Dog Trainee Jonathan Schwartz likens Law Professor Douglas Kmiec’s originalist critique of Roper v. Simmons to that of a Jim Crow segregationist. Mr. Schwartz, whose last name means “black” but I’ll bet he isn’t, writes:

I grew up in a United States in which black citizens were, by law, forced to live in “their own” neighborhoods and attend “their” schools and could only use “their” restaurants and hotels. Drinking fountains and public toilets were marked “white” or “colored.” If we had adopted Kmiec’s approach to constitutional jurisprudence and waited for white-dominated legislatures to correct this monstrous social evil, we’d still be waiting.

In fact, more than a few white-dominated legislatures,namely the U.S. Congress followed by the state legislatures of Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, Ohio, New York, Kansas, Illinois, West Virginia, Michigan, Minnesota, Maine, Nevada, Indiana, Missouri, Rhode Island, Wisconsin, Pennsylvania, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Louisiana and South Carolina, took care of that problem shortly after the civil war, which itself was fought at the best of white-dominated legislatures. The only reason government-sponsored race segregation didn’t end in 1868 is because courts at the time did not adopt Kmiec’s approach to constitutional jurisprudence, preferring instead Justice Kennedy’s faux consensus-based jurisprudence instead.

Mr. Schwartz does raise an interesting point, however unintentionally while there is absolutely no historical basis for the theory that the Eighth Amendment declares any form of punishment “cruel and unusual” when applied to certain age groups but not others, the Fourteenth Amendment, which Schwartz bastardizes, does prohibit arbitrary legal classifications between citizens. While no court has to date declared age a suspect class for purposes of the Fourteenth Amendment (see, e.g., Humenansky v. Regents of the Univ. of Minnesota, 152 F.3d 822, 827 (8th Cir. 1998)) there’s no good reason why they couldn’t. [OK, maybe there's one good reason, i.e., mine, that the equal protection clause was intended to prohibit invidious discrimination by race, and nothing else, but courts ditched that theory a long time ago.] So ironically, it would actually have made a lot more sense to strike down the death penalty laws in the 19 states that arbitrarily exempt 16- and 17-year old offenders than it did to strike down the ones that do not.