Roper v. Simmons pt III: The "risk" of Democracy

Roper v. Simmons is a key example of where the Court has overstepped it's Constitutional bounds and ultimately seems to have little patience or faith in representative democracy.

Let's step beyond the policy argument for a minute. There are good arguments on both sides of the policy issue of whether or not our society should sanction the death penalty for minors. For the sake of argument let's even assume that the Court was indeed correct; that it is unjust to subject minors to the death penalty.

Do we want five graduates of law school to be the ultimate authority on such complex social issues?

Are we capable as a democratic people to work throught these issues in our own states by petitioning our legislators?

Do we need the paternalistic hand of the Court even when they are right?

If a segment of the American citizenry wants to eliminate the juvinile death penalty then there is a democratic process to be followed:

1. Mobilize like minded citizens in each state.
2. Push each state legislature to eliminate the juvinile death penalty
3. If the Legislature does not respond, then convince a majority of your fellow citizens in each state to elect legislators who agree with your position.
4. Vote out legislators who do not agree with your position.
5. If your position is just and the rest of the American people agree with you, in time the law will be changed in each and every state.

The problem with this? It takes work. It takes convincing fellow citizens you hold a just and moral position and that your policy makes sense and will make sociey better. It takes mobilizing enough citizens to do something about it. It is difficult, it is democracy.

But democracy is so messy, it is so hard to convince my fellow citizens I am right. It is much easier to find a good test case channel resources into talented lawyers and seek to convince a handful of judges that you have a just position...who needs to bother with your fellow citizens.

At most the Court could have said, "We may agree with your policy position, but unfortunately the Constitution does not take a position on the juvenile death penalty. The term "cruel and unusual" has never been construed to prohibit such penalties. In this case the Constitution may allow for an unjust policy. Go back to your respective states and change state law. Or convince enough of your fellow citizens to enact a Constitutional amendment."

Democracies are not infallible, they simply seek to honor every person's natural right not to be ruled by another without their consent. Along with democracy comes the risk that the people will not always choose well. In the end, the lesson of Roper v. Simmons seems to be that the Court is just not willing to accept this risk...