American Exceptionalism in Law: Not Only For Conservatives
There has been a remarkable revolution in American law over the last twenty years.
Due to the vitality of our civil society and the innate genius of small jurisdictions with real power, the liberal academic elite in our country were not able to fully dominate the legal world the way they did in neighboring Canada or the United Kingdom. As a result, smaller law schools and organizations like the Federalist Society were able to thrive in the background, providing an all-important refuge for conservative lawyers and law professors during the liberal ascendancy of the 60’s and 70’s.
Throughout the 80’s this movement picked up force. Like so many other aspects of the American conservative movement, President Reagan’s election had much to do with this. And as the conservative movement picked up strength, it found it already had institutions in the legal world ready and able to exploit its explosive growth.
But, most importantly, there have always been conservative law students. Just like in the humanities and social sciences, the legal professoriate is overwhelmingly left-wing; but, unlike those other disciplines, the law schools were never able to prevent conservatives from attending law school. A lock-step left-wing faculty in History can effectively prevent any PhD’s being awarded to any right-wing folks; for a variety of reasons, law schools simply do not and cannot operate that way.
The result has been a conservative renaissance in legal academia that is even starting to make itself felt in the professoriate. These new legal conservatives come in a number of varieties, but they all share one thing: they all have a deep respect and love for the American common law tradition and our unique legal heritage.
But, as we know, when liberals lose the argument—as they increasingly have in the legal world—they tend to reach for more authoritarian methods to get the job done. In the 1960’s and 1970’s they couldn’t win elections or convince state legislatures that their programs ought to be adopted, so they relied on liberal courts to impose them by judicial fiat. Now, much to their dismay, they find the judiciary less amenable to their ideas as well, and resultingly unwilling to simply impose liberal policy prescriptions by court order.
Having been unable to justify their legal positions the traditional way, by arguing case law, distinguishing cases, comparing cases, arguing by analogy, etc., legal liberals have now turned to the only avenue left them. Not having the ability to point to good precedent in American law, they are reduced to pointing to European and Canadian law.
In a way, this is symbolic of the legal left’s weakness at this point in time. However, should the new movement to cite to foreign legal cases as something more than merely vaguely persuasive authority take hold, the hard work of conservative jurists over the past 20 years could be wiped away as quickly as you can say “Canadian Supreme Court.”
Which makes this week’s ruling by the U.S. Supreme Court that state laws allowing the execution of certain 16- and 17-year olds for capital crimes not only wrong, but dangerous.
Roper v. Simmons, ___ U.S. ___ (2005)
Roper presented a question familiar to those who work in appellate criminal law: “whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime.” As recently as 1989, the Court had reviewed a similar question and ruled that such an execution did not offend the Constitution. That is not very long ago in the world of Supreme Court precedent, which is why many were shocked when the Court agreed to hear the case.
(As many of you probably know, the Supreme Court gets to select most of the cases it hears; this process, called “granting certiorari” is fascinating and closely-watched in its own right since the cases the Court selects indicate what legal issues the Court has concluded require its direct intervention. For you Constitutional geeks out there, there are some “original jurisdiction” cases, such as suits between the States, that the Court must hear.)
The facts of the capital case would also be depressingly familiar to anyone who has worked on such cases before. Typical of the genre, the crime is an exemplar of the kind of banality of evil—the sheer stupidness and cruelty of it—that so often ends up invoking a capital penalty in our system. Basically, Christopher Simmons, then age 17, decided that he and a few other minor friends would break into the home of a women with whom he had been involved in a traffic accident. The crime was planned and talked about in advance. Mercifully for him, one of Simmons’ two accomplices declined to participate the night of the crime. Simmons and his remaining friend broke into the woman’s home, abducted her, tied her up, wrapped her entire face in duct tape and then tossed her from a railroad bridge into a river, still alive, where the poor woman drowned.
Also typical of such cases, Simmons was caught within a few days and within a few hours of his capture had fully confessed. He was tried, found guilty and sentenced to death in Missouri. His appeals failed until the Missouri Supreme Court, then acting in direct defiance of Supreme Court precedent, ruled that Missouri’s capital punishment law violated the Eighth Amendment’s prohibition against cruel and unusual punishment in that it allowed the execution of minors.
