Lily on Roper, response 2

Lily on Roper, response 2

In regard to your point that it is the Supreme Court's job to take on the moral questions head on: I definitely agree that putting bedrock constitutional principles into action in a constructive way is a proper role for the judiciary. I can see your point that it would be more useful to our nation for the Supreme Court to have a discussion entitled, "What is cruel and unusual punishment?" than one entitled, "How can we decide what most Americans think about cruel and unusual punishment?"

In the Supreme Court's defense, though, from a purely pragmatic standpoint I think it is at least arguable that we are likely to get results that more adequately reflect the prevailing nationwide view, if we play the Supreme Court game and take a poll of state legislatures. The essence of the counter-majoritarian difficulty is that 50 state legislatures (composed of scores of elected public officials who are accountable to their constituents every few years) are going to be a more representative slice of the American mood than ANY group of nine Americans, even nine brilliant, highly educated professional jurists whose own research is supported and enhanced by law clerks gleaned from the ranks of the nation's top law school graduates.

But, it might be objected, just because the majority of state legislatures would come out one way or the other on a given issue, doesn't mean that they are correct about that issue, from the standpoint of objective truth. What about racial issues like segregation and slavery, which have torn the nation apart for generations? On such deeply moral issues, history has taught us that we cannot afford to wait for a "national consensus" that might never come, or come too late.

How do we reconcile that point with the basic democratic principle upon which our government is built: that the majority wins? Do we need to modify that principle to say, the majority wins except when it shouldn't? But then, how do we know when it shouldn't, exactly? More specifically, is the juvenile death penalty a case where the majority should win, or where it shouldn't?