Among the exhibits was a diagram of the murder scene. It indicated where the terribly wounded body of the 3-year-old boy had lain. During her closing argument to the jury, the assistant district attorney took the butcher knife the defendant had used. She stabbed a hole in the diagram. This, she said, is what Pervis Tyrone Payne did to a defenseless child.

There was more. The state showed the sentencing jury a videotape, in color, of the bloody corpses of 28-year-old Clarisse Christopher and her 2-year-old daughter, Leslie Jo. The tape had been made an hour after the crime. The blood was still fresh and vivid, the vacant eyes still staring.It was an effective peroration. Four years ago the jury sentenced Payne to death. Tennessee's Supreme Court affirmed the decision in 1987. Now the U.S. Supreme Court is about to hear argument in the case, and once more we will grasp a cynical but immutable truth of jurisprudence: The Constitution is what the judges say it is. This time the Constitution will be what Justice David Souter says it is.

Over the past 200 years, the Bill of Rights has not changed by so much as a comma. The 14th Amendment, which mystically incorporated the Bill of Rights, remains just as it was ratified in 1868. But judges come and go, and that is all that matters.

Consider the pending case of Payne vs. Tennessee, and turn back the clock, if you will, to June 15, 1987. That was when the high court split 5-4 in the case of Booth vs. Maryland.

During the trial phase, Booth had been found guilty of stabbing to death an elderly Baltimore couple. During the sentencing phase, the prosecution offered a "Victim Impact Statement" (VIS) in which the state described the high regard in which the victims had been held. The statement dealt with the effect of the murders upon members of the family. A son said bitterly that his parents had been "butchered like animals." The sentencing jury voted for death.

Booth appealed. He argued that it is cruel and unusual punishment, in violation of the Eighth Amendment, for a jury to consider such "irrelevant and inflammatory" material at the sentencing phase. Speaking through Justice Lewis Powell, the Supreme Court agreed. The use of such Victim Impact Statements, said Powell, creates a risk of an "arbitrary and capricious" decision. The character of the victims, and the emotional reaction of family members, have nothing to do with the moral guilt and personal responsibility of the accused.

Justices White, O'Connor, Scalia and Chief Justice Rehnquist dissented. It is all very well, said White, to consider the defendant as an individual, but "so too the victim is an individual whose death represents a unique loss to society and in particular to his family." Scalia remarked separately that "the amount of harm one causes does bear upon the extent of his `personal responsibility."'

Now Justice William Brennan has retired; Souter has come on to succeed him. The pending case of Payne parallels the Booth case in every material way: a brutal stabbing, two dead. Payne nearly killed the little boy also. The Supreme Court of Tennessee would note that some of the stab wounds "went all the way through the boy's body. " The evidence against Payne was overwhelming. The state's rhetoric was plainly emotional.

Tennessee's chief justice, in affirming the death sentence, scorned the notion that it violates the Eighth Amendment to note the harm done to victims of crime. In that view I concur absolutely. Defendants have rights that are well protected. But victims have rights as well.