Professor Ralph Rossum has an editorial in the Investor’s Business Daily on the Supreme Court’s recent decision against imposing the death penalty for the rape of a child. Professor Rossum argues that it is Congress that should make decisions on issues of morality like this.
First, who better can identify and express a contemporary national consensus: Five unelected justices or the 535 members of the U.S. Congress (whose 435 House members are elected every two years and 100 senators every six years)?
Before answering, consider that the five justices who joined the majority opinion have been ensconced in the Marble Palace for an average of 20 years each (they range from Stevens, 33 years, to Breyer, 14 years). Consider also that since they have an average age of 74, they are out of touch with how most Americans live. Stevens is 88, Ginsburg 75, Kennedy 72, Breyer 70, Souter 69.
Second, does a vote of 390-39 in the House on May 24, 2005, approving language in Public Law 109-163 authorizing military courts-martial to impose the death penalty for the rape of a child, and passage of the same language in the Senate by unanimous consent on Nov. 15, 2005, suggest the presence of a contemporary and overwhelming national “consensus”?