Owens on Roper, II

Owens Responds

As Kennedy writes, at the center of this case is human dignity: "By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons." Building on that, I think the 8th amendment is not simply a protection for the criminal. Is is, rather, a statement on our society, our compassion, and our collective understandings of punishment and revenge. The Constitution, then, is more than a blurry collection of laws that Justices can use to decide conflicts between individuals and branches of government. It is nothing less than the text of our National community. When we think about the Constitution, and our reading of the text, we necessarily think of who we are as a people. Thus, for those Justices that have been appointed and Senate-approved the extraordinary task of life tenure, so that they can approach this document with the purest frame of mind, I most certainly expect them to think (actively!) about what the Constitution means for us as a people.

The 8th amendment is a perfect example, in that it recites only "cruel and unusual" without particulars. There it is, in the Constitution, a statement about what we, as Americans, accept. And yet, the Constitution leaves blank the obvious question...well, what do we expect/tolerate? One could argue that is for legislators to decide, and to a great extent it is. But this is Constitutional law; thus, it is a brick wall surpassed by legislators only with another amendment. And since Marbury, we have accepted that Justices, largely, guard those brick walls. And, dropping that debate for the moment, it is simply a truth that this question--what is cruel and unusual--falls into the hands of the Supreme Court Justices. And like we trust our President with issues of whom we will drop bombs on, as a people, we trust the Court with this task.

Returning to my conviction that the Constitution is the most crucial piece of our Americanism, and to our National civic duty, I want very much for Justices to take the questions offered them head on--and not leave us to search dusty library religious/philosophy shelves. In my mind, discussing life/death/punishment is worthless if not given the civic meaning of the 8th amendment. What have I accomplished in deciding that I oppose the death penalty? Rather, I will argue that the 8th amendment of my county's founding document stands with me. I might be wrong, but we shall see.

Finally, my disappointment with the decision: I wish they hadn't centered the logic on the criminal's culpability. From the above, you can tell I wish the discussion was focused on us, outside the courtroom. Again, the 8th amendment is about Americans' values, not the criminal.