Constitutional Opinions
Rabkin, Jeremy
"Constitutional Opinions" By Jeremy Rabkin A Multilateralist Supreme Court The Supreme Court provoked a bit of a stir back in June, when it ruled that capital punishment could not be imposed on...
...Why would American judges want to take moral guidance from these people...
...The Supreme Court of Canada can cite the Supreme Court of South Africa to show there is an evolving world consensus...
...For the most part, the majority was content to express the feeling that execution is cruel and unusual punishment for a retarded person and therefore unconstitutional...
...Put aside why judges are better equipped to discern "evolving standards" than elected legislatures or the citizen juries who determine the actual sentence in the precise circumstances of the particular case...
...Human Rights Commission voted to endorse Palestinian suicide bombing...
...The E.U.s Court of Justice insists that its interpretation of European treaties must take precedence even over national constitutions in the member states...
...He notes that U.S...
...A majority of Frenchmen favor the restoration of capital punishment, as do growing numbers in other European countries...
...Or perhaps with "standards of decency...
...though, how does the Supreme Court know what the global society of "the world community" really believes...
...But their views will not be noticed by supranational authorities because, according to current European doctrine, for governments to act in accord with the views of their own citizens would be undemocratic...
...Put aside whether every change in opinion is "progress...
...When you come right down to it, there is "overwhelming disapproval" in the "world community" for quite a few things we do here in America...
...Psychologists determined that Atkins had subnormal intelligence, but no one claimed he did not know what he was doing...
...Justice Stevens almost gives the game away in footnote 21 when he cites as his authority an amicus brief submitted by the European Union...
...It requires mystical skill to determine whether the European courthas properly discerned the common threads in the rights traditions of Portugal, Finland and Greece—as in a 1996 case about the rights of transsexuals in England...
...states on the U.N...
...The main prop for the majority's reasoning was a chestnut from 1958, Trop v. Dulles, in which Chief Justice Warren explained that the Eighth Amendment prohibition "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society...
...Not much of an argument, but one can't argue with feelings—not, at least, Jeremy Rabkin is professor of government at Cornell University...
...Then, last April, presumably just around the time Justice Stevens was studying the E.U...
...and in this aspect, undemocratic...
...That's why we used to think it important to have our own Constitution...
...They are also indignant that we lock up Afghan terrorists with-out giving them the full benefits of the Geneva Convention for prisoners of war...
...If you ask about democratic legislatures in the world—rather than in the United States—you can say there is "majority" support for the Court's ruling...
...Would-be dissenters, like tart-tongued Justice Scalia, are condemned to silence...
...It's a brief allusion but Chief Justice Rehnquist's dissent takes it quite seriously, protesting at some length against "the Court's decision to place weight on foreign laws...
...Maybe he does...
...Atkins was convicted of seizing his victim at gunpoint, forcing him to withdraw $200 from an ATM machine, then taking the victim to a remote location and firing eight shots into his body...
...Want to follow that through, Justice Stevens...
...The Court in Atkins was left with the awkward claim that "society" had changed its mind, because a number of state legislatures have enacted laws exempting the mentally retarded from execution—when, in fact, the majority of state legislatures still have not done so...
...But steering this close to an iceberg may someday blow a big hole in the Constitution...
...citizenship...
...In a book published earlier this year in Canada, Coercing Virtue: The Worldwide Rule of Judges, Robert Bork surveys the emerging trend toward an "international constitutional common law...
...It is not clear why they think that the victims of the bombers deserve to die...
...It's easy to read through an opinion of the U.S...
...Thomas E. Ricks, Washington Post Pentagon correspondent .. eviscerates complacent careerists and rigid bureaucracies . . . fun to read and sharply on target—disturbing too...
...Europeans have the answers...
...on, both sides were certainly correct...
...But the court has assured people in these countries that they needn't worry: The European Court of Justice will itself protect their rights based on its own understanding of common legal traditions of the member states...
...Constitution what may be "the practices of the `world community,' whose notions of justice are (thankfully) not ours" The inverted commas around "world community" probably weren't just inserted to indicate that Scalia was quoting from the majority opinion...
...The European Union sides with Palestinian terror sponsors in international forums—and provides extensive financing for the terror sponsors...
...Justice Scalia put the point, well, more pointedly: It is "irrelevant" to the U.S...
...It has something to do with "democracy...
...But European authorities seem to be open-minded on this detail...
...What activist judge wouldn't envy that license...
...Courts around the world have begun to see the appeal in the European practice...
...The Court declined to say outright that mentally retarded people can't restrain themselves from committing vicious murders...
