Is Relying On Foreign Law An Impeachable Offense?

Eagle Forum ^ | March 16, 2005 | Phyllis Schlafly

[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.

[Non-Sequitur]

How dare you present an independent opinion after doing the full detailed research? We are lock-step, mind-numbed robots of the Rove Forces...or so I've read.

Far be it from me to pee on anyones Post Toasties, but Jesus Christ did nobody bother to read the decision?

[Modernman]

Under the Erie doctrine, there is no federal common law.

AAAGHHHHH!!! Erie Doctrine !!!!! (runs away screaming)

[KC Burke]

see post 40 that I was making reply to in mine.

[gakrak]

I have another basic question: Who or what part of our Government system can institute an Impeachment procedure against the Supreme Court Justices? Maybe we need a revolution against such basic flaws in their proceedings. Amen.

[Jim Noble]

It does not matter.

The appellate jurisdiction of the Supreme Court is "subject to such regulations...as Congress shall make".

Since there are not 218 Congressmen or 51 Senators who are willing to carry out their duty to regulate the Court, how can you begin to imagine that there could be 67 Senators who would impeach an Associate Justice?

[Dead Corpse]

The US House of Reps handles Impeachments. The USSC may be the Highest Federal Court, but they are still just a Federal court.

[Durus]

English judges and hence the common law were introduced by William the Conqueror, who came to England in 1066.

With all due respect the system of law known as "English common law" is not "English" in nature but Celtic. William the Conqueror, at his coronation, promised to uphold existing laws and customs. The Anglo-Saxon shire courts and 'hundred' courts remained intact, as did regional variations and private Anglo-Saxon jurisdictions. Of course both Norman and the Anglo-saxons cultures, being of celtic derivation, would not have found the too many differences in their legal systems. Celtic culture predates the roman empire and references to the practices of the tribal legal system can be found if one wants to look for them. Very few things can be proven to be of actual roman derivation and this isn't one of them which was my primary point.

I certainly agree that the point is mute when discussing the philosophical construct of the framers.

[fr_freak]

Far be it from me to pee on anyones Post Toasties, but...did nobody bother to read the decision?

Let me begin by saying, no, I didn't read the decision. I did, however, read Schlafly's opinion, and I am convinced that you misread or misinterpreted it. Here is the crucial point she is making:

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.

You'll notice that her accusation is not that the justices used foreign law to make their decision, but that they inserted their own personal bias into the interpretation. The key idea here is that there is no Constitutional basis for declaring that executing juveniles is illegal nationwide - the justices simply decided that they would invent such a Constitutional prohibition.

Now, the second half of Schlafly's accusation is that the justices used foreign law, unratified treaties, and non-American opinion to "rationalize" their decision, meaning that the justices cited American precedents in their decision (despite the fact that at least an equal number of American precedents could have been used to justify the exact opposite opinion) but then called upon these foreign influences to add weight and reason to their logic. Put simply, if American legal precedent were enough to justify this decision, there would be no need to cite foreign reasoning also. Regardless of the need, however, using foreign opinion and law even solely as reinforcement is grossly inappropriate in an American courtroom.

Now, do you understand the outrage yet?

[yankeedame]

I think bringing foreign laws into play in an American court is actually a capital offense.

You mean you think it is a crime that entails the death penalty??

Oh, shades of Robespierre...

[yankeedame]

"we are based on English Common law"

that is true.. and where did they get theirs from?
----------------

If I were a betting woman I would say it derived chiefly from Anglo-Saxon/Germanatic codes and customs. Roman law is more along the line of the code Napoleon etc.

[BikerNYC]

...but that they inserted their own personal bias into the interpretation.

Every judge does that in every decision. As human beings, it's impossible not to.

[PeterFinn]

"If the Supreme court makes a decision that is unconstitutional, who calls them on that?"

Anymore? No one. Their power is absolute.

[yankeedame]

NOt to start a side argument, but that would depend on your definition of "anarchy".

A movie theater full of sugared-out 4-8 year olds half way into a cartoon film festival.
(Blood runs cold at the thought)

[sevry]

Our runaway judiciary is badly in need of restraint by Congress.

I think the remedy need not even wait for Amendment in this case. If the basis that the Court uses is NOT the US Constitution, then they cannot claim that their decision was one of Constitutional Law. It simply wasn't. The Congress could reply - TODAY - now, by simply overturning the Court's verdict with legislation. Remember, the Court was not even interpreting the Constitution. It was ignoring the Constitution. The very basis for the Court is missing in such cases. The Congress can act - and ought. A Court decision without any Constitutional basis is a decision which has no meaning to any of the three branches of government.

[Non-Sequitur]

Now, do you understand the outrage yet?

No, because, once again, I actually read the decision. And what everyone is ignoring the fact that in their ruling, the Supreme Court upheld the decision of the Missouri Supreme Court that executing Simmons was cruel and unusual. How can the Supreme Court be accused of making laws when it is upholding a lower court ruling? Most states in this country (60%)have already determined that offenders under 18 should not be executed. We hold those under 18 to a different standard from adults. They cannot vote, drink, serve on juries, enlist in the miltiary without parental approval, or get married in most states without approval. Yet Missouri used the same set of standards that they use to sentence adults to death to sentence those under 18. The court ruled that such a double standard did fall under the category of cruel and unusual. The court acknowledged that there were sure to be some criminals under 18 aware enough to warrant the death penalty, but the laws would have to be crafted to do a better job of identifying those criminals were the death penalty is truly justified. Current laws don't do that.

All of which you would know had you or Ms. Schlafly read the decision.

[rudypoot]

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.

How do you think they came up with this 'world opinion' crap? The justices' percieved world opinion was based on foreign laws.

[GGpaX4DumpedTea]

"What is the proper remedy?"

Perhaps it is time for "We the People" to reenact the Declaration of Independence.

[muawiyah]

There's really no requirement at all to impeach a judge. The President would appear to have all the authority he needs to simply relieve a judge at any time.

Thomas Jefferson did that to half the federal judiciary.

[nmh]

ONLY IF we join the International World Court which Bush REFUSES to do. Kerry wanted to sign up and have us UNDER the IWC and be UNDER their punishments. It would remove our sovernity and void our Constitution etc..

[GGpaX4DumpedTea]

"Our whole legal system is based on foreign law...I am sorry, but what am I missing?"

It is true that law in other countries influenced the writers of our Constitution of the United States of America. However, there was a lot of picking and choosing during the writing of that Constitution. There are things in the Constitution that you will not find in foreign law. There were things in foreign law that differ from what was written into the Constitution.

That all being said, no body, judicial or otherwise, has the Constitutional right to revise the constitution by fiat based on any foreign law or any other law. There is an ammendment process for revising the Constitution.

There are five justices on the Supreme Court who should be impeached.