Sunday, March 06, 2005

Troubling Court Decision

I don't disagree with the substance of the Supreme Court's recent decision that the death penalty cannot be given to someone who committed a crime as a minor. I'm against the death penalty in general, for reasons I explained here. However, the reasoning the Court used in reaching that decision, written by Justice Anthony Kennedy, is troubling.

George Will analyzed the decision in his column today in the Washington Post. You should read the column. If you know constitutional law and history and care about the integrity of the Constitution, you will be troubled, too. One of the most disturbing aspects of the decision is this:

While discussing America's "evolving standards of decency," Kennedy announces: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.

Kennedy evidently considers it unimportant that the United States attached to one of the conventions language reserving the right "to impose capital punishment . . . for crimes committed by persons below eighteen years of age." The United States never ratified the other convention Kennedy cites.


Kennedy the roving moralist sniffily disapproves of that nonratification as evidence that America is committing the cardinal sin of being out of step with "the world community."

It's easy to agree with decisions of the Supreme Court when they support your personal preferences. However, there are constitutional principles involved which make this decision very unwise. One of them is the reference to "the weight of international opinion."

Our Constitution is a singular pillar of our political system, and it is not--nor was it intended to be--subject to the influence of international opinion. If it were, how would you pick and choose that part of opinion in various countries and regions of the world that should be permitted to define it's meaning? I would submit that in terms of political philosophy and moral validity, most international opinion is not worthy of consideration in the context of the United States Constitution.

If you disagree, then consider this: If we permit the Constitution to be used to force world opinion on us regarding the death penalty, what's next? Perhaps it will become unconstitutional for women to drive, certain speech and affiliations will be outlawed, women who report rapes may be stoned and imprisoned, economic collectivization will be mandated, newspapers unfriendly to the government will be shut down, etc. You don't think so? Once that door is opened, why not?

8 Comments:

Blogger Esther said...

Just another reason why you are so awesome, Tom. The court agreed with you but you didn't accept that on face value.

The whole "weight of international opinion" is extremely troubling. While I don't completely agree with your stance on the death penalty, I'm completely on your side that this is a bad precedent.

1:03 PM, March 06, 2005  
Blogger Kevin said...

I agree, Tom. Both with your stance on the Death Penalty and on this troubling USSC ruling. I don't see how Justice Kennedy can justify basing a ruling even partially on international opinion. That has no place in American jurisprudence.

1:43 PM, March 06, 2005  
Blogger MaxedOutMama said...

Tom, don't commit rationality - you're going to give the blogosphere a bad name. Next they'll be calling it the "fair and balanced" blogosphere.

You wrote:
"If you disagree, then consider this: If we permit the Constitution to be used to force world opinion on us regarding the death penalty, what's next? Perhaps it will become unconstitutional for women to drive, certain speech and affiliations will be outlawed, women who report rapes may be stoned and imprisoned, economic collectivization will be mandated, newspapers unfriendly to the government will be shut down, etc. You don't think so? Once that door is opened, why not?"

I don't disagree, but I do quibble. The point is that this one case hinges on the definition of "cruel and unusual". I dislike the mention of international law as precedent, but it is a narrowly limited one in this one case. I don't feel personally that it is justified, but still this precedent doesn't open the door to stoning women who report rapes. It might be used in other cases that require definitional constructions, such as the definition of obscenity - so maybe requiring women to wear burqas would be a better example.

Still, I think those who are protesting the reference to international law are correct. This is a growing trend in the Supreme Court, and it is one of which I don't approve. The American system has sharp differences with those of even some European countries, and on principal I disallow the idea that we should try to conform our society to their understandings.

8:47 PM, March 06, 2005  
Blogger XBIP said...

This is the second case they have used international law. The first was Lawrence v Texas in which they struck down the sodomy laws.

It is a very bad precedent indeed.

9:33 PM, March 06, 2005  
Blogger rich bachelor said...

I'm not thinking that is a slippery-slope scenario, in which the Supremes are likely to use international opinion as their watermark for their decisions. I think that it may have more to do with the fact that our society has (rightfully, I feel) become the laughing-stock of the western world for this, and many other things. Kennedy, I suspect, would have made the same call, regardless of why; he just happened to use this as secondary rationale.
Debra Saunders also had a column today, in which she expressed the same doubts as Will. I thought that it was silly. We just happen to be a country that (for instance) demands keeping a controlling vote on the UN security council, while refusing to pay dues or obey any of the resolutions that body puts forth. Do we withdraw from the UN? No, we just deride it as being ineffectual, any chance we get, while actively thwarting its workings.
The fact that someone is acting like the rest of the world actually exists is pretty refreshing, in view of all the shit our nation has pulled on the world stage, of late.

9:52 PM, March 06, 2005  
Blogger Theodore Craig said...

I support the death penalty for a person (male or female) who's been convicted for the crime of murder, from the age of 12 years and up. I have this belief that anyone who's old enough to commit a murder, and is at the "age of accountability", should be punished as an adult for their crime!

Otherwise, the law is unbalanced!

2:59 PM, March 07, 2005  
Blogger Esther said...

Theodore I can agree with you a bit on this but only as it applies to my grand scheme about the death penalty -- for serial killers. Little Lee Malvo is more than welcome to fry in my opinion. I'd say that even if I wasn't originally from the area he terrorized and even if my parents weren't too scared to leave their homes for weeks on end. The evil little sh#t.

To me, if he gets out, I have no doubts he'd start killing again. And he loves trying to escape.

7:01 PM, March 07, 2005  
Blogger B said...

I would be so ill-informed if I didn't read your blog :-). I don't think that I'm as concerned about the international opinion reasoning. It doesn't seem on the face of it that acknowledging that reasonable and civilized societies recognize a moral imperative is a bad thing. But of course, I live in a fantasy where people can distinguish between the moral imperatives of the global community and theater of the absurd. Wonder when I'm going to grow up? :-)

12:31 PM, March 09, 2005  

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