The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Friday, March 04, 2005
Scalia sizzles while the Court fizzles
The big loser in last week's landmark Supreme Court decision was not merely the taxpayers of the State of Texas, who now have to pay over $200,000 per year to keep feeding, clothing, providing free medical care, and guarding each of the 39 17-year old convicted killers until they die of natural causes. Nor was it the millions across the country who were outraged merely because the savageness of the crime that the decision was based on--this guy was one of the people on death row in the US who most deserved to be executed. And John Lee Malvo must be positively ecstatic...
No the biggest loser in this case was the rule of law in the United States. Because this was a flawed decision if ever there was one. This one makes "Ring of Honor", right up there with Plessy vs. Ferguson. First of all the primary argument for the majority opinion (authored by the liberal Kennedy...) based the decision on legal mumbo jumbo that makes no sense whatsoever legally, but basically boils down to: "well the Europeans don't do it, why should we?" David Limbaugh put it this way:
There is at least an additional column's worth of other problems with the Court's decision, such as its obscene, arbitrary and opportunistically convenient reference to foreign standards, and its misanalysis of the deterrence argument. I also note the incredible irony of the Court -- in the process of proclaiming itself the final moral arbiter -- undermining its own authority in rewarding, instead of reprimanding, the Missouri Supreme Court for flagrantly ignoring its (the United States Supreme Court's) precedents.
The Court, which is sworn above all to be the Guardians of the Constitution of the United States seems to have not had a copy of that Constitution handy while it was mulling the decision. "Preserve, protect, and defend..."?? This decision had nothing whatsoever to do with the US Constitution, this is not worth the paper it is written on--and it has taken the reputation of the Court down a few notches. One can only hope that Bush will get an opportunity to improve the intellectual honesty, application of Constitutional law, and most importantly the sheer backbone of the Court. We may have a man of great backbone in the White House, but they could use a few more over at the Courthouse...
Thankfully for posterity, that old fox Scalia, authoring the minority dissent, absolutely blew the majority's case to intellectual and legal smithereens. This is only one section of the Scalia opinion, but the whole thing warrants reading--still this section alone shows just how far we have fallen from the vision of the brilliant men who founded this country; men such as Locke and Hamilton). And there is very little arguing with Scalia's exposure of the majority's ineptitude in its basis of this flawed decison. [emphasis in bold are mine]:
Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage. The Court begins by noting that 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. The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), which the Senate ratified only subject to a reservation that reads:
The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age.
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, its position. That the Senate and the President, those actors our Constitution empowers to enter into treaties, have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that “our country” has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today.
It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court’s reassurance that the death penalty is really not needed, since the punishment of life imprisonment without the possibility of parole is itself a severe sanction, gives little comfort.
It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation, of whatever tyrannical political makeup and with however subservient or incompetent a court system, in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason.
I suspect it is most of them. To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words, do not even speak to the issue before us here.
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. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in Mapp v. Ohio, it was unique to American Jurisprudence.
Since then a categorical exclusionary rule has been universally rejected by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries appears to have any alternative form of discipline for police that is effective in preventing search violations. England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. Canada rarely excludes evidence and will only do so if admission will bring the administration of justice into “disrepute”. The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the fair trial requirement in Article 6 of the European Convention on Human Rights.
The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution’s requirement that “Congress shall make no law respecting an establishment of religion”. Most other countries, including those committed to religious neutrality do not insist on the degree of separation between church and state that this Court requires. For example, whereas we have recognized “special Establishment Clause” dangers where the government makes direct money payments to sectarian institutions, countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the grounds that the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding. Even in France, which is considered America’s only rival in strictness of church-state separation, [t]he practice of contracting for educational services provided by Catholic schools is very widespread.
And let us not forget the Court’s abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. Though the Government and amici in cases following Roe v. Wade urged the Court to follow the international community’s lead, these arguments fell on deaf ears.
The Court’s special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th century English law and legal thought. If we applied that approach today, our task would be an easy one. […]
The Court has, however, I think wrongly, long rejected a purely “originalist” approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation’s current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War, and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists, a legal, political, and social culture quite different from our own.
If we took the Court’s directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge’s ruling that was legally incorrect. We would also curtail our right to jury trial in criminal cases since, despite the jury system’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.
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 foreigner's 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 decision-making, but sophistry.
The Court responds that [i]t 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..
To begin with, I do not believe that approval by other nations and peoples should buttress our commitment to American principles any more than (what should logically follow) disapproval by other nations and peoples should weaken that commitment.
More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our fidelity to the Constitution, our pride in its origins, and our own [American] heritage… To the contrary, they are cited to set aside the centuries-old American practice; a practice still engaged in by a large majority of the relevant States, of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing.
