Justice Kennedy's Death Penalty Opinion Cites "World Opinion" and International "Amicus" Briefs

US Supreme Court ^ | 3/1/05 | Justice Kennedy

[Repealthe17thAmendment]

I can accept that no one who committed a crime under the age of 18 should be executed. But state legislatures should make that decision.

[JCEccles]

The unelected life-tenured five member liberal majority of lawyers on the Supreme Court has no fixed standards, only its liberal feelings, to guide it in fashioning rules to bind the rest of us.

This is a shameful day in the history of the republic. It is not the first shameful day, and it will not be the last until and unless the Supreme Court has a majority that respects federalism and the republican form of government guaranteed to all citizens by the Constitution.

[marty60]

BS This is NOT a REPUBLICAN court. The last real constitutionalist was Bork, since then it has been nothing but mealy mouthed Judges that had to compromise any assemblence of a backbone to make it thru the DUMOCRAT filibuster process.

[TChris]

The Court would just find the Exceptions and Regulations to be unconstitutional.

And how could they do that, when that precise phrase is written into the Constitution?

[pawdoggie]

Worse even than Kennedy's reference to foreign/"international" law and jurisprudence is the concept of "evolving standards of decency". This is the kind of sophisticated (as in "sophistry") Left-Wing judicial sloganeering we've heard before: "informed consent", "fruit of the poisoned tree", "chilling effect", etc., etc., ad nauseum. Clearly Kennedy (the name says it all, it must be in the genes) is attempting to enter the Pantheon of Leftist Political Activist jurists. He was playing to the academy, not to the public (or its interest).

Consider that in the immediate aftermath of 9/11 there was a strong tide of opinion (even in the MSM) in favor torturing terrorists in order to gain actionable intelligence, to the extent of discussing which types of effective torture would be least objectionable in "absolute" moral terms (i.e. "evolution" number 1). A couple of years down the road, after the immediate threat had diminished, however, partisan politics reared its ugly head, and we were told of the "horrors" of Abu Ghraib and Guantanamo (i.e. "evolution number 2"). Now we have judges ruling that US citizens (and even non-citizens) cannot be treated as "enemy combatants" under the Geneva Conventions, but must receive their full suite of real and imagined Constitutional rights (meaning in theory that they cannot even be questioned without their Miranda rights and an attorney present, i.e. "evolution" number 3). These "evolutions in standards of decency" occurred in less than 3 years, not 15 years.

In this state (Kansas), and I believe in many others, a 16 year old can declare themselves an "emancipated minor", in effect divorcing themselves from parental control. Now, a 16 year old can't do everything an 18 year old can do (e.g. buy tobacco or vote), but then again an 18 year old can't do everything a 21 year old can. Nothing in the laws of the states which permitted the execution of 16 and 17 year olds forbade jurors from considering mitigating factors, including the emotional instability and immaturity of a given individual. Kennedy and his fellow affirmants had the option of affirming this particular ruling without nullifying state laws which might prevent the next Columbine, or (more likely) the next gang-banger contract killing, but that's not how you get your name in the Hall of Fame of judicial activism.

[ladylib]

This is totally wrong.

[freekitty]

Take this idiot off the court.

[freekitty]

They don't kill them in other countries through the court system. They kill them on the street. Besides not killing teens is just the first step in overturning the dealth penalty. Why in the world do the judges have so much power? When they decide they had it?

[Spiff]

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.

Excellent! I'm not well read on Supreme Court dissenting opinions - not at all. But is this dissent somewhat scathing? Slam! Go Scalia!

[cartoonistx]

[lentulusgracchus]

Sadly, this has become a trend of the liberal judge of the court to point to foreign law. Kennedy is the leader on this B.S. and did the same thing on the sodomy statute.

Isn't it obvious why? The country is becoming more conservative. So he repairs to other fountainheads of trendy liberalism to refresh his own bias, and deploys citations of United Nations paper against our own organic law.

[Non-Sequitur]

Sadly, this has become a trend of the liberal judge of the court to point to foreign law.

"The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely an historical accident, but rather so 'implicit in the concept of ordered liberty' that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)." -- Justice Scalia, Thompson v Oklahoma (487 US 815)

Damned liberals.

[Hacksaw]

Scalia saw a problem with it.

