Am Sam,” about a retarded man seeking to maintain sole custody of his daughter, we’re told “love is all you need” to raise a child. Never mind this is the opposite advice we send non-retarded teenagers in the hopes of keeping them from having babies. To these boys and girls we talk about how you need a lot more than love. We tell them they need skills, maturity, a husband and an education.

How can we on the one hand applaud giving major responsibilities to the retarded but on the other hand recoil in horror at the suggestion we hold them responsible when they fail? Not to be too indelicate, but what if at the end of “I Am Sam” Sam horribly murdered his daughter? Would he be responsible for his actions? Or are the retarded only responsible for their nice actions but not their bad ones?

Indeed, this calls into question the entire issue of intelligence generally. Does it matter? The New York Times often says no. It regularly dismisses the notion that IQ tests measure anything significant at all. The Times and other bastions of enlightened thinking regularly knock the SATs as somehow anachronistic and irrelevant because, as we all know, “there are many different kinds of intelligence.”

But when the topic switches to executing people, all of the sudden there’s only one kind of intelligence — the kind that’s measured on IQ tests. Most states say that someone is retarded if he or she scores below 70 or 65 on an IQ test. Well, does IQ only measure the stupidity or intelligence of murderers on death row? Or is it, perhaps, useful in other spheres?

Someone needs to explain to me why, if there’s nothing wrong with being retarded when it comes to, say, parenthood and voting, it’s OK that the retarded are disproportionately exempt from the death penalty. Maybe the Supreme Court can seek some guidance from the world community for an answer to that question too.

— Jonah Goldberg is the editor of National Review Online.