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March 02, 2005

More International Precedent From SCOTUS

As usual, Tony Blankely minces no words regarding Roper v. Simmons:

The gist of the majority's analysis is that whether the crime is constitutionally "unusual" depends on whether "evolving standards of decency" have reached the point in our history when such punishment has been clearly rejected by society. It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged. The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago.

As Justice Antonin Scalia fumed in his dissent: "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time." In this case, a majority of relevant states approve the practice.

Recognizing that they were arguing a rather weak set of facts regarding a national consensus, the majority supplemented its argument with the self-aggrandizing assertion that "In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the 8th Amendment." Outrageously, the court asserts such power because, as Justice Scalia characterized, "juries cannot be trusted with the delicate task of weighing a defendant's youth along with other mitigating factors." This assertion, of course, undermines "the very foundations of our capital sentencing system."

The majority, still sensing its arguments to be rather feeble, went on to try to buttress their case further by citing a menagerie of international treaties and foreign laws, claiming: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

In support thereof they cited, inter alia, the U.N. Convention on the Rights of the Child, a treaty before signing which, the U.S. government expressly reserved "the right ... to impose capital punishment on any person (other than a pregnant woman)." To which Justice Scalia observed in his dissent: "Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, [the majority's] position."

After Justice Kennedy used five pages of his logically incoherent majority opinion to cite a hodge podge of foreign laws, he limply and defensively concluded his opinion: "It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and people simply underscores the centrality of those same rights within our own heritage of freedom."

When a Supreme Court justice feels it necessary to write as the closing words of his opinion that he still holds fidelity to the Constitution, it is more than reasonable to assume he knows he has just betrayed that sacred document. But at least he has vouchsafed his popularity at liberal cocktail parties for another year.

The WSJ takes a somewhat more measured view:

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we'd probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."
Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles--and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.

Posted by Cassandra at March 2, 2005 08:08 AM

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» Entirely predictable from Vote for Judges
Kennedy also, again, wrote a majority opinion overturning recent precedent. Lawrence overturned the 1986 decision in Bowers v. Georgia. Roper overturns the court's 1989 decision in Stanford v. Kentucky. In other words, if we're liberalizing U.S. l... [Read More]

Tracked on March 2, 2005 10:57 AM


So, if a jury can't be trusted to determine the youth and other mitigating factors, then why have the trial or why have the jury? Helk, let's just have vigilante style justice!

And I thought the states could make that decision for themselves, and not have the Supremes make the decision for them.

Punsihment for juvenile offenders? Oh perish the thought that the little darlings would EVER have to face the consequences of their actions, intended or otherwise. It is called being accountable and responsible. Okay, so the states decide not to fry the perps but give them life, or a thirty year sentence.

Can we at least send them to Mericopa County?

I am having a real hard time with this because after the age of 16, most boys are adults minus the experience of a thirty year old. They can't enter into contracts unless their parents sign for them, nor can they vote, drink or operate heavy equipment. But they can kill.

And if they do, they should be held to account.

Posted by: Cricket at March 2, 2005 10:29 AM

And if the world community isn't influencing the Royal Outcome, then why bother to cite it? I thought the states had that right.

Posted by: Cricket at March 2, 2005 10:30 AM

I always knew The Hague was responsible for the demise of this year's NHL season.


Posted by: Ciggy at March 2, 2005 11:11 AM

Where's spd rdr?
He's got to have an opinion on this.

Posted by: Don Brouhaha at March 2, 2005 12:52 PM

Don, I have a feeling you're going to have to resign yourself to a rdrless future. Somehow we will all just have to bravely soldier on.

Posted by: Cassandra at March 2, 2005 01:13 PM

Is spd all right? I miss him. I was thinking we hadn't seen him around awhile. Hope all is well with him and the rdrtts.

Posted by: Cricket at March 2, 2005 01:18 PM

rdrless future????

Huh? What? Say it aint so!

Posted by: Pile On® at March 2, 2005 01:19 PM

I have no idea. I'm sure he's fine - I was just referring to the fact that he hadn't been around.

Posted by: Cassandra at March 2, 2005 01:31 PM


Okay, I have quit demanding.

