Wednesday, March 02, 2005


The Supreme Court

Obviously the big news today is the Supreme Court's ruling that juveniles cannot be put to death. While I may or may not have a problem with that, I do have a problem with US judges looking to foreign law and opinion to make their decisions. Here is what Julian over at Opinio Juris had to say:
International Law and the Juvenile Death Penalty

The Supreme Court today held that the practice of executing individuals for crimes they committed below the age of 18 is a violation of the Eighth Amendment. Justice Kennedy's opinion for the Court here includes an extended discussion of the relevance of foreign and international practice to the interpretation of the Eighth Amendment. Some highlights on this issue:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (emphasis added)

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10.11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. (emphasis added)

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 peoples simply underscores the centrality of those same rights within our own heritage of freedom.

The Court also cited:

Int. Covenant on Civil and Political Rights, Art. 6(5), 999 U. N. T. S., at 175
United Nations Convention on the Rights of the Child, Art. 37,
American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5)
African Charter on the Rights and Welfare of the Child, Art. 5(3)

I can't resist observing that the U.S. government has specifically reserved to the question of the execution of juveniles in signing and ratifying the ICCPR and in signing the Convention on the Rights of the Child. It may have done so also with the American Convention on Human Rights.

I am not sad to see the juvenile death penalty go away, but I do think it is odd that treaties to which the U.S. government specifically reserved the question at issue (the international legality of the juvenile death penalty) are being used as evidence of what the U.S. Constitution requires

One last thing: yesterday somebody told me they did not like the conservative nature of the SCOTUS. I pointed out that the Court is not conservative and I hope this ruling convinces them as well.
I would think conservatives would want to claim the idea that children should not be subject to executions as one of their core values.
If this is the kind of ruling that makes our Supreme Court "liberal," then by God we need more "liberals" on our courts.
Also, why should the fact that every other country in the world has stopped sanctioning juvenile executions be considered irrelevant in this case? I think it is a fact that we should find highly embarrassing, unless you think we are taking the lead in some moral sense by executing juveniles.
Who are we supposed to be taking the moral lead on this issue with? The fact is that many states in America approved of the use of execution in some cases for juveniles. The Court decided the case, not based on Contitutionality, but on a growing consensus. The five justices supporting the opinion have set themselves up as the final arbiters of morality in this country, a power not given to them by the Constitution.
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