Acknowledgment of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment, which is surely what it parades as today.
Regardless of your opinion of the death penalty, we simply cannot allow 9 men in black robes produce law from the bench, when the Constitution specifically dictates that power to be with the people (and its representatives).
No the biggest loser in this case was the rule of law in the United States. Because this was a flawed decision if ever there was one. This one makes "Ring of Honor", right up there with Plessy vs. Ferguson. First of all the primary argument for the majority opinion (authored by the liberal Kennedy...) based the decision on legal mumbo jumbo that makes no sense whatsoever legally, but basically boils down to: "well the Europeans don't do it, why should we?" David Limbaugh put it this way:
There is at least an additional column's worth of other problems with the Court's decision, such as its obscene, arbitrary and opportunistically convenient reference to foreign standards, and its misanalysis of the deterrence argument. I also note the incredible irony of the Court -- in the process of proclaiming itself the final moral arbiter -- undermining its own authority in rewarding, instead of reprimanding, the Missouri Supreme Court for flagrantly ignoring its (the United States Supreme Court's) precedents.
The Court, which is sworn above all to be the Guardians of the Constitution of the United States seems to have not had a copy of that Constitution handy while it was mulling the decision. "Preserve, protect, and defend..."?? This decision had nothing whatsoever to do with the US Constitution, this is not worth the paper it is written on--and it has taken the reputation of the Court down a few notches. One can only hope that Bush will get an opportunity to improve the intellectual honesty, application of Constitutional law, and most importantly the sheer backbone of the Court. We may have a man of great backbone in the White House, but they could use a few more over at the Courthouse...
Thankfully for posterity, that old fox Scalia, authoring the minority dissent, absolutely blew the majority's case to intellectual and legal smithereens. This is only one section of the Scalia opinion, but the whole thing warrants reading--still this section alone shows just how far we have fallen from the vision of the brilliant men who founded this country; men such as Locke and Hamilton). And there is very little arguing with Scalia's exposure of the majority's ineptitude in its basis of this flawed decison. [emphasis in bold are mine]:
Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage. The Court begins by noting that 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. The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), which the Senate ratified only subject to a reservation that reads:
The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age.
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, its position. That the Senate and the President, those actors our Constitution empowers to enter into treaties, have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that “our country” has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today.
It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court’s reassurance that the death penalty is really not needed, since the punishment of life imprisonment without the possibility of parole is itself a severe sanction, gives little comfort.
It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation, of whatever tyrannical political makeup and with however subservient or incompetent a court system, in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason.
I suspect it is most of them. To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words, do not even speak to the issue before us here.
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. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in Mapp v. Ohio, it was unique to American Jurisprudence.
Since then a categorical exclusionary rule has been universally rejected by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries appears to have any alternative form of discipline for police that is effective in preventing search violations. England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. Canada rarely excludes evidence and will only do so if admission will bring the administration of justice into “disrepute”. The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the fair trial requirement in Article 6 of the European Convention on Human Rights.
The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution’s requirement that “Congress shall make no law respecting an establishment of religion”. Most other countries, including those committed to religious neutrality do not insist on the degree of separation between church and state that this Court requires. For example, whereas we have recognized “special Establishment Clause” dangers where the government makes direct money payments to sectarian institutions, countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the grounds that the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding. Even in France, which is considered America’s only rival in strictness of church-state separation, [t]he practice of contracting for educational services provided by Catholic schools is very widespread.
And let us not forget the Court’s abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. Though the Government and amici in cases following Roe v. Wade urged the Court to follow the international community’s lead, these arguments fell on deaf ears.
The Court’s special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th century English law and legal thought. If we applied that approach today, our task would be an easy one. […]
The Court has, however, I think wrongly, long rejected a purely “originalist” approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation’s current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War, and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists, a legal, political, and social culture quite different from our own.
If we took the Court’s directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge’s ruling that was legally incorrect. We would also curtail our right to jury trial in criminal cases since, despite the jury system’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.
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 foreigner's 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 decision-making, but sophistry.
The Court responds that [i]t 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..
To begin with, I do not believe that approval by other nations and peoples should buttress our commitment to American principles any more than (what should logically follow) disapproval by other nations and peoples should weaken that commitment.
More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our fidelity to the Constitution, our pride in its origins, and our own [American] heritage… To the contrary, they are cited to set aside the centuries-old American practice; a practice still engaged in by a large majority of the relevant States, of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing.
Acknowledgment of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment, which is surely what it parades as today.
Regardless of your opinion of the death penalty, we simply cannot allow 9 men in black robes produce law from the bench, when the Constitution specifically dictates that power to be with the people (and its representatives).
