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The Death Penalty: Who Decides? (Washington Examiner) July 26, 2019

Posted by daviddavenport in Op/Eds.

Beginning in 1973 with Roe v. Wade, establishing a woman’s constitutional right to choose an abortion, liberals have led a continual march for social change, primarily using the courts. Perhaps the largest social change since Roe was the Supreme Court’s recognition of the right to gay marriage in 2015, but there have been many other liberal victories along the way.

Next up on the liberal social agenda appears to be the abolition of the death penalty. With the announcement from the Department of Justice that it would resume carrying out the death penalty for federal death row inmates, not done since 2003, the response was dire and immediate. Ruth Friedman, director of the Federal Capital Habeas Project, called the death penalty “arbitrary, racially-biased, and rife with poor lawyering and junk science.” Sen. Kamala Harris called capital punishment “immoral and deeply flawed,” while former Vice President Joe Biden reversed yet another of his earlier positions, now opposing the federal death penalty.

Polls show that the public still supports the death penalty, but liberal elites are nevertheless leading the charge against it. In California, Gov. Gavin Newsom has unilaterally placed a moratorium on carrying out the death penalty, even though he said as a candidate that he would accept the will of the people who had voted twice in recent years to retain it.

So much for carrying out the will of the people or one’s own campaign promises.

One fundamental question that needs to be addressed is who decides social questions such as abortion, gay marriage, and the death penalty? Unless the Constitution mandates otherwise, these are decisions for the people to make through their elected representatives. Instead of the people, elitists on our courts have decided to become the engines of social change to create rights of abortion and gay marriage, while executive power in the case of Newsom overrides the people’s voice on the death penalty. Rather than Congress and state legislatures holding thoughtful debates, listening to the people, holding hearings, and amending legislation, courts and governors simply impose their own “superior” judgment.

The problem with unilateral action by elite courts and executive orders is that they are likely to trigger a political backlash. We never really had a national debate about abortion and so now, 46 years after Roe v. Wade, a battle rages on as states continually challenge the federal judicial ruling. States were moving on the question of gay marriage until the U.S. Supreme Court stopped the debate and simply declared it done. It was a win for liberals in the short run, but that has surely contributed to the divisive politics that have plagued us now for decades. One could argue that President Trump’s election was part of the political backlash, and his effort to stock the courts with conservative justices is an attempt to rebalance or tip the scales back the other way.

So the death penalty is the next agenda item for liberal social change and, once again, who decides? It should not be governors such as Newsom making unilateral decisions, especially in the face of a vote of their own people. Since the death penalty has operated for centuries and has not been deemed unconstitutional as “cruel and unusual punishment” banned by the Eight Amendment, judges should not decide it.

No, in our democratic republic, the people and their elected representatives should be debating and deciding the great social issues of the day. Moreover, there will need to be sufficient patience on the part of advocates for change to allow that debate to occur. Otherwise, this divisive careening back and forth between unilateral decisions by the elites followed by political resistance and backlash from the people will continue.

In our democratic republic, winning isn’t everything; it’s also important who decides and how.

To read the column at the Washington Examiner:


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