What you don't know about the death penalty

On Friday, a federal judge declared California's method of execution unconstitutional. I'll spare you the gruesome and hideous details. Let's just say that U.S. District Judge Jeremy Fogel's 17-page ruling outlined several problems with the state's procedures for lethal injections. Until the problems are fixed to his satisfaction, the judge said, executions in California violate the 8th Amendment's prohibition of cruel and unusual punishment.

Judge Fogel's ruling is the latest in a series of federal court rulings over the last few decades challenging state death penalties in one way or another.

What you don't know is that the people of the United States never agreed to allow the federal courts to oversee state executions. What you don't know (unless you've read The 37th Amendment or "How the First Amendment Came to Protect Topless Dancing"), is that the Bill of Rights, including the 8th Amendment, was never intended to apply to the states at all.

Even with the 1868 ratification of the Fourteenth Amendment, which declared that no state could deny due process of law to any person, it was understood and agreed that this did not mean the Bill of Rights restricted the states in any way.

Over the next sixty years, many people brought cases before the U.S. Supreme Court asking the justices to rule that the states were obligated to provide criminal defendants with jury trials, attorneys, the right to remain silent, and a list of other rights spelled out in the first eight amendments to the Constitution. They were turned down every time.

The first eight amendments "were not intended to and did not have any effect upon the powers of the respective states," the Supreme Court ruled in 1900, adding, "This has been many times decided."

Obviously, everything has changed. But it wasn't changed with the consent of the people of the United States. It was changed, gradually and slowly and in bits and pieces, by the U.S. Supreme Court.

In 1925, the justices began to select small pieces of the Bill of Rights that they thought were fundamental to the idea of "due process of law." They decided that no state would be allowed to infringe a fundamental right unless state officials could somehow justify the need for the law. States would be required to show a compelling reason, not just a rational reason, that the law was necessary to achieve a permissible purpose.

By the 1970s, state officials were in federal court on a full-time basis, trying to justify their laws and procedures on panhandling, nude dancing, police searches, parade permits, confessions, abortions, sodomy, religious displays, school suspensions and the death penalty.

The question here is not whether the judges made the right decisions. The question is: Who decides?

State officials are accountable to the voters and bound by their state constitutions. Federal judges are appointed for life, and though theoretically bound by the Constitution, law and precedent, the current fashion in judicial interpretation leads many of them to strive for a wise policy decision instead of adhering strictly to the constitutional limits of their power.

The revered model for these judges is the 1954 Brown v. Board of Education decision, which ordered the desegregation of state public schools. The Supreme Court said racial segregation was impermissible under the Fourteenth Amendment, even though the men who wrote and ratified the Fourteenth Amendment said plainly at the time that nothing in the amendment touched the ongoing practice of racial segregation in the schools.

Brown v. Board of Education gave and still gives judicial "activism" the rosy glow of moral rectitude. At the same time, it gave the idea of deferring to state officials a bad name.

You can see its legacy in the California death penalty case.

While anyone would feel revulsion reading the details of bungled executions by lethal injection, the Constitution leaves it up to the people of each state to run their own criminal justice systems.

At no time in the nation's history did the people of the United States agree to allow the federal courts to halt state executions. The federal courts usurped that power from the states and now regularly delay and disrupt capital punishment as state officials and victims' families watch helplessly.

Sometimes that appears to be a good thing. But you should know that you never agreed to it.


Copyright 2006

Editor's note: For complete source notes, please see the appendix to The 37th Amendment: A Novel, "How the First Amendment Came to Protect Topless Dancing," at http://www.ExtremeInk.com/appendix.htm.

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