The Eighth Amendment
As the Court pointed out, “[t]he Eighth Amendment provides: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The provision is applicable to the States through the Fourteenth Amendment.”
Eighth Amendment law is well-settled, if hotly contested. Basically, the Court has ruled over the years that the Amendment’s prohibition against “cruel and unusual punishment” means that:
As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic “ ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” 536 U. S., at 311 (quoting Weems v. United States, 217 U. S. 349, 367 (1910)). By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.
The prohibition against “cruel and unusual punishments,” like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. Trop v.Dulles, 356 U. S. 86, 100.101 (1958) (plurality opinion).
Working from this rule of law, Justice Kennedy then sets out to demonstrate that the movement in the states against the execution of minors is reflective of a change in national standards such that all execution of minors is now prohibited by the Eighth Amendment. As we’ve noted above, this rule of law is hotly debated since it allows judges to cherry-pick new laws and recent changes in the law that support a contention that a new consensus on what constitutes cruel and unusual punishment is emerging. As is typical of more conservative jurisprudence, the minority was extremely distressed to see the majority ride roughshod over a number of state legislatures on what has to be admitted is a very tentative case for a new national consensus on the subject.
We will leave the detailed arguments on the merits of Kennedy’s case elsewhere, though we agree strongly with the analysis which has appeared this week by Orin Kerr (and agreed with by Prof. Volokh) at the Volokh Conspiracy and The New Republic. What concerns us here is how the Court used foreign legal opinions to support its claims of a changing national consensus on the question presented.
Foreign Law in Roper
First, it must be admitted that it is simply not true that foreign law never has a place in American case law. As any first year law student will tell you, other cases from Common Law jurisdictions (though almost never any from Civil Law jurisdictions) are included in our case books when we study, and not just to illustrate the principles of Common Law as they existed at the time of the American Revolution. In addition, there are a number of areas of law, such as admiralty law or trade law, where international treaties and other nations’ interpretation of them are persuasive authority.
The use of foreign law in Roper, however, is of a different character altogether. The liberal majority, not having sufficient support in American law for its contentions, basically called in some foreign artillery to support its weakened front lines. Foreign law has been cited in previous Eighth Amendment cases, but only in passing and as dicta. Interestingly, though, the international law cited by the Court in Roper is not, strictly speaking, relevant to the Court’s decision; even the majority admits it is “not controlling.” Therefore, Roper should be seen as the strongest and most aggressive stance yet taken by liberal jurists to entrench the routine citing of foreign cases in American case law. Since case law is a cumulative process, with each case building upon and citing those of the past, the liberal hope is that the practice will gain incremental legitimacy.
Justice Kennedy begins his survey of foreign law on the subject by noting:
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. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” 356 U. S., at 102.103 (plurality opinion) (“The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime”); see also Atkins, supra, at 317, n. 21 (recognizing that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved”); Thompson, supra, at 830.831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty “by other nations that share our Anglo-American heritage, and by the leading members of the Western European community,” and observing that “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual”); Enmund, supra, at 796.797, n. 22 (observing that “the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe”); Coker, supra, at 596, n. 10 (plurality opinion) (“It is . . . not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue”).
If Kennedy had left it at this, as dicta that, as before, simply points out that there is some degree of conformity in other Common Law jurisdictions on the issue, then there would be no real problem with the decision. Kennedy is, of course, wrong, but that in and of itself does not make this passage dangerous to our Common Law tradition. While one can wonder why the Justice feels his decisions need to “find confirmation” in Indian Law, or why he thinks it relevant that the U.S. is the only country in the world that sanctions the juvenile death penalty, this in and of itself does not render the decision overly dangerous. However, the Justice continues:
As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.
Here the Court seems to be citing as authority for its decision the fact that the political branches of the USG, the Presidency and the Congress, have refused to ratify a treaty. In effect, the Court is saying that it can impose a new Constitutional standard because the rest of world, except for those branches of the USG with the authority to do so, have accepted some principles in a high-level treaty.
