Posted on 03/03/2005 10:48:28 PM PST by goldstategop
So now the U.S. Supreme Court is writing decisions based on what Our Betters in Europe think is best. That's what the Big Bench did on Tuesday when it issued a 5-4 decision, written by Justice Anthony Kennedy, overturning the death penalty for crimes committed by minors.
Let me stipulate. The outcome -- an end to executions of those who committed crimes as minors -- isn't what bothers me here. There is an argument to be made that, as per the Eighth Amendment, it is "cruel and unusual" to execute those convicted of crimes committed when they were minors. Minors, as Kennedy put it, are "categorically less culpable than the average criminal."
But the court didn't limit its guidance to the U.S. Constitution. Kennedy wrote that the court can and should consider "the overwhelming weight of international opinion against the juvenile death penalty," including opposition among "leading members of the Western European community."
Be afraid, America. Be very afraid. European Union countries don't simply oppose capital punishment; they also oppose life without parole and mete out notoriously short sentences for heinous crimes. In recent years, a German court essentially sentenced a man who killed and ate another man -- the killer was so proud he videotaped everything -- to eight and a half years in prison. He is expected to walk free after five years.
The International Criminal Tribunal on Yugoslavia found a Bosnian Serb colonel guilty of aiding and abetting the genocide that resulted in thousands of deaths. His sentence: 18 years.
Don't blame European juries. Judges made the above rulings, on a continent where juries get little respect.
If you're wondering who died and made Justice Kennedy -- or Western Europe -- king, consider that Kennedy also referred to the U.N. Convention on the Rights of the Child that prohibited the execution of minors -- even though the United States failed to ratify that treaty. The definition of an activist judge could be a judge who calls on the government to adhere to a treaty it rejected.
Kennedy wasn't even on solid ground factually. "In sum," he wrote, "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."
"That's not quite true," said University of California at Berkeley professor Franklin E. Zimring, who was quoted extensively in The New York Times in support of Kennedy's continental leanings. Iranian law prohibits executions of minors but considers a 10-year-old girl to be an adult, Zimring noted. In 2004, The Christian Science Monitor reported that five countries -- United States, China, Pakistan, Iran and Democratic Republic of Congo -- executed minors in the previous five years.
Michael Rushford of the pro-death penalty Criminal Justice Legal Foundation admitted that the roster of countries that still have the death penalty for adults doesn't exactly "help the pro-death penalty cause," as many of those countries don't cherish the notion of freedom. On the other hand, America does not own those countries' abuses. In the meantime, Rushford noted, "The Supreme Court has now said we're all going to wear the same socks and we're going to decide what a jury can decide."
That is the European Union model. Same socks. And jurors aren't welcome.
Kennedy also cited a "national consensus" in America against the juvenile-death penalty as a reason to overturn it. I must ask: Since when has the court issued rulings based on what average folk think?
Besides, if the Supreme Court did care what people thought, it wouldn't be looking to Europe to decipher the U.S. Constitution.
Zimring told me that the issue here isn't the 72 death-row inmates who committed capital murder as minors. Conservatives bristle at the mention of Europe, he explained, because, "As soon as you internationalize the discourse of capital punishment, then Arkansas no longer has a point."
That's right. But what else will Americans have to give up? Zimring noted that the United Nations has forced countries to end the juvenile-death penalty and the European Union forced Turkey to end capital punishment. He noted that the other countries complied for economic, not moral reasons.
Now, when countries have buckled to this pressure for the money, an America court interprets their surrender as an international trend against the death penalty. That is the EU way. Force dissenters to go along. Then boast that you have a consensus.
Individual rights? They're not high on the EU list. Then again, neither is punishment.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Anthony Kennedy is a world class scoundrel. May the blood spilled by youthful murderers torment his empty head and perverse soul.
This whole line of argument rather irritates me. Not because I think international law should have any bearing on U.S. constitutional law, but because the 8th Amendment is in fact designed to be the only really subjective part of the document. There is no way to define a "cruel and unusual" punishment except by comparison to punishments in other times and places - whether in practice or in theory.
Debra says almost all of it right. However, I take her to task for saying the following:
A There is an argument to be made that, as per the Eighth Amendment, it is "cruel and unusual" to execute those convicted of crimes committed when they were minors.
