The Court’s decision today — in a narrow 5-4 ruling — strongly signals that America’s understanding of “cruel and unusual” punishment evolves over time, and says the role of the Justices is to carefully judge those moral standards and apply them fairly. The death penalty is now prohibited in cases of child rape.

The Justices find a national consensus against imposition of the death penalty in child rape cases (only 5 states allow death for this crime, and the punishment is extremely rarely carried out). Not to be overlooked are their astute observations that states appling the death penalty for child rape remove the incentive for rapists not to murder their victim; they discourage reporting of child rape, especially when family members are involved; and they also present a “special risk of wrongful execution” because such cases usually rely on testimony from children (who have a documented risk of unreliable, induced, and imagined testimony).

On the other hand, a dissenting opinion filed by Alito relies on unusually specious reasoning, holding that there is no national consensus against the imposition of the death penalty. Why? Because state legislatures have been dissuaded from enacting their true “values” because of past supposedly activist rulings of the Supreme Court. Really. Legislators feared, they say, that the Court created “a bright line between murder and all rapes—regardless of the degree of brutality of the rape or theeffect upon the victim.” The problem is the Court said no such thing (the plain language of the relevant ruling limited its scope only to the rape of adult females, not children). Most bewilderingly, they acknowledge that legislators’ fears are legitimate because one former Justice (Powell) misunderstood the law to apply to child rape. Therefore, because one judge said the ruling might mean something it plainly does not, legislators were “reasonable” in fearing an activist Court.

I don’t have the specialized knowledge of legal experts. But I don’t hesitate to say that a bare majority of the Court is willing to accept their role as arbiters of America’s evolving standards of civility and human decency. For their willingness to do their jobs, we can all be grateful. Justice requires widom informed by an ability to balance many competing values and perspectives, and protect the legal rights of those persons some segments of society are most likely to treat inhumanely. Less hopeful is the fact that there are four Justices on the Court who neglect the evolving nature of our collective national conscience, making them forces of resistance and regression.

Their allies, pundits such as Ross Routhat, say today: “I don’t think that rape, even the rape of a child, merits the death penalty…” but nevertheless these opinionists are too weak in their convictions to say that America should prohibit inhumane treatment of prisoners. Our Court lies precariously divided between friends and enemies of the Good as it is revealed by the clear development of a consensus in our collective moral consciousness.

Technorati Tags: crime, death penalty, Douthat, judicial activism, Supreme Court

One of the most intriguing — and palatable, if I may speak freely — conservative thinkers writing today is The Atlantic’s Ross Douthat. Recently, he attempted his own definition of conservatism:

I don’t think of conservatism as a philosophy…. It’s a practical principle, yes, but I think a better way of putting it would be to call it an approach to political and social controversies, under which the fact that a given piece of furniture (i.e. a policy or institution) has suited in the past - and the fact that it is your piece of furniture, which belonged to your father and grandfather as well - gives the case for keeping it greater weight that it might enjoy if you simply tallied the chair or sofa’s good qualities and compared them to the really fabulous, amazing, but still-hypothetical qualities of the fancy new one that might replace it. Now certain political philosophies may be effectively conservative in certain times and places, because they function as defenses of the existing furniture - thus Lockean liberalism is an effectively conservative philosophy in contemporary America in a way that it wasn’t in the 17th century, and thus many contemporary American conservatives consider the Enlightenment, at least in its the Scottish and English manifestations, to be the patrimony that they’re charged with defending. But conservatism itself (again, under my admittedly idiosyncratic definition) is not a philosophy or an ideology; it’s an approach, a bias, or a political style.

The notion that conservatism is actually a style rather than an ideology hadn’t occurred to me, nor had I seriously imagined that a leading conservative writer would actually hold such conservatism isn’t a political philosophy. But, novelty aside, the idea is growing on me. Conservatism as a style overcomes a number of problems, especially the tricky issue that conservatives can’t agree on what it is that they all believe or have in common.

Ken Wilber, as many of my readers certainly know, argues that the political right is distinguished from the political left by virtue of its doctrine that the source of human suffering is in the interiors of individuals. Put simply, people suffer because human nature is selfish, lazy, and mean. If people suffer, it’s because they deserve it.

But if Douthat is correct, then Wilber’s view of the supposedly core conservative doctrine is really just one more way of intellectually justifying a much more fundamental disposition towards life. That is, I would summarize, the disposition that the case for keeping a tradition is given greater weight simply because it’s your tradition.

I’d like to put Douthat’s definition into a frame of reference that he wouldn’t be comfortable with, but seems reasonable to me. Douthat seems to be arguing that the conservative approach is to privilege the maintenance of smaller circles of concern over greater circles of concern at all levels of consciousness. At the egocentric level, conservatism privileges the maintenance of egoic structures and family structures. At the ethnocentric level, conservatism privileges the maintenance of tribal or national structures. It stands to reason that at the worldcentric level, conservatism privileges the maintenance of global structures (as opposed to Kosmocentric structures), and so on.

Douthat’s definition of conservatism is worth stewing over. It may also invite another consideration: What if the definition of an integral approach to politics is that it’s “not a philosophy or an ideology; it’s an approach, a bias, or a political style.” What might that style look like? Integralists inclined towards “include and transcend” might be rather conservative in temperament, whereas those inclined towards “include and transcend” might be rather progressive. Indeed, I’m inclined to think that there is not one integral political style but at least two major styles, one emphasizing Eros (progressivism) and the other Agape (conservatism).

Technorati Tags: agape, conservatism, Douthat, eros, integral, politics, progressivism