Posted on 03/16/2005 11:19:13 AM PST by Tailgunner Joe
"By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?" So asked an incredulous Justice Antonin Scalia in response to the latest outrage by the U.S. Supreme Court.
Five activist justices (not even nine) just imposed their personal social preference on every American voter, state legislator, congressman, and juror. Adding insult to injury, the supremacist five used foreign laws, "international opinion," and even an unratified treaty to rationalize overturning more than 200 years of American law and history.
Justice Anthony Kennedy's majority opinion in Roper v. Simmons is a prime example of liberal judges changing our Constitution based on their judge-invented notion that its meaning is "evolving." He presumed to rewrite the Eighth Amendment.
The murder involved in this case was particularly heinous. Christopher Simmons persuaded a fellow teenager to help him commit a brutal murder after assuring him they could "get away with it" because they were both under age eighteen.
Simmons met his pal at 2 a.m. and they broke into Shirley Crook's home as she slept. Simmons and his fellow teenager bound her hands, covered her eyes with duct tape, put her in her own minivan, and drove to a state park.
There they hog-tied her hands and feet together with electrical wire, wrapped her entire face in duct tape, and threw her body from a railroad trestle into the Meramec River. Mrs. Crook drowned helplessly, and her body was found later by fishermen.
Showing no remorse, Simmons bragged about his killing to his friends, declaring that he did it "because the bitch seen my face." He confessed quickly after his arrest and even agreed to reenact the crime on video.
A jury of his peers listened to his attorney's argument that youthful indiscretion should mitigate punishment; the jury observed Simmons' demeanor at trial and heard from a slew of witnesses. After an exhaustive trial and full consideration of age as a factor, the jury and judge imposed the death sentence as allowed by Missouri law.
The American system allows a jury to recommend life-or-death following due process and the applicable law enacted by the representatives of the people of the state. Nothing in the text or history of the Eighth Amendment denies Missouri juries and state legislatures the right to make this decision.
The Supreme Court's main argument was the "trend" since 1989 that seven countries (Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Congo, and China) have banned juvenile capital punishment. Justices Kennedy, Ginsburg, Breyer, Stevens and Souter changed U.S. law so we can follow the lead of those seven countries.
Only four U.S. states have legislated against the juvenile death penalty since 1989 (but none of them was executing juveniles anyway). On the other hand, Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, Utah and Virginia all allow the death penalty for a seventeen-year-old who commits a particularly shocking murder.
The supremacist five claimed that most other countries don't execute seventeen-year-olds. However, most other countries don't have capital punishment at all, so there is no distinction between seventeen- and eighteen-year-olds.
Furthermore, most other countries don't allow jury trials or other Bill of Rights guarantees, so who knows if the accused ever gets what we would call a fair trial? Over 90 percent of jury trials are in the United States, and we certainly don't want to conform to non-jury-trial countries.
The supremacist five must think they can dictate evolution of the meaning of treaties as well as of the text of the Constitution.
They cited the United Nations Convention on the Rights of the Child, which our Senate year after year has refused to ratify. They also cited the International Covenant on Civil and Political Rights, which we ratified only with a reservation specifically excluding the matter of juvenile capital punishment.
DC sniper Lee Malvo was seventeen during his infamous killing rampage, so now serial killers like him won't have to worry about the death penalty. The terrorists and the vicious Salvadoran gangs will be able to assign seventeen-year-olds as their hit men so they can "get away with it."
We recall that the Supreme Court ruled in Planned Parenthood v. Casey in 1992 that it could not overturnRoe v. Wade because that might undermine "the Court's legitimacy." But in the Simmons case, the Court flatly overturned its own decision about juvenile capital punishment in Stanford v. Kentucky only 16 years ago.
As Justice Scalia pointed out in dissent, the Court's invocation of foreign law is both contrived and disingenuous. The big majority of countries reject U.S.-style abortion on demand, so the supremacist justices conveniently omitted that "international opinion."
