WHEN SEEKING THE MORAL HIGH GROUND WE OUGHT TO QUESTION OURSELVES:

Madison's case compels us to focus on the death penalty in its granular reality: Assisting someone who is non-ambulatory, and bewildered because he is (in Stevenson's phrase) "memory-disordered," to be strapped down so an executioner can try to find a vein -- often a problem with the elderly -- to receive a lethal injection. Capital punishment is withering away because the process of litigating the administration of it is so expensive, and hence disproportionate to any demonstrable enhancement of public safety, but also because of a healthy squeamishness that speaks well of us.

Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment -- particularly the idea of what counts as "cruel" punishments -- "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Concerning which, two caveats are apposite: "Evolving" is not a synonym for "improving," and a society can become, as America arguably is becoming, infantilized as it "matures." That said, it certainly is true that standards of decency do evolve and that America's have improved astonishingly since 1958: Think about segregated lunch counters and much else.

Conservatives have their own standards, including this one: The state -- government -- already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.

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