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The Obvious Answer?

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From the comment thread at Eugene Volokh’s post on domestic surveillance aimed at detecting nuclear materials:

In my law school moot court final, the fact pattern was the same as Kyllo (then in the district court). Justice Kennedy asked me a hypothetical question that basically posed the question here: can the government conduct warrantless searches by electronic means for nuclear material inside a home. I do not remember my answer, but I remember that he was unimpressed by it. At the reception following the competition, he told me that I had missed the obvious answer. Sadly, he never told me what that answer was, and I still do not know.

The most “obvious” answer is that it would never be unreasonable to search for nuclear materials.

But it is also “obvious” that a blanket declaration that all executions of convicted killers under the age of 18 –including the execution of the hypothetical 17 year, 11 month and 29 day killer with an extraoridnary IQ who lays in wait and kills many law enforcement personnel, videotapes the act and confesses– are unconstitutional is absurd.

But Justice Kennedy’s ruling in Roper v. Simmons held just that, and thus leaves any reasonable person in doubt as to what “obvious” might mean to Justice Kennedy:

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

That, of course, is simply the pronouncement of a majority of nine unelected judges on what shall be the law of the land. It has as much to do with the Constitution as Terry Pluto’s latest on the Tribe’s chances in ’06. (BTW: Terry’s new book, Faith and You, will secure your esteem for Terry as the best sportswriter in America who is also a Christian.)

I can only hope that Justice Kennedy is more serious about the national security than he is about the Eighth Amendment.


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