It has to be the most absurd argument ever, the idea that somehow the Constitution prohibits execution. The simple fact that all thirteen colonies regularly executed criminals, in ways we would consider "inhumane" today, should be the most effective argument that the founders did not intend for the constitution to prohibit execution.

That doe snot mean that we should not debate the death penalty. I can even agree that the side arguing against the penalty has some valid arguments. My only complaint is with their tactics. Unless one believes in a hopeless protean "living" Constitution, I don't think anyone can argue that the Constitutional Convention wanted to end executions with the Constitution, because of the simple fact that executions continued without interruption. That should be the most obvious argument that nothing in the Bill of Rights was written with the intention of ending executions.

But that is a peculiarity of the modern political environment. Groups who are unable to press their cause through the legislature, and are unable to win over voters in elections, resort to the courts to try to impose their will on an unwilling electorate. That it results in a warping of the Constitution, and a hopelessly unpredictable environment* because of the novel doctrine of a "living" Constitution doe snot seem to bother them.

If we must debate the death penalty, let us leave the courts and debate it where such debates belong, in the legislatures and in elections. As I said, there are valid arguments against the death penalty, so why not present them to the voters and let the people decide? It would certainly be a better way to approach matters than this effort to twist the Constitution into something it was never intended to be.

Of course, years of fighting in courts has harmed the chances of the death penalty opponents in a public battle. In courts they had to rely on proving that the death penalty was cruel and unusual, and that argument will not do much for them in an election. Most voters are not particularly worried that a murderer, who had not thoughts about the suffering of those he killed, may suffer some pain during his execution.

But were the opponents to give up this endless court battle, and return to the valid arguments that the death penalty leaves no recourse in the case of mistakes, or that simple humanity asks that we give a chance to reform to even the worst criminals**, they might have a chance.

Might.

The one problem standing in the way of the opponents of the death penalty is one of their own making, or at least of their allies. Those on the left, among whose ranks most opponents of the death penalty are found, have also been quite vocal in arguing for lighter prison sentences and easier conditions for parole. So long as the possibility of parole (or release due to overcrowding) remains, the public will be quite reluctant to cut off the death penalty option, as the death penalty remains, in their minds, the one way to make sure the worst of killers are never released.

But if the opponents of the death penalty broke with those pushing lenient sentencing and called for true life without parole, and changed their arguments to those the public might endorse, they would have some chance of winning in the public arena. And even if they did not, fighting it out in elections will not do all the harm that these endless court battles have done.

I don't think they will get the public support they would need, but it would still be better for the nation. Trying to legislate through the judiciary, and impose one's will by winning over just 5 judges, will inevitably result in hard feelings and endless battles back and forth. It is far better to fight and lose in the public arena that turn the judiciary into a super-legislature.

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* I have long planned to write on the topic of how an unpredictable legal environment is a huge detriment to human activity, and that even bad laws, if consistent, are better than the best laws applied arbitrarily. Hopefully I will find time soon to actually write it, as this is either the seocnd or third time I have mentioned this essay.

** I am not saying that I accept either of these arguments, just that they are plausible arguments. I can see the merit in arguing that the death penalty does not allow for errors, and, as a compassionate being, I can understand a desire to allow even the worst a second chance. On the other hand, I think there is a very strong argument against feeling too much compassion for the murderer, as I wrote before.