This is shocking in two respects. First, it is a cold usurpation of the prerogatives of the Executive and the Legislature. As Justice Scalia points out in his dissent, “[u]nless 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, its position.” Second, it assumes—as so many liberals do—that just because nations have signed up to high-sounding beautiful language that this means that this language is reflective of a real international reality. Many nations, such as Iran and Saudi Arabia, have executed juveniles without due process of law, despite having signed such meaningless U.N. treaties.
Kennedy is not finished there, however. He continues:
Though the international covenants prohibiting the juvenile death penalty are of more recent date, it is instructive to note that the United Kingdom abolished the juvenile death penalty before these covenants came into being. The United Kingdom’s experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: “[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusuall Punishments inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441 (1770); see also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter.
* * *
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.
Let us leave aside for a moment that England and Wales are currently suffering from overwhelming levels of juvenile crime and focus instead on the dynamic here. “Human Rights” law means, simply, law that is in conformity with the political opinion of liberals. By citing each other, much like historians do, liberal jurists are able to build precendential value in their personal political opinions. The fact that lawyers in England and Wales disagree with our law is without any legal relevance whatsoever and can only be cited for one reason: to establish the practice of doing so.
In effect, Justice Kennedy has now created “stakeholder status” in U.S. Constitutional law in left-wing lawyers’ committees in the U.K. Fortunately for us, the conservative legal movement is alive and well, as Justice Scalia scathingly showed in his dissent.
Justice Scalia’s Landmark Dissent
Scalia is by far and away the best and easiest Supreme Court justice to read. While he’s not always right (that would be Justice Thomas’ role) he is always engaging and entertaining in a way not seen at that level of jurisprudence since the Nineteenth Century.
In his dissent, Scalia raises the conservative standard and sets out the opposition talking points to use against the new liberal international human rights law offensive. In so doing, Scalia has provided an invaluable service to conservative law students, professors and commentators, not to mention Congress.
Scalia’s central argument with regard to the new liberal fascination with E.U. and U.N. law is devastating and easy to grasp:
More fundamentally, however, the basic premise of the Court’s argument that American law should conform to the laws of the rest of the world ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law, including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. (Emphasis added).
Basically, what Scalia is saying is that if liberal jurists want to argue that U.S. law needs to be changed because it is out of step with the rest of the Western world’s law, we cannot stop with only those laws that liberals want changed.
What makes this argument so powerful is that there are a number of rules of law in U.S. jurisprudence that are unique in the Western world, and a number of those are much beloved by liberals. For example, the Exclusionary Rule (which excludes evidence acquired by the authorities should any part of the process or search later be found to be illegal) has been rejected soundly by both the U.K. and Canada. Our laws regarding the strict separation of church and state do not find favor overseas. And we are one of the only six countries of the world that allows abortion to the point of viability.
As Scalia explains:
The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.
Here is the conservative argument against foreign law being used as authority in our cases. If liberals are going to use it, we need to demand that it always be used, a position liberals will quickly find uncomfortable.
American exceptionalism cuts both ways. Simple slogans like “we’re the only country in the world that does X” will have to be dropped once liberals realize that this exceptionalism protects a number of legal principles they hold dear as well.
And therein lies the genius of Scalia’s dissent. By intellectually undercutting liberal jurists’ ability to cherry-pick those foreign decisions which fit their personal prejudices, the Justice has provided a weapon and a useful tool for other judges and justices, not to mention law professors, to point out the inconsistency in the liberal position.
American exceptionalism is a fact. We are often alone, we are often isolated. Liberals need to understand that this, by itself, says nothing about the value of the stance being taken. And as we argue that this isolation in the world community protects rights that they find indispensable, they will be less able to argue that we should do something simply because France and Germany do it.
The debt the Right owes Justice Scalia is immense. Many commentators have noticed that Justice Kennedy probably lost a bid to become Chief Justice with this decision. Here’s hoping that future law students will read the following at the top of some of their cases:
Scalia, C.J.
