Posted on 10/23/2004 2:44:37 PM PDT by Ed Current
WASHINGTON – A few minutes into the oral argument over the juvenile death penalty last week at the US Supreme Court, Justice Anthony Kennedy posed a question. He wondered whether significant international opposition to juvenile executions should influence how an American justice interprets the Constitution's prohibition against cruel and unusual punishment.
"Does that have a bearing on what is unusual?" Justice Kennedy asked
The query was aimed at a government lawyer, but it could have just as well been directed to the court itself.
How the court approaches Kennedy's question is important for two reasons. First, it highlights an emerging trend on the nation's highest court in which a majority of justices are increasingly willing to cite international law and foreign judgments to support their decisions. Second, with substantial opposition to capital punishment in Europe and elsewhere, it could play a key role in determining the outcome of the juvenile death-penalty case.
"I think the way Justice Kennedy asked his question was telling," says Richard Wilson, a law professor at American University in Washington who attended the court session. "He asked about whether the word 'unusual' in the Eighth Amendment phrase 'cruel and unusual' ... refers to 'unusual' in the United States, or is it 'unusual' in the world?" Where the justices stand
Currently, six of the justices - including Justices Kennedy and Sandra Day O'Connor - support using references to international law in decisions. Three justices have announced opposition to the trend.
Critics view this growing internationalist approach as a potential source of unrestrained judicial activism. They say it is being driven by justices willing to use international law as cover to impose their own policy preferences rather than remaining faithful to the original intent of the Constitution's framers.
Supporters of the trend see it as a progressive safeguard to fundamental freedoms, with justices seeking to broaden their horizons beyond the parochial interests of a single country in recognition of international legal norms that reflect the shared values of mankind.
"What the court is saying is we can look to the world community for guidance and not to put blinders on to what is happening in the rest of the world," says Professor Wilson, who wrote a friend-of-the-court brief on behalf of 48 countries urging the justices to declare the juvenile death penalty unconstitutional.
The court is sharply divided on that question. Four justices had earlier announced their willingness to strike down the juvenile death penalty. Three others seem just as determined to uphold it. That leaves Justices O'Connor and Kennedy in the middle, with one of them potentially wielding the deciding fifth vote.
Given that both justices are apparently open to looking overseas for support in key cases, the international aspect of the case could prove decisive.
In the past four years, only five countries have executed individuals for crimes they committed when younger than 18 - the Democratic Republic of Congo, China, Iran, Pakistan, and the United States, according to a friend-of-the-court brief. It adds that all but two countries - Somalia and the US - have ratified the UN's Convention on the Rights of the Child, which bars capital punishment for juveniles.
To supporters of the juvenile death penalty and other legal analysts, such evidence of international rejection of juvenile executions should be irrelevant to US constitutional analysis. "Why should we care what foreign countries think our Constitution means?" asks John Yoo, a professor at Boalt Hall School of Law at the University of California in Berkeley.
"We could certainly ask them what they think their constitution means, but they are not part of our political community. And that is what the Constitution does - it recognizes a political community and establishes its rules for self-government," Professor Yoo says.
Tom Geraghty has a different view. "All countries with our tradition of jurisprudence have decided that the application of the death penalty to juveniles is violative of human rights norms," says Mr. Geraghty of the Bluhm Legal Clinic at Northwestern University School of Law in Chicago.
He wrote a friend-of-the-court brief on behalf of 13 individuals and four organizations awarded the Nobel Peace Prize. The brief urges an end to the juvenile death penalty. "The Nobel Peace Prize and its winners are a testament to the relevance of global opinion and practice in the area of human rights, and the importance of respecting internationally accepted standards of morality," Geraghty's brief says. Supreme Court repartee
Supreme Court justices have long cited international decisions. But several cases in recent years have not only raised red flags among critics but also prompted dissents from within the court itself.
In 2002, when the court struck down the death penalty for mentally retarded individuals, Justice John Paul Stevens noted in his majority opinion that the practice was "overwhelmingly disapproved" within the world community. That drew a response from Chief Justice William Rehnquist: "I fail to see ... how the views of other countries regarding the punishment of their citizens provide any support for the court's ultimate determination."
In October 2002, Justice Stephen Breyer cited decisions of three foreign courts - the British Privy Council, the European Court of Human Rights, and the Supreme Court of Canada - supporting legal principles he felt should be applied in the case of a US death-row inmate: "Just as attention to the judgment of other nations can help Congress determine the justice and propriety of America's measures, so it can help guide this court when it decides whether a particular punishment violates the Eighth Amendment."
Justice Clarence Thomas, in a written reply, responded: "While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this court's Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans."
In June 2003, Kennedy cited a decision by the European Court of Human Rights for support in his landmark decision upholding gay rights in a Texas case: "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."
In a dissent, Justice Antonin Scalia replied: "Constitutional entitlements do not spring into existence ... as the court seems to believe, because foreign nations decriminalize [homosexual] conduct."