Posted by: Cricket at March 2, 2005 01:42 PM

KJ is in Salt Lake City, which I would not disclose except he mentioned it in a comment so I don't feel like it's a secret. He should be back later in the week. He just has some work to do.

And mr. rdr is under no obligation to inform anyone of his whereabouts. I merely made an observation. Sorry if I upset anyone - I didn't mean to.

Posted by: Cassandra at March 2, 2005 01:55 PM

I hope he hasn't been arrested.

Posted by: Pile On® at March 2, 2005 02:23 PM

KJ in Salt Lake City? Does Utah have an extradition treaty with Georgia? He will have fun there. Lots to do. He can go to Welfare Square and study up on wheat storage, or he can eat lunch at the Lion House, or attempt to sprint across the street when no one is coming.

I know it was sensory overload when I was at the U...deciding which color of Jello to eat for dessert, or which DI store to buy clothes at.

Sometimes I would look at Antelope Island and attempt to get into the mind of the buffalo.

Yes, there is much for KJ to occupy his time...
unless he is up at Park City or Snowbird and skiing his little heart out. In which case I hope he is bored spitless.

(just snarking away and really missing the snow.)

Posted by: Cricket at March 2, 2005 02:32 PM

I hope KJ manages to get in some fun while he's there - he deserves it. If you want snow Cricket, c'mon up here - I have plenty. I'll be happy to share with you.

Posted by: Cassandra at March 2, 2005 02:36 PM

Anyone doubt that--as Dr. Dobson of Focus on the Family has said--Kennedy is the most dangerous man in the country? He was the swing vote for, and the majority-opinion author of, yesterday's judicial mugging. The Kennedy-led Fab Five invalidated the laws of 19 states with the stroke of a pen because they don't like capital punishment for minors, they will accept only their own prejudices on the subject, and only they have the power to put such prejudices on paper and call them "constitutional jurisprudence". In short, "in your face".

Note that the other, "co-equal" branches of the federal government have reacted to this latest judicial usurpation of their powers and assault on the principle of federalism in their accustomed manner: Deafening silence, followed by craven acceptance and inaction.

If Congress and the Presidency were not inhabited by invertebrates, they could employ the "nuclear option" in the US Constitution (Art. III, sec. 2), inserted there to allow the elected branches of government to curb an unelected, power-lust-infected judiciary. That provision allows Congress to pass legislation, which would be enacted into law by the President's signature, divesting the US Supreme Court of appellate jurisdiction over entire classes of cases and controversies. Were the Black-Robed Tyrants to hold such a statute "unconstitutional", then sterner measures viz., impeachment, would be in order.

But, as the late Conway Twitty warbled, "It's Only Make-Believe". Count on the elected branches, so proactive when fulminating about the WOT or Social Security reform, to bend over meekly as the Judicial Cabal sodomizes them (another "constitutional" right since Kennedy's lead opinion in Lawrence v. Texas). Heck, they won't even ask for KY Jelly™. "Thank you, sir! May I have another?"

Posted by: The Great Santini at March 2, 2005 02:50 PM

Hey, I just might. I love snow and would love to see the Beast (and you too). Even though the cold bothers me every now and then, a really cold snowy day always did set well with me.

It made spring that much more glorious.

Four seasons...enjoy it.

Posted by: Cricket at March 2, 2005 03:02 PM

Hmmmm! A (non)Constitutional ruling based on "National Concensus" and "International Opinion". There is no basis in Constitutional Law for the ruling what-so-ever. Mob rule wins out with an added helping of "International" guidance. We have now taken a giant step toward a true democracy. Lynch mobbers unite! Down with the Rule of Law! Long Live the Republic!

Heh! T-minus 25 years and counting. Although I must say that, after this major advancement of true mob rule, we can certainly advance my 25 destruction timetable by at least 10 years! Woo-Hoo!

"The regular distribution of power into distinct departments; the
introduction of legislative balances and checks; the institution
of courts composed of judges holding their offices during good
; the representation of the people in the legislature by
deputies of their own election.... They are means, and powerful
means, by which the excellences of republican government may be
retained and its imperfections lessened or avoided." --Alexander
Hamilton, Federalist No. 9

"Against the insidious wiles of foreign influence, (I conjure you
to believe me fellow citizens) the jealousy of a free people ought
to be constantly awake; since history and experience prove that
foreign influence is one of the most baneful foes of Republican
Government." --George Washington

Posted by: JarheadDad at March 2, 2005 03:27 PM

Okay, as I understand it, the reason you can't put someone who committed a brutal murder at age 17 and 364 days to death as opposed to someone who committed a brutal murder at age 18 years and 1 day is because the former doesn't have the judgment to know the consequences of his actions.

