Louisiana Supreme Court upheld a death sentence for the rape of an eight-year-old girl yesterday, setting up a real interesting constitutional challenge.

Louisiana's Supreme Court ruled Tuesday that a man may be executed for raping an 8-year-old girl, and lawyers say his case may become the test for whether the nation's highest court upholds the death penalty for someone who rapes a child. Both sides say the sentence for Patrick Kennedy, 42, could expand a 1977 U.S. Supreme Court ruling that held the death penalty for rape violated the Eighth Amendment protection against cruel and unusual punishment. The high court said then that its ruling applied only to adult victims. Attorney Jelpi Picou, director of the New Orleans-based Capital Appeals Project, said he will ask the Louisiana Supreme Court for a rehearing and, if rejected, will go to the U.S. Supreme Court. "As horrid as (rape) is and as harshly as we believe it should be condemned, death is inappropriate in this case," Picou said. Louisiana law allows the death penalty for the aggravated rape of someone less than 12 years old. "He's the only person in the United States on death row for non-homicide rape," Picou said.

Now here’s where it gets interesting. Given the 1977 ruling, which effectively held that the Eighth Amendment to the Constitution had evolved to prohibit capital punishment for rape, the Louisiana statute and this decision would appear to be in direct contradiction of the controlling legal authority on the matter. However, as we all know, there exists the notion that the Constitution evolves and grows and changes over time, making it a rather fluid standard by which to determine the constitutionality of any state action. Indeed, that 1977 decision itself was a part of a series of “evolving standard” decisions related to the death penalty – for certainly the Framers of the Bill of Rights and those who ratified it did not view capital punishment as something to be reserved for homicide cases alone.

And therein lies the crux of the matter. If one concedes the legitimacy of the 1977 decision, then one must admit that the Constitution grows and changes over time. But if that is the case, then there is no legitimate basis for striking down the Louisiana statute and overruling the Louisiana high court. After all, one can legitimately argue that the Eighth Amendment has evolved again, and now allows capital punishment for some, if not all, sex crimes. After all, society’s attitudes towards and experiences with sex criminals over the last three decades have resulted in an entirely new way of viewing predatory perverts who sexually victimize children. A new consensus has emerged in our society about the need to harshly punish such individuals, and the Louisiana law is one example of that trend (at least six state have similar laws on the books or will shortly). If the standard can evolve and change in a liberal direction to protect violent child abusers from a just punishment, why can it not transform back to the original intent of those who wrote and adopted it? To argue that it cannot is to expose the illegitimacy of the “living Constitution” theory of “evolving standards” – and expose it as nothing more than legislating from the bench to impose liberal dogma that would never be accepted by We the People.

On the other hand, an originalist understanding of the Constitution and Bill of Rights would surely allow the state of Louisiana to impose death as a just punishment for violent pedophiles like Patrick Kennedy – and any other sex criminal as well.

In other words, there is no legitimate reason for the Supreme Court not to overturn the 1977 decision – other than a raw judicial arrogance that places the rights of rapists above justice for their victims.

Interestingly enough, Jonah Goldberg takes on the same philosophical issue in a pair of posts (related to a different context) at NRO’s The Corner.