...The submerged monster, just breaking the surface in footnote 21, is "the world community...
...As courts in various countries invoke court rulings from elsewhere, they "piece together, case by case, a fabric of law" that reflects the values of cosmopolitan elites...
...If we are talking about "society...
...But Bork was looking at references that cropped up in dissenting or concurring opinions...
...Perhaps the justices will just chip off a few ice splinters in the next few cases and use them to dilute whatever cocktail of warm feeling and confused logic they're stir-ring up in those cases...
...Prompted by the Council of Europe, France and Germany announced last fall that they would not extradite even terrorists involved in the September 11 attacks, unless the United States promised not to impose capital punishment on these mass killers...
...But "standards of decency" are always "evolving" in Europe...
...BOLD, BLUNT, AND BRUTALLY HONEST From the Author of Fighting for the Future BEYOND TERROR STRATEGY IN A CHANGING WORLD Ralph Peters $22.95, HC, 368 pages, 0-8117-0024-0 "Peters is one of the best strategic thinkers this country has produced—and, on top of that, a strong and memorable writer...
...Controversial question about gay rights...
...Conservatives saw it as a sign that the Court—or at least its liberal and centrist judges—are returning to the bad habit of con-fusing their personal feelings with the requirements of the Constitution...
...As a description of what was going The Atkins ruling steers us close to an iceberg that could someday blow a hole in the Constitution...
...How much intelligence does it require to know that armed robbery is wrong and murdering your victim, when he is helpless before you, is very, very wrong...
...They also reject capital punishment for the wise and witty...
...Supreme Court justices were already citing foreign law as argument for restricting the death penalty in the late 1980s...
...Most democratic states are firmly opposed to execution of the mentally retarded...
...Last year, the Council of Europe published a lengthy attack on American capital punishment, insisting that "the United States is out of step with other democracies...
...But a footnote in the Atkins ruling acknowledged an iceberg lurking beneath the surface...
...Perhaps they thought that fanatics, like the men-tally retarded, couldn't be blamed for killing people...
...John Lehman, Wall Street Journal "Brilliantly written" —The Weekly Standard WWW.STACKPOLEBOOKS.COM 1-800-732-3669 SEPTEMBER/OCTOBER 2002 THE AMERICAN SPECTATOR 2 5...
...24 THE AMERICAN SPECTATOR • SEPTEMBER/OCTOBER 2002 when Justice O'Connor and Justice Kennedy feel them stirring in their own heavy hearts...
...Once you say that all democracies must march in lockstep, you will begin to find more and more uniformity...
...Despite the protests of Rehnquist and Scalia, the practice is likely to continue...
...The Euro version of "democracy" has its own awkwardness, however...
...And the next case may not turn at all on capital punishment...
...C O V A L OPINIONS By Jeremy Rabkin A Multilateralist Supreme Court The Supreme Court provoked a bit of a stir back in June, when it ruled that capital punishment could not be imposed on murderers who are mentally retarded...
...legal brief, four of six E.U...
...Today, Europeans aren't just indignant that we execute killers...
...If so, he'll certainly want to puff his opinion with yeasty citations from the practices of "the world community...
...Bork calls it "cultural socialism" and warns that this "illegitimate" practice may break into American court decisions too...
...Now Justice Stevens has insinuated this sort of argument in a majority opinion...
...Though relegated to a footnote, the "world community" was not at all peripheral to the majority opinion...
...There was a time when most Europeans thought it was not quite decent to endorse or finance the murder of Jews...
...They reject it altogether...
...If it was constitutional to execute feeble-minded killers in 1989, how has it now become "cruel and unusual...
...Of course, all European states disapprove of capital punishment for the mentally retarded...
...Since the Court had held the opposite in 1989, liberal commentators saw the ruling in Atkins v. Virginia as signaling a retreat from the Court's past endorsements of capital punishment...
...Perhaps because Europeans have found ways to elevate judges that would have made Chief Justice Warren swoon...
...If "evolving norms" can be drawn from "the world community," how-ever, the argument looks much stronger...
...Also, the European Court of Justice has the convenient practice of issuing all its decisions in unsigned opinions for the court as a whole...
...The majority opinion, by Justice Stevens, notices there that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved...
...When the Warren court first invoked "evolving standards of decency," it wasn't dealing with capital punishment, but with a case where a military deserter had been stripped of U.S...
...It's not the worst decision of recent years or even the most illogical, so pundits scored their points on each side and moved on...
...Supreme Court to see whether it makes any serious argument regarding our own Constitution...
Vol. 35 • September 2002 • No. 5