Our runaway judiciary is badly in need of restraint by Congress. A good place to start would be a law declaring it an impeachable offense for justices to rely on foreign law in overriding the U.S. Constitution or congressional or state law.
Impeachable offense is whatever the congress says is impeachable.
Rep. Alcee Hastings (d) was a federal judge and he was impeached and removed from office because of a scandal involving gold plated plumbing fixtures. Then he became Rep. Hastings.
If congress decided they did not like Gingsbergs eyeglass frames they could impeach her. More likely they will find an excuse, vote, and boot her out.
However any impeachment involves a requirement in intestinal fotitude.
I do think that relying on unratified treaties is not only leagally unsupportable, it is also morally repugnant and an insult to the profession they purport to hold in high regard.
I think these justices who voted for Europe over the USA are doing this as a desperation move because they see the leftist days as numbered.
You will have a much stronger case when one day they directly take foreign law above our own while disregard our own law. That did not happen here.
There are only two instances where consideration of foreign law is valid, one has to do with interpretation of treaties and the other is to seek the original meaning of a phrase contained in our constitution such as "due process". That's it.
Do you think foreign laws and or moral precepts should be authoritative in SCOTUS' holdings?
If not, then why the heck should they cite them?
Citing foreign mores and/or court cases should hold NO sway in holdings of the SCOTUS, they are bound by their oath and the Constitution for their controlling authority to be the "Supreme Law of the Land". The Supreme LAw of the LAnd is the Constitution and those laws passed by the United States Congress. That's it, end of story.
And painting their bodies blue besides. Hey, they would love that in the Gay Pride parade
It is treason!
dave I defer to your knowledge of the gay parade, lol!
It's not the decision people are mad about. It's using foreign laws to interpret the Constitution. Not to mention declaring a percieved national opinion a law.
From Kennedy's opinion:
"The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions"
I've looked at the opinion a few times. I haven't seen any passages where the opinion relies on foreign law for its decisions.
Judge Hastings was convicted on two Articles of Impeachment: perjury and conspiracy to obtain a bribe.
Bump for later read.
I am sorry, but what am I missing?
The difference between the United States Constitution and the common law. Common law has its roots in history, especially the English common law. There is, howevere, no FEDERAL common law. Common law is a state concept. Under the Erie doctrine, there is no federal common law.
Historical law may have influenced the Framers when they wrote the U.S. Constitution, but the law of the Constitution is found in its text, not in historical precepts. The Constitution says what it says. Federal statutes say what they say. They are not concepts that evolved, they are legislative enactments that can only be interpreted from the text.
I agree. It should be treated as treason. However, in this case. I would prefer to impeach the Justices for violating their oath to uphold the Constitution of the United States.
Very good point. But they stressed it wasn’t controlling their outcome.
I will agree that they are skating on thin ice but I don’t see this as a strong case against them.
State common law is based on English common law. The U.S. Constituion is based on a document drafted and voted on in Philadelphia, and democratically approved by the several states.
No, I was thinking AMERICAN LAW would be a good start.
At the very least it's a legal nullity and calls for purposeful disobedience on the part of state and local law enforcement.
Now Phyllis is recommending impeachment for use of foreign laws - meaning those laws and governances NOT adopted by the legislature of the US, but other legislatures (and not necessarily currently existing legislatures)
Some posters are getting a bit hung up on where America got its laws from. Doesn't matter. What matters is what laws it has adopted - those are what the courts should be judging, and are the only things that fall within their competence. Phyllis is onto something - if its possible to impeach a President for doing his job badly (and it is), then it's certainly possible to impeach a judge.
Well said.
I may be wrong, but I do not think so. The Roman Republic predates Christ, as did the death of Julius Caesar. IIRC, the English judges and hence the common law were introduced by William the Conqueror, who came to England in 1066.
Not that either has any business even being discussed as enlioghtening on what the Framers were thinking, or the citizens who ratified the Constituion. Just an academic point.
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Thanks ;-)
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