Neither the Supreme Court of the United States nor any lower Federal court shall, in the purported exercise of judicial power to interpret and apply the Constitution of the United States, employ the constitution, laws, administrative rules, executive orders, directives, policies, or judicial decisions of any international organization or foreign state, except for the English constitutional and common law or other sources of law relied upon by the Framers of the Constitution of the United States.
Clear basis for impeachment. Their oath is to our Constitution.
Impeachment? Come on, now. Clinton got away without being impeached, why can't they?
Impeach them.
FMCDH(BITS)
I have updated my FMCDH (From My Cold Dead Hands) sign-off with the addition of (BITS).....Blood In The Streets, which I foresee coming soon, due to the enormous increase of the Marxist progressive movement being shoved down the throat of this failing REPUBLIC through the Judicial tyranny of fiat law, the passing of unconstitutional laws by the Legislative and Executive branches of our government and the enormous tax burden placed upon the average American to support unconstitutional programs put forth by Marxist ideology.
FMCDH(BITS)
I have updated my FMCDH (From My Cold Dead Hands) sign-off with the addition of (BITS).....Blood In The Streets, which I foresee coming soon, due to the enormous increase of the Marxist progressive movement being shoved down the throat of this failing REPUBLIC through the Judicial tyranny of fiat law, the passing of unconstitutional laws by the Legislative and Executive branches of our government and the enormous tax burden placed upon the average American to support unconstitutional programs put forth by Marxist ideology.
FMCDH(BITS)
I got into an argument with somebody here about this very subject back awhile ago. They thought this idea was stupid.
Our forefathers fought to get away from European law, and now tyrants are once again attempting to force it down our throats.
There is a Constitutional remedy of last resort.
"VindiciaeVindiciae Contra Tyrannos , therefore, does not argue for anarchy. It recommends resistance to tyranny based upon the authority of lower officers of the state. As such, it should be considered an argument for a conservative revolution." Quoted from Prof. Stanley Bamberg, Ph.D, "A Footnote to the Political Theory of John Adams, Vindiciae contra tyrannos," Center for the Advancement of Paleo Orthodoxy, Premise, Volume III, Number 7 / August 31, 1996.
Freedom Virtually Ends Genocide And Mass Murder :
By shooting, drowning, burying alive, stabbing, torture, beating, suffocation, starvation, exposure, poison, crushing, and other countless ways that lives can be wiped out, governments have killed unarmed and helpless people. Intentionally. With forethought. This is murder. It is democide.
...democide is a government's murder of people for whatever reason; genocide is the murder of people because of their race, ethnicity, religion, nationality, or language.
Part of this reluctance to call a government or its ruler a murderer comes from the fact that to do so is a new and strange thought. Democide is a black hole in our textbooks, college teaching, and social science research. Few people know the extent to which governments murder people.
Note that at the workers' level, this was not an act of massacre by the uneducated, undisciplined masses, ordinary folk easily misled and aroused. As with the Holocaust, when Nazi killing squads were often led and composed of Ph.Ds and other professionals, the claims of the powerful and authoritative easily swayed the well educated to murder. In the Great Genocide, Hutu lawyers, teachers, professors, medical doctors, journalists, and other professionals, made their contribution to the methodical annihilation of the Tutsi or defiant Hutu.
What connects all these cases of democide is this: as a government's power is more unrestrained, as its power reaches into all the corners of culture and society, the more likely it is to kill its own citizens. As a governing elite has the power to do whatever it wants, whether to satisfy its most personal wishes, or to pursue what it believes is right and true, it may do so whatever the cost in lives. Here, power is the necessary condition for mass murder. Once an elite has full authority, other causes and conditions can operate to bring about the immediate genocide, terrorism, massacres, or whatever killing the members of an elite feel is warranted.
The Revolutionary Second Amendment written by Brent J. McIntosh, Law Clerk, Hon. Dennis Jacobs, United States Court of Appeals for the Second Circuit:
The revolutionary understanding of the Second Amendment is founded on the idea that the right to bear arms exists to protect the American populace from governmental tyranny. The revolutionary right to bear arms is premised on the normative assertion that while representative government will generally ensure non-tyrannical governance, it is still imperative that the populace retain the means with which to effectuate the most drastic of representative actions: the overthrow of an antidemocratic regime. If other vehicles for popular control of the government (particularly the vote) fail, the right to alter or abolish the government ensures that the citizenry possesses the ultimate trump card in the interaction between the governing and the governed. This so-called "right of revolution"(19) is a fundamentally collective right; it does not exist for just any dissatisfied citizen to attempt overthrow of the government.(20)
Hot Topics - visionforum.org Black's Law Dictionary: Interposition
"The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government.
The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. Historically, the doctrine emanated from Chisholm v. Georgia, 2 Dallas 419, wherein the state of Georgia, when sued in the Supreme Court by a private citizen of another state, entered a remonstrance and declined to recognize the court's jurisdiction. Amendment 11 validated Georgia's position.
Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance."
Yeah, my mistake. Clinton got impeached and didnt get convicted. That's the point of even impeaching these guys, though? They won't get convicted and it'll be another tragic loss for the American constitution.
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