There's no question that the "cruel and unusual" clause of the Constitution require judges to look outside the text of the document and make more-subjective-than-usual judgments about contemporary mores, evolving standards, and so forth. But that seems like an excellent reasons for Supreme Court Justices to err heavily on the side of respecting legislative decisions in these cases. (Particularly those judges, one might add, whose constitutional theories supposedly bias them in favor of rulings that expand, rather than contract, the public's freedom to participate in their own government.) I don't think that rape, even the rape of a child, merits the death penalty. But I don't think so strongly enough that I'm comfortable with Anthony Kennedy et. al. telling the people of the United States that they aren't permitted to impose it.

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