Were the victims of these "minors" treated humanely? Matter of fact, these minors had received a death sentence because they had acted like animals and deserved to be removed from society permanently. Debra needs to talk to the relatives of those who were so "cruelly and unusually" executed by these minors. Maybe, just maybe, she would see it from the other side.
The SCOTUS is acting like the 9th circus pimp court now.It's time for term limit on these clowns.
The SCOTUS is acting like the 9th circus pimp court now.It's time for term limit on these clowns.
Congress has the power to overrule SCOTUS but they hide behind the "we don't want to offend the SCOTUS". Besides, the demorats love the decisions coming out of the court.
There is a Republican majority and those who voted to elect Republicans deserve their votes to count in the conduct of Senators with respect to the appointment of judges.
For anyone who has studied the issue, Zimring is one of 'the guys'. He's been writing on the question of capital crimes for decades, and I believe his book, Deterrence (with Hawkins), is something of a law-school standard. Unfortunately, if I recall, he's also something of a lib for all his utilitarian empiricism (i.e. deterrence). I believe he ultimately opposes the death penalty. In good conscience, as a traditionalist Catholic, I cannot oppose the use of the death penalty, where warranted.
I thought that could only be done by Constitutional Amendment? These are supposedly Constitutional cases, even though the complaint this week is that it isn't the Constitution which is principally being consulted (this lib majority of SIX justices can't find the results they want there).
Now - BECAUSE OF THAT - perhaps Congress COULD . . make an issue of restraining the Court on the basis that the Court itself no longer uses the Constitution as norm, and so is intruding into the Legislative power which the House, at least, might move to control. Could be interesting. Depends on how they go about it.
Here is a good summation of the power of Congress in regards to overruling the SCOTUS. Hope this helps to clarify:
http://www.prospect.org/web/page.ww?section=root&name=ViewPrint&articleId=5860
Not really. Again, here's the con that the Court promotes. It claims to use a Constitutional basis. That's not subject to any new Congressional legislation if the same Court is prepared to strike down that legislation on appeal. The 'silly six' are literally asserting that this is Constitutional. That's what the Court does.
But I suggested that as - in reality - and according to the wording of their own majority opinion - they ARE NOT using the Constitution as the norm, that based on that, the Congress ought to take them at their word. If the Judiciary is openingly attempting to seize the Legislative power, and by the words of their own opinion, if the Constitution is even now to them irrelevant in some non-trivial way, then it just seems to me that the Congress might well, in that situation, have a Constitutional power to check the Court. I'm just not quite sure how. But perhaps a bill could contain wording specifically pointing to particular decisions, and declaring these null and void according to the Legislative on the basis that these were NOT Constitutionally-based Court decisions!
But perhaps a bill could contain wording specifically pointing to particular decisions, and declaring these null and void according to the Legislative on the basis that these were NOT Constitutionally-based Court decisions!
And how is that going to happen since the SCOTUS says that they rule according to the Constitution? We know they don't but they say they do and once again the supreme law of the land wins.
What I'm saying, and said already, is that is supposed to be the norm. But that in these cases people legitimately complain, based on the wording of the majority opinion itself, that the Court is NOT using the Constitution as the norm. Thus these, in that real way, are NOT Constitutionally-based decisions. They SHOULD be. And there should be consequences for the Court if they are not. The Legislative branch may well have a role to play. We'll see.
But that in these cases people legitimately complain, based on the wording of the majority opinion itself, that the Court is NOT using the Constitution as the norm.
People can complain all they want. If the COURT says it it unconstitutional or constitutional the people have no claim. Sad but true.
Then the basis for that - HAD BETTER BE THE US CONSTITUTION!
Because if it's not, if the Court is departing from its own norm and attempting to seize the Legislative power, even a super-legislative power to craft the Court's OWN constitution, then under our system of checks and balances the Legislative should respond to reign in a rogue, liberal Court. You have what appears to be a super-liberal majority on the Court, right now, sadly thanks to two turn-coat Reagan appointees. But if Pres. Bush can appoint even just three Justices, all who swear to use the US Constitution and only that, and that understanding of a republic and common law existing in the time of the Founders, then we might finally see a legacy that Reagan and the elder Bush were unable to achieve.
Because if it's not, if the Court is departing from its own norm and attempting to seize the Legislative power,
Been there, done that. And continuing to do it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.