Okay, by that logic, how can you lock the 17yr/364 day old up in prison either?

Posted by: V the K at March 2, 2005 04:18 PM

This is why the Republican senators need to develop a spine and stop the dimocrat stonewalling tactics on judicial nominees.

My fury at the usurpation of our precious freedoms by dictatorial wannabees on the Supreme Court knows no bounds.

Long ago, the world did not know freedom. The people were governed by the whims and fancies of kings and aristocrats. Justice did not matter. If the king or one of your "betters" wanted you killed or imprisoned, then that's what occurred. You had no rights or liberties. Your life or well-being depended solely upon the king's mood that day.

America rejected that lawless system, even though it was ubiquitous throughout Europe and the rest of the world. We did not meekly follow the traditional, world-wide system of tyranny, but specifically REJECTED the prevailing worldview to follow a better way; the way of freedom.

America established a written Constitution to hold despots at bay, and a written system of laws to preserve and protect the hardwon freedoms and liberties of the people. The Constitution became the highest law of the land, rather than the whims of the powerful. ALL were held accountable to an objective set of laws, and no one was above the law.

This decision is the worst type of judicial activism, because it undermines the very foundations of our Republic. It says that the Constitution, and our laws derived from it are meaningless. Instead, only the whims of 5 members of the Supreme Court matter.

Further, such whims need not be based upon any law, or even logic, but can be completely arbitrary. If these 5 oligarchs believe that we should follow the latest european fad, then they can order us to do so and we must obey without question. This is a return to the "divine right of kings" concept, and is a giant step backward for human liberty and freedom.

Liberals, with their notion that the end always justifies the means as long as liberal ends are advanced, are blind to the consequences of their attacks on our justice system. Its not THEIR ox that is being gored, and who cares about non-liberals anyway. Those whose only concern is the accumulation and exercise of power are rarely troubled by concepts like morality and justice (i.e. the old "you can't make an omellete without breaking some eggs" cliche).

Sooner or later, some would-be despot will take advantage of the liberals' destruction of our freedoms and turn the tables on them. What if the Supreme Court oligarchs, led by Chief Justice Ibrahim Massoud, a few years down the road, declare that women will no longer be allowed to vote? After all, in many parts of the world, particularly Islam, women have little or no rights at all, much less voting rights. Let's be more like them! Yes, yes, there is a tiresome little amendment that says women can vote, but what does that matter against the personal whims of a Supreme Court Justice?

The Court need only do what it always does: namely, ignore the clear language of the Constitution to impose a diametrically opposite meaning which exhists only in the Justices fevered imaginations.

The Court is the least democratic branch of government, but it has accumulated the greatest amount of power, mainly due to the cowardice of the executive and legislative branches in standing up to it. This needs to change. if the people's representatives lack the courage or will to do what is right, then the people need to rise up on their own.

If a people will not lift a finger to defend their freedoms, then they deserve to lose it. Eventually, their children or grandchildren will relearn the all-important lesson that freedom isn't free, after much blood, sweat, and misery to free themselves from the tyranny their somnolent parents allowed to take control.

This has occurred many time in the past, and the results have not been pretty. The Germans were once one of the most democratic people in Europe, but gave it all away to willingly follow the sweet promises of Adolph Hitler (remember Hitler was freely elected), with tragic consequences for Germany and the World. Other examples include Russia, France, Italy, Japan, Cambodia, Zimbabwe, Ethiopia, Somalia, etc.

In each of these countries, dictators were allowed to come to power and usurp the existing rights or liberties of the people. In none of these cases were the people better off for the exchange, but came to bitterly regret it.

The Court, is taking us down the same tyrannical path, but doing so in an incremental fashion rather than one fell swoop. Nevertheless, the final destination is the same.

Posted by: a former european at March 2, 2005 06:10 PM

AFE, you are right on the money here.

Posted by: Cricket at March 2, 2005 09:45 PM

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