Last Tuesday, fi ve membersof the Supreme Court concludedthat cruelty dependson one’s birthday. According toRoper v. Simmons, minors maynot be executed due to the Constitutionalprohibition of “crueland unusual” punishment.Because it takes so long tobring about a death penalty case,minors haven’t been executeduntil well past adulthood, and16- and 17-year-old murderersaren’t exactly children. However,some pundits speak as if a greatbarbarism has been purged fromAmerica.Yeah, now we only execute 18-year-olds.Roper v. Simmons does almostnothing except harm democraticself-government.There’s nothing wrong with theSupreme Court’s new standard.It’s logical, consistent and noless arbitrary than any other agelimit. However, the Constitutioncouldn’t have inspired it.In 1988 and 1989, the court examinedthe executions of minorsand determined no national consensusexisted on their cruelty. Atthat time, 25 states allowed individualsto be executed for crimescommitted under age 18.Since no execution for individualsyounger than 16 had takenplace since 1948, the court decideda consensus had developedagainst such executions, therebymaking them unconstitutional.Now the court claims, less convincingly,that a consensus existsagainst capital punishment forthose younger than 18.Curiously, 20 states allowed executionfor crimes committed byminors-including Utah. Severalsuch executions have taken placein the last 10 years, and 12 stateshave such individuals on deathrow. This doesn’t seem like a consensus.It’s not even a supermajority.Three years ago in Atkinsv. Virginia (which banned executionsof the mentally retarded),the court downplayed these rawnumbers.So what was the court’s evidence?Five states banned thedeath penalty for minors in thelast 16 years, supposedly refl ectingan underlying consensus.Amazingly, the court claimed thepractice of foreign nations banningsuch executions “confi rms”our alleged national consensus.Essentially, the Supreme Courtrevised the defi nition for “crueland unusual punishment” using”evolving standards” withouta national consensus on thesestandards. The court’s opiniontherefore constitutes a predictionat best. More likely, it refl ectssubjective preferences for fi veunelected judges.The Constitution doesn’tprovide for speculation on futuremoral consensus. Moreover,controversial decisions canpolarize partisans and prevent aconsensus from ever developingdemocratically-as happenedwith abortion.Also, the court’s precedentsuggests that if a few states abolishthe death penalty, it mightcompel a ban nationwide. Now,every state’s decision becomesa potential citation for the deathpenalty nationwide. Now everystate is a needless national deathpenaltybattleground.The only thing the courtachieved on Tuesday was lettingmoderates feel good about banninga postage stamp-sized pieceof a ghastly [email protected]