Due to the vitality of our civil society and the innate genius of small jurisdictions with real power, the liberal academic elite in our country were not able to fully dominate the legal world the way they did in neighboring Canada or the United Kingdom. As a result, smaller law schools and organizations like the Federalist Society were able to thrive in the background, providing an all-important refuge for conservative lawyers and law professors during the liberal ascendancy of the 60’s and 70’s.
Throughout the 80’s this movement picked up force. Like so many other aspects of the American conservative movement, President Reagan’s election had much to do with this. And as the conservative movement picked up strength, it found it already had institutions in the legal world ready and able to exploit its explosive growth.
But, most importantly, there have always been conservative law students. Just like in the humanities and social sciences, the legal professoriate is overwhelmingly left-wing; but, unlike those other disciplines, the law schools were never able to prevent conservatives from attending law school. A lock-step left-wing faculty in History can effectively prevent any PhD’s being awarded to any right-wing folks; for a variety of reasons, law schools simply do not and cannot operate that way.
The result has been a conservative renaissance in legal academia that is even starting to make itself felt in the professoriate. These new legal conservatives come in a number of varieties, but they all share one thing: they all have a deep respect and love for the American common law tradition and our unique legal heritage.
But, as we know, when liberals lose the argument—as they increasingly have in the legal world—they tend to reach for more authoritarian methods to get the job done. In the 1960’s and 1970’s they couldn’t win elections or convince state legislatures that their programs ought to be adopted, so they relied on liberal courts to impose them by judicial fiat. Now, much to their dismay, they find the judiciary less amenable to their ideas as well, and resultingly unwilling to simply impose liberal policy prescriptions by court order.
Having been unable to justify their legal positions the traditional way, by arguing case law, distinguishing cases, comparing cases, arguing by analogy, etc., legal liberals have now turned to the only avenue left them. Not having the ability to point to good precedent in American law, they are reduced to pointing to European and Canadian law.
In a way, this is symbolic of the legal left’s weakness at this point in time. However, should the new movement to cite to foreign legal cases as something more than merely vaguely persuasive authority take hold, the hard work of conservative jurists over the past 20 years could be wiped away as quickly as you can say “Canadian Supreme Court.”
Which makes this week’s ruling by the U.S. Supreme Court that state laws allowing the execution of certain 16- and 17-year olds for capital crimes not only wrong, but dangerous.
Roper v. Simmons, ___ U.S. ___ (2005)
Roper presented a question familiar to those who work in appellate criminal law: “whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime.” As recently as 1989, the Court had reviewed a similar question and ruled that such an execution did not offend the Constitution. That is not very long ago in the world of Supreme Court precedent, which is why many were shocked when the Court agreed to hear the case.
(As many of you probably know, the Supreme Court gets to select most of the cases it hears; this process, called “granting certiorari” is fascinating and closely-watched in its own right since the cases the Court selects indicate what legal issues the Court has concluded require its direct intervention. For you Constitutional geeks out there, there are some “original jurisdiction” cases, such as suits between the States, that the Court must hear.)
The facts of the capital case would also be depressingly familiar to anyone who has worked on such cases before. Typical of the genre, the crime is an exemplar of the kind of banality of evil—the sheer stupidness and cruelty of it—that so often ends up invoking a capital penalty in our system. Basically, Christopher Simmons, then age 17, decided that he and a few other minor friends would break into the home of a women with whom he had been involved in a traffic accident. The crime was planned and talked about in advance. Mercifully for him, one of Simmons’ two accomplices declined to participate the night of the crime. Simmons and his remaining friend broke into the woman’s home, abducted her, tied her up, wrapped her entire face in duct tape and then tossed her from a railroad bridge into a river, still alive, where the poor woman drowned.
Also typical of such cases, Simmons was caught within a few days and within a few hours of his capture had fully confessed. He was tried, found guilty and sentenced to death in Missouri. His appeals failed until the Missouri Supreme Court, then acting in direct defiance of Supreme Court precedent, ruled that Missouri’s capital punishment law violated the Eighth Amendment’s prohibition against cruel and unusual punishment in that it allowed the execution of minors.
