The Courts: Usurpation and Abdication.(Supreme Court and The Constitution)(Brief Article)

The Supreme Court issued an outrageous ruling on the death penalty, but it did not inspire much outrage. It was greeted with equanimity because the policy the Court imposed was within the bounds of reasonableness. The Court ruled that the mentally retarded could not be executed. What should cause opposition, and resistance, is not the policy that the Court imposed but the fact that it imposed it -- without constitutional warrant -- at all.

Nobody believes that the Constitution, as originally understood, bars the execution of criminals with low IQs. The Court did not bother attempting to argue that it does. Instead, it concluded that the practice of executing the retarded offended "evolving standards of decency." Its evidence for this claim was that various professional associations have condemned the practice, some state legislatures have recently prohibited it, and opinion polls have found that the public opposes it. The reasoning is tissue-thin. If a prohibition by some states is evidence that the country may be moving toward a consensus against the execution of the retarded, the fact that other states -- most states that have the death penalty, in fact -- have not prohibited it is conclusive evidence that we have not reached that consensus. Besides, reflecting the shifting opinions of the public is not the Court's job. Elected officials are at least as good at reading polls as justices are.

When the death-penalty decision came down, these officials issued no protest at the diminution of their authority. The day before, however, Steve Chabot, a Republican congressman from Ohio, introduced a bill responding to another encroachment by the Supreme Court on legislative authority. In 2000, the Court struck down bans on partial-birth abortions. (These are the abortions, you may recall, in which a fetus is partially delivered, its skull is crushed, and it is then removed from the mother's uterus.)

The Court struck down laws against partial-birth abortion for two reasons. It thought they were worded too vaguely and thus could prohibit too many abortions. Chabot's bill deals with this objection by tightening up the wording. ...