Dr. Paul J. Dean Christian Blog and Commentary

Judicial Activism and the Death Penalty - Part Two


Over the years, The U.S. Supreme Court has moved from interpreting the law to engaging in judicial activism. In such a move, the judicial branch now acts in a legislative fashion. Further, the court is now prone to riding roughshod over states rights and appealing to foreign law in its decisions. Such was the case last week as the high court banned states from executing murderers who committed their crimes before eighteen years of age. Serious questions are raised by such an action including questions related to states rights and how courts utilize precedents. We discussed those issues yesterday. In the second part of this article, we will discuss the nature of law and the issue of accountability.


One of the primary issues in relation to states rights and judicial precedent, has to do with the Court's appeal to foreign law in support of last week's ruling. Justice Scalia also accused the majority of picking and choosing those foreign laws which suited their own purposes and views. He accused them of imposing those laws on the American people without consent and cited a multitude of rulings in which the Court pronounced as sound laws "unique to American jurisprudence" when it suited them to do so. He then asserted, "The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions . . . To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry."

What's the harm with a little sophistry? Lots. In a pragmatic, postmodern mindset, what else could reign but sophistry? The lines are blurry and truth is relative in the contemporary philosophical paradigm. Might makes right in this context and liberty and justice for all is the sentiment of a by-gone era.

Third, the imposition of alien law raises the question of law in general. Law and legislation are two different things entirely. Law is transcendent and predates government. For the non-Christian, law is regarded as natural. For the Christian, law is grounded in a Christian worldview and contingent upon the existence of God. He is the creator and governor of His creation. For example, one of the issues in the debate concerning the display of the Ten Commandments in the public square or on government property has to do with the role the Ten Commandments have played in the formation of our nation's laws. Murder is forbidden in the commandments and is therefore against God's law. Again, our law is grounded in that higher law.


Legislation has to do with good government moving from its simple role of protecting the citizens to coercion, proactive policy, redistribution of income, etc. Albert Jay Nock has pointed out the distinction between government and the State. When government moves from its simple role of protection to this proactive stance, it has ceased to be simple government and has become the evil State.


There must be a law against murder. The role of government must be to protect its citizens. Yet this matter is distinct from the law in some sense. Government is established to protect us from predators of any size, shape, or form. But States come with a proactive intent. The law, or even pieces of it, like law against stealing or murder, should not be enforced by States because it is the law, but because government's role is to protect us from predators. In other words, there is a difference between saying that God has established government for the express purpose of enforcing his law upon a citizenry and saying that government exists to protect the citizenry from predators and those protections are grounded in God's law.


This distinction is not minor and has divided Christians into two different camps in general terms. On the one side there is the notion that the church and government are integrated authorities working together. On the other side there is the notion that the church and the government are in competing kingdoms. Those who hold to the integrated authority view may be broken down into theonomists and those who hold to the divine right of kings position, or a modified form of that position. Those who hold to the competing kingdom view may be broken down into pacifists and those who hold to a liberty conscience view. Historically, in America, it was primarily Baptists who held to a liberty of conscience view who fought for a bill of rights so as not to be persecuted by the theonomic Presbyterians and the Congregationalists. (Fortunately, these groups peacefully co-exist in America today as freedom of religion is not only grounded in a biblical worldview, but in our national consciousness). We must apply these concepts to the question of the death penalty. But first, we turn to another issue.

Fourth, there is the issue of accountability. The Court majority claimed that a national consensus against the execution of juveniles had emerged over the last fifteen years and stated that such practice was unconstitutionally cruel. No support was offered for this so-called consensus. While one might argue that the death penalty for juveniles is cruel, one searches in vain to understand how it is unconstitutionally cruel, unless one appeals to the eighth amendment which prohibits cruel and unusual punishment. The amendment reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." If that is the argument, then the death penalty itself would have to be banned by virtue of its being unconstitutionally cruel for anyone regardless of age.


Other rationale was given for the new ruling. Justice Anthony Kennedy said that many juveniles lack the maturity and intellectual development needed to understand the ramifications of their actions. He cited eighteen as the age at which society draws the line between childhood and adulthood. Therefore, death penalty eligibility ought to lie on the adult side of that line. I agree that maturity and intellect are not fully developed by eighteen in most individuals. However, are we expected to believe that the average seventeen year old does not understand the ramifications of murder? I would argue that most ten year olds understand such. My fifteen year old is not mature enough to vote responsibly, make decisions regarding his finances or his future, nor is he mature enough to do a lot of other things. But, he knows what murder is and its concomitant seriousness. My eleven year old is not mature enough to drive, but she knows what murder is just the same. My two year old does not know what murder is. To hold her accountable for murder at her age would be unjust. But, a big difference exists between her and those seventy-two murderers whose death sentences have been overturned. Society does not draw lines. The age is arbitrary based on a policy.


At the same time, I am not advocating the execution of twelve year olds. Christopher Pittman, a twelve year old from my state, murdered his grandparents with a pump-action shotgun, torched the house to cover his crime, and drove away in the family car. He told the police they deserved it. He was convicted and sentenced to thirty years in prison. That is probably an appropriate penalty in this case. Of course, a host of issues are involved in each individual case. A case-by-case evaluation is warranted in crimes of this nature.


But the real issue is accountability. The Scriptures tell us that humans are born dead in sin and with a sinful nature. Children are morally accountable for their actions and they do evil things. Again, a five year old does not have the mental capacity that an eighteen year old has. But children, who for example, are twelve, thirteen, and seventeen years old, understand that it's wrong to kill someone. According to the Scriptures, that kind of information is written in their hearts (Romans 1-2).


We live in a culture of victimization and non-responsibility. No one wants to take responsibility for his actions and no one wants to hold anyone accountable. In a culture where a San Francisco city supervisor who murdered a fellow supervisor and Mayor  George Moscone can claim that too much junk food made him do it; in a culture where a jury bought the "Twinkie Defense" and returned a verdict of voluntary manslaughter as opposed to murder; in a culture where a jury can return such based on diminished mental capacity because of junk food; we should not be surprised when persons claim that seventeen year olds don't have the mental capacity to appreciate the ramifications of murder.

We are on a slippery slope. Firist it's Twinkies and then it's Zoloft (as in the Pittman case). Will somone tell us next that they are not responsible for a cold-blooded shooting because they simply had too much to drink and their anger got the best of them? God holds us accountable for our actions regardless of our genetic makeup, formative environment, or chemical dependence. So too should we.

[Part Three Tomorrow, the Death Penalty]

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