The Supreme Court released its decision in Kennedy v. Louisiana today. The majority opinion (written by Justice Kennedy, who was joined by the four other liberal justices) stated that Louisiana cannot constitutionally execute a child rapist (even in the case of aggravated rape), as that would be “cruel and unusual punishment.”

Justice Alito, who was joined by CJ Roberts, Justice Thomas, and Justice Scalia, wrote a spirited, tough, and intellectual dissent.

Very quick analysis:

• When the Eighth Amendment was written, rape was a capital crime. If the Framers meant to permit only the death penalty for murder, they would have done so.
• The Fifth Amendment mentions “capital crime” once, and mentions “depriv[ation] of life” twice. Obviously, the Constitution clearly contemplates a legal death penalty.
• The liberals on the Supreme Court use various tests to show that their policy decisions are correct, with little regard for the underlying logic, consistency, or appropriateness of using those tests. Six states (of the 36 that have the death penalty) permit the execution of child rapists. States cannot, as per the 1977 Coker decision, execute those who rape adult women. It is illogical to declare that a substantial minority constitutes something so unusual as to be outlawed. Furthermore, states have begun to consider expanding the death penalty to encompass crimes that do not involve murder, which would show that our all-important “evolving standards of decency” are moving in the direction of greater protection of our children and a greater awareness of the horrors of rape. (Oddly, liberals have just written a Supreme Court opinion which is the jurisprudential equivalent of “If rape is inevitable, lie back and enjoy it.”)
• States are meant to be laboratories of experimentation. Policy questions - and empirical questions - about the validity of capital punishment for heinous crimes that do not result in death, or about the deterrent effect of capital punishment - are those best left to the states. We cannot know whether or not the death penalty for child rape will have the desired effect of reducing child molestation, or will have the undesired effect of ensuring that the perpetrator kills the child. We can never find out, however, until such laws are put into place.
• Embezzlers, drug users, robbers, prostitutes, johns, and arsonists all believe that child rape is such a horrible crime that it is worthy of death. If those among us who are the least likely to view the strong arm of the law as valid also cry for the strongest possible punishment for this crime, a very clear, universal revulsion of this crime has been established.
• It is legal to use deadly force to protect yourself against both murder and rape. While there is always a fundamental distinction between individual and state action, it is ridiculous to state that a governmental body may not impose the death penalty upon rapists, as such is “cruel and unusual,” but that same governmental body ought to allow individuals to protect themselves from rape by using deadly force.
• As an aside: conservatives ought to bring this up when told that we only care about children who are in the womb.