The Eighth Amendment
As the Court pointed out, “[t]he Eighth Amendment provides: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The provision is applicable to the States through the Fourteenth Amendment.”
Eighth Amendment law is well-settled, if hotly contested. Basically, the Court has ruled over the years that the Amendment’s prohibition against “cruel and unusual punishment” means that:
As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic “ ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” 536 U. S., at 311 (quoting Weems v. United States, 217 U. S. 349, 367 (1910)). By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.
The prohibition against “cruel and unusual punishments,” like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. Trop v.Dulles, 356 U. S. 86, 100.101 (1958) (plurality opinion).
Working from this rule of law, Justice Kennedy then sets out to demonstrate that the movement in the states against the execution of minors is reflective of a change in national standards such that all execution of minors is now prohibited by the Eighth Amendment. As we’ve noted above, this rule of law is hotly debated since it allows judges to cherry-pick new laws and recent changes in the law that support a contention that a new consensus on what constitutes cruel and unusual punishment is emerging. As is typical of more conservative jurisprudence, the minority was extremely distressed to see the majority ride roughshod over a number of state legislatures on what has to be admitted is a very tentative case for a new national consensus on the subject.
We will leave the detailed arguments on the merits of Kennedy’s case elsewhere, though we agree strongly with the analysis which has appeared this week by Orin Kerr (and agreed with by Prof. Volokh) at the Volokh Conspiracy and The New Republic. What concerns us here is how the Court used foreign legal opinions to support its claims of a changing national consensus on the question presented.
Foreign Law in Roper
First, it must be admitted that it is simply not true that foreign law never has a place in American case law. As any first year law student will tell you, other cases from Common Law jurisdictions (though almost never any from Civil Law jurisdictions) are included in our case books when we study, and not just to illustrate the principles of Common Law as they existed at the time of the American Revolution. In addition, there are a number of areas of law, such as admiralty law or trade law, where international treaties and other nations’ interpretation of them are persuasive authority.
The use of foreign law in Roper, however, is of a different character altogether. The liberal majority, not having sufficient support in American law for its contentions, basically called in some foreign artillery to support its weakened front lines. Foreign law has been cited in previous Eighth Amendment cases, but only in passing and as dicta. Interestingly, though, the international law cited by the Court in Roper is not, strictly speaking, relevant to the Court’s decision; even the majority admits it is “not controlling.” Therefore, Roper should be seen as the strongest and most aggressive stance yet taken by liberal jurists to entrench the routine citing of foreign cases in American case law. Since case law is a cumulative process, with each case building upon and citing those of the past, the liberal hope is that the practice will gain incremental legitimacy.
Justice Kennedy begins his survey of foreign law on the subject by noting:
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. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” 356 U. S., at 102.103 (plurality opinion) (“The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime”); see also Atkins, supra, at 317, n. 21 (recognizing that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved”); Thompson, supra, at 830.831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty “by other nations that share our Anglo-American heritage, and by the leading members of the Western European community,” and observing that “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual”); Enmund, supra, at 796.797, n. 22 (observing that “the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe”); Coker, supra, at 596, n. 10 (plurality opinion) (“It is . . . not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue”).
If Kennedy had left it at this, as dicta that, as before, simply points out that there is some degree of conformity in other Common Law jurisdictions on the issue, then there would be no real problem with the decision. Kennedy is, of course, wrong, but that in and of itself does not make this passage dangerous to our Common Law tradition. While one can wonder why the Justice feels his decisions need to “find confirmation” in Indian Law, or why he thinks it relevant that the U.S. is the only country in the world that sanctions the juvenile death penalty, this in and of itself does not render the decision overly dangerous. However, the Justice continues:
As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.
Here the Court seems to be citing as authority for its decision the fact that the political branches of the USG, the Presidency and the Congress, have refused to ratify a treaty. In effect, the Court is saying that it can impose a new Constitutional standard because the rest of world, except for those branches of the USG with the authority to do so, have accepted some principles in a high-level treaty.
