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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, October 08, 2008 ::
    The Court's refusal to reconsider Kennedy v. Louisiana in light of the overlooked death penalty for rape in the UCMJ could be seen as part of the Court's overall "the military is different" jurisprudence; cf. Rostker v. Goldberg, Goldman v. Weinberger.

    Apart from that, however, it's just more of "The Constitution evolves the way we feel it should." According to Scotusblog, Louisiana's final filing in the request for rehearing "cautioned the Justices not to make the issue depend solely upon the Court’s own constitutional perceptions, arguing that Congress and the state legislatures are entitled to their say, too." Not a chance, natch:
    The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context.
    But not, apparently, the laws of the actual state whose statute is before the Court: that must yield to a Court-determined consensus of other states' laws.

    Justice Scalia:
    I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. [T]he proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.
    For myself, I am by no means sure I would support the death penalty in any circumstances as a state or national legislator. But I am very sure that the Supreme Court was not meant to be either a state or a national legislator, though it has appointed itself both.

    :: David M. Wagner 10:58 AM [+] ::

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