Modernist-man (like a lot of lawyers) is a judicial supremacist. They can pretty do whatever they want as far as he is concerned (unless of course it has something to do with religion). The problem for him is that better lawyers than he have been noting the trend of justices citing foreign law as a serious problem, not something that happens all the time and something we should just forget about. I'll take their word over his.

[lentulusgracchus]

[Your quote of Scalia's dissent] "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...."

Actually, I wouldn't let Hamilton off the hook. He was a practicing attorney and not above pushing a grift to get his way, as he did both in the Philadelphia Convention and in the ratification debates at home in New York, when he and fellow Federalist campaigner John Jay put it about, for the education of the Antifederalist yahoos upstate, that if Albany failed to move to ratify the Constitution, Federal-minded gentlemen in New York City might just take southern New York State with them and secede, and join the Union by ratifying the Constitution themselves as a new State. This was a canard, but it had some effect, and it shows Hamilton at his snarkiest. He also poured vitriol all over the idea of a Bill of Rights, including the Eighth Amendment, in Federalist 84, and continued to scoff at the idea in No. 85, the last of the series. Had Hamilton had his way, there would be no Eighth Amendment.

Further, Hamilton was accustomed to "work[ing] the treadles of slower minds" all his life, and any assuance he gave fellow New Yorkers in The Federalist that the Judiciary would remain "bound down" had to be, coming from an attorney, disingenuous. Because the first thing John Jay did, as the first Chief Justice of the Supreme Court, was to start handing down dicta that incorporated the principles of national amalgamation and nationalism that had been specifically repudiated by the Philadelphia Convention, the ratifying States, and the People generally -- a Supreme Court "instant tradition" of radical reinterpretation of the Constitution that Hamilton had to see coming, and which fellow Federalist John Marshall became notorious in perfecting when he became Chief Justice years after Jay.

This tradition had a consequence that was written in blood, by and by, when Abraham Lincoln relied on Federalist revisionist theories of the nature of the Union that had been compiled from Jay's and Marshall's opinions and dicta in the 1830's, in insisting on his theory of the Union that led directly to -- and justified -- his strenuous efforts to reconquer the Southern States after they seceded from the Union in 1860.

Jay's and Marshall's sausage-making cost America 620,000 battlefield dead and another 250,000 incidental casualties -- almost a million dead, in a nation that contained only 31,000,000 people at most in 1860. An equivalent proportion today would see about 9,000,000 war dead.

[lentulusgracchus]

Oh, well, you can find and post a countertext, so all of the rest of us must be wrong and can go to hell, I guess.

Care to show how that's so?

[PeoplesRepublicOfWashington]

Congress could easily put an end to such shenanigans by passing a law saying it is illegal to use foreign law to interpret the Constitution--that any attempt to do so makes the interpretation null and void, and the attemptor, by his act, a traitor.

[lentulusgracchus]

[You, quoting Trop vs. Dulles] "evolving standard of decency...."

Well, there it is. The liberals' beloved "living" (changing when we say so) Constitution. Always mutable, Squealer doesn't need his paint pot for this one. We'll just leave the words as they are, and change all the meanings instead.

Perfect. Classic liberal legal positivism.

[demkicker]

The Founding Fathers are rolling in their graves.

And these 'Supremes' are driving me to an early grave.

[mac_truck]

Abraham Lincoln relied on Federalist revisionist theories of the nature of the Union that had been compiled from Jay's and Marshall's opinions and dicta in the 1830's, in insisting on his theory of the Union that led directly to -- and justified -- his strenuous efforts to reconquer the Southern States after they seceded from the Union in 1860.

I was under the impression that Abraham Lincoln relied heavily on the views of former President and Tennessean, Andrew Jackson [among others], to assist his own understanding of Union.

Andrew Jackson could hardly be considered a Federalist, now could he?

"Without union our independence and liberty would never have been achieved; without union they never can be maintained. ... The loss of liberty, of all good government, of peace, plenty, and happiness, must inevitably follow a dissolution of the Union." --Andrew Jackson, Second Inaugural Address, 1833

[Non-Sequitur]

Oh, well, you can find and post a countertext, so all of the rest of us must be wrong and can go to hell, I guess.

Oh please don't go to hell. Arguing with you provides too much entertainment. Just watch that broad brush that you use to label people with.