This is shocking in two respects. First, it is a cold usurpation of the prerogatives of the Executive and the Legislature. As Justice Scalia points out in his dissent, “[u]nless 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, its position.” Second, it assumes—as so many liberals do—that just because nations have signed up to high-sounding beautiful language that this means that this language is reflective of a real international reality. Many nations, such as Iran and Saudi Arabia, have executed juveniles without due process of law, despite having signed such meaningless U.N. treaties.
Kennedy is not finished there, however. He continues:
Though the international covenants prohibiting the juvenile death penalty are of more recent date, it is instructive to note that the United Kingdom abolished the juvenile death penalty before these covenants came into being. The United Kingdom’s experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: “[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusuall Punishments inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441 (1770); see also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter.
* * *
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.
Let us leave aside for a moment that England and Wales are currently suffering from overwhelming levels of juvenile crime and focus instead on the dynamic here. “Human Rights” law means, simply, law that is in conformity with the political opinion of liberals. By citing each other, much like historians do, liberal jurists are able to build precendential value in their personal political opinions. The fact that lawyers in England and Wales disagree with our law is without any legal relevance whatsoever and can only be cited for one reason: to establish the practice of doing so.
In effect, Justice Kennedy has now created “stakeholder status” in U.S. Constitutional law in left-wing lawyers’ committees in the U.K. Fortunately for us, the conservative legal movement is alive and well, as Justice Scalia scathingly showed in his dissent.
Justice Scalia’s Landmark Dissent
Scalia is by far and away the best and easiest Supreme Court justice to read. While he’s not always right (that would be Justice Thomas’ role) he is always engaging and entertaining in a way not seen at that level of jurisprudence since the Nineteenth Century.
In his dissent, Scalia raises the conservative standard and sets out the opposition talking points to use against the new liberal international human rights law offensive. In so doing, Scalia has provided an invaluable service to conservative law students, professors and commentators, not to mention Congress.
Scalia’s central argument with regard to the new liberal fascination with E.U. and U.N. law is devastating and easy to grasp:
More fundamentally, however, the basic premise of the Court’s argument that American law should conform to the laws of the rest of the world ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law, including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. (Emphasis added).
Basically, what Scalia is saying is that if liberal jurists want to argue that U.S. law needs to be changed because it is out of step with the rest of the Western world’s law, we cannot stop with only those laws that liberals want changed.
What makes this argument so powerful is that there are a number of rules of law in U.S. jurisprudence that are unique in the Western world, and a number of those are much beloved by liberals. For example, the Exclusionary Rule (which excludes evidence acquired by the authorities should any part of the process or search later be found to be illegal) has been rejected soundly by both the U.K. and Canada. Our laws regarding the strict separation of church and state do not find favor overseas. And we are one of the only six countries of the world that allows abortion to the point of viability.
As Scalia explains:
The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.
Here is the conservative argument against foreign law being used as authority in our cases. If liberals are going to use it, we need to demand that it always be used, a position liberals will quickly find uncomfortable.
American exceptionalism cuts both ways. Simple slogans like “we’re the only country in the world that does X” will have to be dropped once liberals realize that this exceptionalism protects a number of legal principles they hold dear as well.
And therein lies the genius of Scalia’s dissent. By intellectually undercutting liberal jurists’ ability to cherry-pick those foreign decisions which fit their personal prejudices, the Justice has provided a weapon and a useful tool for other judges and justices, not to mention law professors, to point out the inconsistency in the liberal position.
American exceptionalism is a fact. We are often alone, we are often isolated. Liberals need to understand that this, by itself, says nothing about the value of the stance being taken. And as we argue that this isolation in the world community protects rights that they find indispensable, they will be less able to argue that we should do something simply because France and Germany do it.
The debt the Right owes Justice Scalia is immense. Many commentators have noticed that Justice Kennedy probably lost a bid to become Chief Justice with this decision. Here’s hoping that future law students will read the following at the top of some of their cases:
Scalia, C.J.
