Lift Up Your Hearts!

In an earlier post on the Lisbon Treaty, I stated

[I]n the U.S. we have seen state laws gradually subsumed more and more by national regulation, so that fleeing to Pennsylvania from a repressive law in New York is not as easy as it once was.  I'm not saying this is always bad, but it can be, and bears watching.

I"m watching, and here's an example I saw today.  The U. S. Supreme Court has nullified a Louisiana law allowing for a sentence of the death penalty following conviction for the rape of a child under 12.

However devastating the crime to children, Justice Anthony Kennedy wrote in his majority opinion, "the death penalty is not a proportional punishment for the rape of a child." His four liberal colleagues joined him, while the four more conservative justices dissented.

There has not been an execution in the United States for a crime that did not also involve the death of the victim in 44 years, a factor that weighed in Kennedy's decision.... Kennedy said the absence of any recent executions for rape and the small number of states that allow it demonstrate "there is a national consensus against capital punishment for the crime of child rape."

What's wrong here?  Why are the judges debating the heinousness of the crime, and why are they judging by perceived national consensus?  Shouldn't the question before the Court be, "Is there anything in the Constitution of the United States that prohibits the State of Louisiana from imposing this sentence?"

That, as they say, is why we pay them the big bucks.  Questions of the legitimacy of the death penalty and what might be suitable punishment for a man who repeatedly rapes a five-year-old girl can be debated by the voters and their representatives in each state.  The purview of those nine experts in Constitutional Law is the Constitution itself.