S148 CONGRESSIONAL RECORD — SENATE January 6, 2009 

SENATE RESOLUTION 4—EXPRESSING THE SENSE OF THE SENATE 

THAT THE SUPREME COURT OF 

THE UNITED STATES ERRONEOUSLY DECIDED KENNEDY V. 

LOUISIANA, NO. 07–343 (2008), AND 

THAT THE EIGHTH AMENDMENT 

TO THE CONSTITUTION OF THE 

UNITED STATES ALLOWS THE 

IMPOSITION OF THE DEATH PENALTY FOR THE RAPE OF A 

CHILD 

Mr. VITTER submitted the following 

resolution; which was referred to the 

Committee on the Judiciary: 

S. RES. 4 

Whereas 1 out of 3 sexual assault victims is 

under 12 years of age; 

Whereas raping a child is a particularly depraved, perverted, and heinous act; 

Whereas child rape is among the most morally reprehensible crimes; 

Whereas child rape is a gross defilement of 

innocence that should be severely punished; 

Whereas a raped child suffers immeasurable physical, psychological, and emotional harm from which the child may never 

recover; 

Whereas the Federal Government and 

State governments have a right and a duty 

to combat, prevent, and punish child rape; 

Whereas the popularly elected representatives of Louisiana modified the rape laws of 

the State in 1995, making the aggravated 

rape of a child 11 years of age or younger 

punishable by death, life imprisonment without parole, probation, or suspension of sentence, as determined by a jury; 

Whereas on March 2, 1998, Patrick Kennedy, a resident of Louisiana, brutally raped 

his 8-year-old stepdaughter; 

Whereas the injuries inflicted on the child 

victim by her stepfather were described by 

an expert in pediatric forensic medicine as 

‘‘the most severe he had seen from a sexual 

assault’’; 

Whereas the cataclysmic injuries to her 8- 

year-old body required emergency surgery; 

Whereas a jury of 12 Louisiana citizens 

convicted Patrick Kennedy of this depraved 

crime, and unanimously sentenced him to 

death; 

Whereas the Supreme Court of Louisiana 

upheld this sentence, holding that the death 

penalty was not an excessive punishment for 

Kennedy’s crime; 

Whereas the Supreme Court of Louisiana 

relied on precedent interpreting the eighth 

amendment to the Constitution of the 

United States; 

Whereas on June 25, 2008, the Supreme 

Court of the United States held in Kennedy 

v. Louisiana, No. 07–343 (2008), that executing 

Patrick Kennedy for the rape of his stepdaughter would be ‘‘cruel and unusual punishment’’; 

Whereas the Supreme Court, in the 5–4 decision, overturned the judgment of Louisiana’s elected officials, the citizens who sat 

on the jury, and the Louisiana Supreme 

Court; 

Whereas this decision marked the first 

time that the Supreme Court held that the 

death penalty for child rape was unconstitutional; 

Whereas, as Justice Alito observed in his 

dissent, the opinion of the majority was so 

broad that it precludes the Federal Government and State governments from authorizing the death penalty for child rape ‘‘no 

matter how young the child, no matter how 

many times the child is raped, no matter 

how many children the perpetrator rapes, no 

matter how sadistic the crime, no matter 

how much physical or psychological trauma 

is inflicted, and no matter how heinous the 

perpetrator’s prior criminal record may be’’; 

Whereas, in the United States, the people, 

not the Government, are sovereign; 

Whereas the Constitution of the United 

States is supreme and deserving of the people’s allegiance; 

Whereas the framers of the eighth amendment did not intend to prohibit the death 

penalty for child rape; 

Whereas the imposition of the death penalty for child rape has never been within the 

plain and ordinary meaning of ‘‘cruel and unusual punishment’’, neither now nor at the 

adoption of the eighth amendment; 

Whereas instead of construing the eighth 

amendment’s prohibition of ‘‘cruel and unusual punishment’’ according to its original 

meaning or its plain and ordinary meaning, 

the Court followed a two-step approach of 

first attempting to discern a national consensus regarding the appropriateness of the 

death penalty for child rape and then applying the Justices’ own independent judgment 

in light of their interpretation of a national 

consensus and evolving standards of decency; 

Whereas, to the extent that a national consensus is relevant to the meaning of the 

eighth amendment, there is national consensus in favor of the death penalty for child 

rape, as evidenced by the adoption of that 

penalty by the elected branches of the Federal Government only 2 years ago, and by the 

swift denunciations of the Kennedy v. Louisiana decision by the presumptive nominees 

for President of both major political parties; 

