Posted on 03/01/2005 8:49:19 AM PST by crushkerry
Go to pages 21-25 of the Opinion (can't post the text here) and read Justice Kennedy's opinion on how we need to take into account world opinion and how the Court should look to "the leading members of the European Community" in deciding on some cases. If you never thought Judges were important, you should now. (This doesn't apply to most Freepers.
If anyone could find a way to print Pages 21-25 of the Opinion, in which Kennedy discusses the topic please copy it. Thanks
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
In urging approval of a constitution that gave lifetenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468–1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12–13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13–14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regard-ing Article 6(5), as noted, supra, at 13); American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/ 24.9/49 (1990) (entered into force Nov. 29, 1999) (same).
Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49–50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.
Though the international covenants prohibiting the juvenile death penalty are of more recent date, it is instructive to note that the United Kingdom abolished the juvenile death penalty before these covenants came into being. The United Kingdom’s experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: [E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusuall Punishments inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441 (1770); see also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter. In 1930 an official committee rec- ommended that the minimum age for execution be raised to 21. House of Commons Report from the Select Committee on Capital Punishment (1930), 193, p. 44. Parliament then enacted the Children and Young Person’s Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at the time of the offense. In the 56 years that have passed since the United Kingdom abolished the juvenile death penalty, the weight of authority against it there, and in the international community, has become well established.
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10–11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
Over time, from one generation to the next, the Consti- tution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. * * *
The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed.
Also we could use Saudi and Iranian case law to force sub human women like Susan Estrich to wear veils.
Maybe their can be some positive aspects to foreign law.
That's not quite fair. Two of the Justices that joined the Opinion of the Court are Clinton-appointed liberals. Of the other seven judges, four dissented (Rehnquist - Nixon; O'Connor - Reagan; Scalia - Reagan; Thomas - Bush) and three joined the Opinion of the Court (Stevens - Ford; Kennedy - Reagan; Souter - Bush). The real tragedy is Kennedy -- because Bork should have written the Opinion of the Court and it then would have been 5-4 the other way. Hard to blame the Republicans for Bork's defeat -- except of course for Arlen Specter.
LOL! And a gag.
Has Kennedy forgotten how America and OUR Constitution came to be???
It's all downhill from here.
The plain fact is that despite Kennedy's denial, The Opinion of the Court referenced world opinion and practices because it was necessary to justify their decision. Otherwise, why waste so much tree and ink on all of that?
This is true. SCOTUS has been exceeding its Constitutional authority since Marbury v Madison. The Founding Fathers considered that Congress was the most powerful of the three branches of government. The Supreme Court is a usurper.
IMHO Kennedy and any other [O'Connor & Beyer] Justice should be IMPEACHED for this practice!!!
And all this time I thought we fought a war for our independence from the euro-elitists. How silly of me!
I agree completely with you; I wish we could impeach any judge who uses international law to interpret our constitution!
Article III
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
..... In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Might be time for Congress to make some Exceptions or Regulations. Checks and Balances and that sort of thing.
Clever fellows, those Founders.
When discussing a novel issue of law, courts can look at arguments from pretty much anywhere. These arguments are not controlling legal authority, but are what is known as persuasive legal authority.
I actually don't see a problem with this passage. This is just a wide-ranging discussion of international trends and SCOTUS's history of ruling on the 8th Amendment.
I got jumped on by some FReepers for bringing this subject up (using foreign judicial opinion as precident for deriving opinions here) a year or so back. Whats the use.
To be sure. The Supreme Court Justices may as well turn in their black robes as pretense of dignity and to then re-appear at the court in clown costumes and relinquish the gavel for a rubber bulb horn. The court should announce it is, "in session", with the "Howdy Doody Song".
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