Louisiana Supreme Court upholds death penalty for rape of an 8-year-old girl

[Emsworth]

The fact that the death penalty is disproportionate to the crime of rape was supposedly established (in Coker) by the fact that only one state authorized capital punishment for rapists. I don't know what the situation is now, but when Coker was decided, only three states authorized capital punishment for child rapists. If forty-nine states represent a "national consensus" that the death penalty is disproportionate to rape of an adult, then surely forty-seven states can be said to represent a "national consensus" that the death penalty is disproportionate to rape of a child. Between forty-nine and forty-seven, I see no meaningful difference.

Needless to say, this notion of counting up states while interpreting the Eighth Amendment is unsound--but the Supreme Court has adopted it nevertheless, so one is forced to conclude that the Louisiana Supreme Court probably erred.

[Emsworth]

If the "national consensus" standard is applied to Kennedy as it has been applied in other cases (i.e., by simply counting the number of states that impose a particular punishment), then the majority probably reached the correct result. I am not persuaded by the argument that state legislatures across the country would have liked to impose capital punishment for child rape, but were stifled by language in Coker.

The problem lies not with the Court's application of the national consensus test, but with the test itself. It is absurd and illogical to say that a punishment is constitutional if more than 50% of the states impose it, and unconstitutional otherwise.

[Emsworth]

I totally agree.  I've noticed that a number of correct decisions: Brown v. Board, Roe v. Wade, and Roper v. Simmons, to name a few, aren't grounded all that strongly in actual Constitutional law.

There's nothing wrong with the decision reached in Brown v. Board. The Court's opinion did not include the best arguments, but the result was perfectly sound.

Roe and Roper, on the other hand, leave a lot to be desired.