It seems to at society’s “evolving standard of decency” mandates that we kill these scumbags like the dangerous beasts they really are.

Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.

In the intervening years, they have employed their interpretations of society's "evolving standards of decency" to remove juvenile and mentally retarded killers from death row.

Before that, they excluded kidnappers who did not kill and even some accomplices to murder. In 1977 the court also concluded that a state could not execute a man who raped an adult woman.

But on Wednesday the court will consider whether a person who rapes a child is different. Louisiana prosecutors will argue that the same societal mores that have persuaded justices to spare certain categories of criminals lead in the opposite direction when it comes to child rapists, demanding an expansion of capital punishment, not a retrenchment.

And herein lies the problem with the “evolving standard of decency” argument used by the Supreme Court. If it is, in fact, based upon what society holds is acceptable, then there is no fixed standard of what is or is not constitutional in the realm of the death penalty, which produces a degree of constitutional uncertainty which is unacceptable in a society that operates based upon the dictates of law rather than men. Unless, of course, the argument is that this evolution can move in only one direction, a liberal one, then the position taken by the justices is inherently flawed and illegitimate from a constitutional perspective because there is no language in the Constitution to support such a position. Indeed, I’d argue that most of the death penalty jurisprudence of the last three decades suffers from such flaws, all of which come back to the underlying problem that the justices have been substituting personal opinion and non-constitutional sources for the Constitution itself.

As for the question of the constitutionality of executing child rapists, an originalist reading of the Constitution certainly allows for it. Indeed, it would also allow for the execution of those under 18, based upon the practices in place at the time the Bill of Rights was adopted. One can question the wisdom of the law in question – but striking a law down as unwise is not the province of the Supreme Court under our system of government.