July 8, 2008

July 8, 2008 | Commentary on Legal Issues

Conservative Response to Death Penalty Ruling

On June 26, the Supreme Court struck down a death sentence in Louisiana for a man convicted of raping his eight-year-old stepdaughter. In a 5-4 decision, Justice Anthony Kennedy wrote that "we conclude that there is a national consensus against capital punishment for the crime of child rape." Once again, the Court engaged in judicial activism and handed violent criminals new rights.

The 8th Amendment prevents the state from imposing "cruel and unusual punishment." According to David F. Forte, writing in The Heritage Guide to the Constitution, "the ban on cruel and unusual punishment in the 1689 English Bill or Rights applied only to punishments not authorized by Parliament. The American colonial understanding, on the other hand, was that the ban applied to torturous punishments such as pillorying, disemboweling, decapitation, and drawing and quartering." In short, the death penalty is not explicitly banned by the 8th Amendment.

According to Sen. David Vitter (R-La.), who introduced legislation as a state legislator to authorize the death penalty for child rapists, "We are talking about really heinous cases involving the rape of a child. Given that, I think it should be left to up to state legislatures to set penalties." Rep. Paul Broun of Georgia has introduced an amendment to the Constitution to make the death penalty constitutional for convicted rapists of children under 16.

Such an amendment shouldn't be necessary; many conservatives are understandably wary of changing the Constitution. Yet the Supreme Court has effectively written into the Constitution a new limitation that prevents the death penalty for violent rapists, and Broun's proposal could spur a needed debate on this subject.

PEPFAR

The Senate will be considering a $50 billion bill to triple current funding for the President's Emergency Plan for AIDS Relief (PEPFAR) potentially as early as this week. The Congressional Budget Office says that this is $15 billion more than the program needs to meet its stated goals. The "extra" billions would be spent on activities that don't have a lot to do with fighting AIDS in Africa.

PEPFAR originally focused on poor countries in sub-Saharan Africa, where the epidemic has reached the general population. The current legislation, however, seeks to expand the program to the entire world, fighting AIDS wherever it's found. In most countries outside of Africa, epidemic-level AIDS is limited to the red-light districts. Experts used to think that AIDS could spread from these groups to the general population -- a belief used to justify the expansion of PEPFAR outside of Africa.

But the World Health Organization recently announced that this theory is false. After studying the patterns of AIDS cases in country after country, it found no evidence that an AIDS epidemic has ever spread from the red-light districts to the general population. That means that the Senate is preparing to spend billions to fight an AIDS emergency where none exists.

Lawmakers should keep PEPFAR's focus on Africa and the crisis there. They should restore the funding requirement for fidelity and abstinence programs, which are the only programs proven to be effective. They should eliminate the provisions where PEPFAR duplicates other foreign aid programs. And they could then return those "extra" billions of dollars to the taxpayers.

Global Warming

The Environmental Protection Agency, it's rumored, is about to release a blueprint for nationwide carbon dioxide regulation. It's the administration's response to an April 2007 Supreme Court ruling. Just three weeks ago, Americans and their senators rebuked an economy-wrecking cap-and-tax plan for regulating carbon dioxide. Now the administration may be snatching defeat from the jaws of victory.

The technical issue is whether carbon dioxide is a pollutant (it isn't) and thus can be regulated under the Clean Air Act. The Supreme Court takes this view. Yet this proposed regulation would make the economic misery of Lieberman-Warner pale in comparison.

EPA bureaucrats have been left free to pursue their radical agenda of weaning American from fossil fuels. Their agenda knows no bounds -- schools, hospitals, colleges, retirement homes, farms, small machine shops, distilleries, orphanages and military installations could be subject to complex, time-consuming and extremely costly regulations.

When unelected bureaucrats with a radical environmental agenda try to force draconian carbon-dioxide rationing on America, conservatives need to act.

Brian Darling is director of U.S. Senate Relations at The Heritage Foundation.

About the Author

Brian Darling Senior Fellow for Government Studies
Government Studies

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First appeared in Human Events