Whereas the evolving standards of decency 

is an arbitrary construct without foundation 

in the Constitution of the United States and 

should have no bearing on Justices who are 

bound to interpret the laws of the United 

States; 

Whereas the standards of decency in the 

United States have evolved toward approval 

of the death penalty for child rape, as evidenced by 6 States and the Federal Government adopting that penalty in the past 13 

years; 

Whereas the Supreme Court rendered its 

opinion without knowledge of a Federal law 

authorizing the death penalty for child rapists; 

Whereas the Federal law authorizing the 

death penalty for child rapists was passed by 

Congress and signed by the President 2 years 

before the Supreme Court released the decision; and 

Whereas the Court presumably would have 

deferred to the elected branches of government in determining a national consensus 

regarding evolving standards of decency had 

it been aware of the Federal law authorizing 

the death penalty for child rapists at the 

time that it made the decision: Now, therefore, be it 

Resolved, That it is the sense of the Senate 

that— 

(1) the depraved conduct of the worst child 

rapists merits the death penalty; 

(2) standards of decency allow, and sometimes compel, the death penalty for child 

rape; 

(3) the eighth amendment to the Constitution of the United States allows the death 

penalty for the rape of a child where the 

crime did not result, and was not intended to 

result, in death of the victim; 

(4) the Louisiana statute making child 

rape punishable by death is constitutional; 

(5) the Supreme Court of the United States 

should grant any petition for rehearing of 

Kennedy v. Louisiana, No. 07–343 (2008), because the case was decided under a mistaken 

view of Federal law; 

(6) the portions of the Kennedy v. Louisiana decision regarding the national consensus or evolving standards of decency with 

respect to the imposition of the death penalty for child rape should not be viewed by 

Federal or State courts as binding precedent, 

because the Supreme Court was operating 

under a mistaken view of Federal law; and 

(7) the Supreme Court should reverse its 

decision in Kennedy v. Louisiana, on rehearing or in a future case, because the decision 

was supported by neither commonly held beliefs about ‘‘cruel and unusual punishment’’, 

nor by the text, structure, or history of the 

Constitution of the United States. 

f 

SENATE RESOLUTION 5—EXPRESSING THE SUPPORT FOR PRAYER 

AT SCHOOL BOARD MEETINGS 

Mr. VITTER submitted the following 

resolution; which was referred to the 

Committee on Health, Education, 

Labor, and Pensions. 

S. RES. 5 

Whereas the freedom to practice religion 

and to express religious thought is acknowledged to be a fundamental and unalienable 

right belonging to all individuals; 

Whereas the United States was founded on 

the principle of freedom of religion and not 

freedom from religion; 

Whereas the framers intended that the 

first amendment to the Constitution would 

prohibit the Federal Government from enacting any law that favors one religious denomination over another, not prohibit any 

mention of religion or reference to God in 

civic dialogue; 

Whereas in 1983, the Supreme Court held in 

Marsh v. Chambers, 463 U.S. 783, that the 

practice of opening legislative sessions with 

prayer has become part of the fabric of our 

society and invoking divine guidance on a 

public body entrusted with making the laws 

is not a violation of the Establishment 

Clause of the first amendment, but rather is 

simply a tolerable acknowledgment of beliefs 

widely held among the people of the Nation; 

Whereas voluntary prayer in elected bodies 

should not be limited to prayer in State legislatures and Congress; 

Whereas school boards are deliberative 

bodies of adults similar to a legislature in 

that they are elected by the people, act in 

the public interest, and hold sessions that 

are open to the public for voluntary attendance; and 

Whereas voluntary prayer by an elected 

body should be protected under law and encouraged in society because voluntary prayer has become a part of the fabric of our society, voluntary prayer acknowledges beliefs 

widely held among the people of the Nation, 

and the Supreme Court has held that it is 

not a violation of the Establishment Clause 

for a public body to invoke divine guidance: 

Now, therefore, be it 

Resolved, That the Senate— 

(1) recognizes that prayer before school 

board meetings is a protected act in accordance with the fundamental principles upon 

which the Nation was founded; and 

(2) expresses support for the practice of 

prayer at the beginning of school board 

meetings. 

f 

SENATE RESOLUTION 6—EXPRESSING SOLIDARITY WITH ISRAEL 

IN ISRAEL’S DEFENSE AGAINST 

TERRORISM IN THE GAZA STRIP 

Mr. VITTER submitted the following 

resolution; which was referred to the 

Committee on Foreign Relations: 

S. RES. 6 

Whereas the state of Israel is the greatest 

ally of the United States in the Middle East; 


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