In his execrable opinion overturning Louisiana’s death penalty for child rape, Justice Kennedy made an important factual error:
When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.
This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
This is embarrassing for Justice Kennedy, but it ought to be beside the point. The whole point to federalism is that states should be able to make their own laws. What is or is not the law in other jurisdictions ought to be irrelevant. Under Kennedy, the legitimacy of our own state’s laws can depend on other states and/or the Federal government passing similar laws.
(ASIDE: It’s actually worse than that. Florida also has such a law, but it was discounted (page 13-14) because it was overturned by Florida courts. Thus, the legitimacy of your state’s laws depend not only other other states’ laws, but their judiciaries as well.)
So, what’s the threshold? How many states need to pass a law before it becomes legitimate? Evidently more than six, but is ten enough? Fifteen?
Well, perhaps we can make some good out of this. If fourteen states aren’t enough, then we can invalidate some states’ 55-mph (or lower) urban speed limits. (Hawaii’s 50 mph should definitely go!) Only five states require handgun registration; that’s definitely below threshold.
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