6-26-89 . . . I never cease to be amazed at the stupidity (from the word “stupor”) of ordinary people. Philosophers are adept at making the most subtle of distinctions, while the rest of society can’t bring itself to make the most basic. Case in point: The United States Supreme Court ruled today that the Eighth Amendment to the United States Constitution, which forbids “cruel and unusual punishments”, does not prevent states from executing people who were sixteen years of age or older at the time their offenses were committed. Based on the commentary that I heard this evening on television, people are interpreting the ruling as follows: The Court, they say, either (1) approves of such executions or (and this is even more bizarre) (2) is forcing states to execute children. Neither of these propositions follows from the ruling, of course. What people fail to understand is that the Supreme Court, in its capacity as interpreter of the Constitution, is concerned with what must and may be the case, not with what ought to be the case, either morally or prudentially. The Court can tell a state legislature that it must do such-and-such (for example, provide counsel to indigent criminal defendants pursuant to the Sixth Amendment) or that it may do such-and-such (for example, execute juveniles pursuant to the Eighth Amendment). It has nothing to say about whether a state that may, constitutionally, do X should, all things considered, do X. In other words, the Court sets the parameters of state action; it does not dispense wisdom or make moral or prudential prescriptions.
The problem is that people—even otherwise intelligent people—confuse different kinds of propositions. There’s a big difference between (1) S may do X, (2) S must do X, and (3) S should or ought to do X. It does not follow from the fact that S may do X that S ought to do X; nor does it follow from the fact that S may do X that S must do X. On the other hand, if S must do X, then S may do X (on pain of inconsistency), and if S ought to do X, then S may do X. Logic constrains the inferences that may be drawn from these propositions. To repeat: The Supreme Court’s job is to issue judgments of form (1) or form (2), where the “S” represents either a state or a state legislature. It never issues judgments of form (3). Consequently, the Supreme Court has made no judgment concerning what states should do with respect to executing juveniles. All it has said is that the United States Constitution does not stand in the way of states that decide, for whatever reason, to do so. Whether these state decisions are wise, just, reasonable, or something that ought to be done, all things considered, is a separate question beyond the province of the Court. I wish journalists and commentators would think hard before speaking. It would make for a more rational—and undoubtedly a better—world.
