Judicial ignorance

Seeking to bolster his conclusion that imposing the death penalty on juvenile murderers was unconstitutional cruel and unusual punishment, Justice Anthony Kennedy wrote last month, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty."

Certainly, "it is proper" that pundits, activists, legal scholars, politicians and guys chewing the fat in the neighborhood barbershop consider the merits of other countries' laws. Americans engaged in decades of debate after Great Britain began outlawing the slave trade in 1807. Conversely, they reacted many decades later with horror when they found out about laws that were taken for granted in places like Nazi Germany and the Soviet Union. Today, the public square resounds with animated discussions of the Canadian health-care system and the value-added-tax system used by European countries.

But it is subversive and profoundly dangerous for the Supreme Court to view international law in this fashion. Working at cross purposes to a government structure that is meant to be methodical, the court has breezily skipped the absolutely essential step of legislation.

For many Americans, sparing people who committed crimes when they were 16 or 17 "feels" right. As Justice Kennedy pointed out in his majority opinion, research into the brain functions of juveniles raises doubts that young people are fully responsible for their crimes. Maybe there oughta be a law.

In point of fact, there is a law -- 30 of them, to be precise. That's how many legislatures have outlawed the death penalty for juveniles who kill.

The high court majority relied on the Eighth Amendment for its authority, ignoring a point of disconnection that should have been obvious. One may argue it is cruel and unusual to execute a minor, but that question wasn't in play: The inmate whose fate was under consideration is 29. If executing an adult for a crime he committed 12 years ago is deemed cruel and unusual, then the death penalty should be banned. But the court didn't go that far, so the Eighth Amendment manifestly doesn't apply.

The decision was tethered to nothing but the justices' sense of U.S. public opinion and to certain foreign regulations, which have no more relevance to U.S. law than Singapore's statute requiring that some miscreants be punished by caning.

It is worrisome that Justice Kennedy isn't the only one who supports consulting foreign regulations without regard to U.S. laws. "Judges in the United States are free to consult all manner of commentary," Justice Ruth Bader Ginsburg, a Clinton appointee, said a week ago. "The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification."

This statement is simply ignorant, unworthy of a Supreme Court justice. Nobody believes the Constitution is frozen in the 18th century. Certainly, a document that was amended a dozen times in the 20th century alone, most recently in 1992, could not be described credibly as "frozen in time." Strict constructionists believe the Constitution means what it says, and that's just as true of the 1992 amendment dictating the terms of congressional salary increases as it is of the First Amendment.

Law professors Paul Carrington of Duke University and Roger Cramton of Cornell will lead a conference this weekend titled "Reforming the Supreme Court?" in Durham, N.C. Both professors believe justices should be subject to term limits to make the court less like the "temple" it has become. Their position looks pretty good as an increasingly priestly temperament takes among the justices.

Ginzburg suffers from Stockholm Syndrome. She went over to the fascists long ago.

The other night she was on C-Span justifying using foreign laws ~ her example was Justice Taney's majority opinion in Dred Scott.

She did not note that the Supreme Court has NEVER repudiated that ruling, nor did she mention that we resolved the issues only through the process of a massive bloodletting.

Her ignorance and indolence is exceeded only by that of Justice Kennedy who should know better.

Justice Ginsburg is a Marxist. She abuses language in typical Marxian doublespeak to advocate the concept of a "living constitution". The application of that concept does not create a "living constitution". It creates a dead constitution, replaced by the shifting whims of a mere five out of nine citizens, sitting in judgement on the rest of the population.

I do not advocate term limits for judges. I would prefer whatever legal means that are required to hold judges to the "original intent" of the constitution, until the people, through our democratic acts change that "intent". Whether legislation alone or constitutional amdendment, that is the only thing that forces the result we need. Term limits only limit the term of the damage they can do. Term limits do not limit the ability for them to error against the constitution.

see, again: http://www.oped.com/Current.html

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