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Our laws, not foreign laws
Question of the Day
One of the threats facing our judiciary is the view that judges can use the laws of foreign nations to interpret the American Constitution.
This is not an abstract argument but a view shared by legal minds across the country and put into practice by our own Supreme Court. It must be refuted and rejected - it is dangerous, and it is wrong.
It is dangerous to our rights and liberties and to the Constitution that protects them. It is wrong because it violates the entire concept of republican government, in which the moral authority of our laws derives from the fact that they represent the justly expressed will of “we the people.” Simply put: Do judges serve American citizens or the citizens of the world?
To better understand the consequences of this debate, look at Roper v. Simmons. In that case, a 17-year-old male, acting with an accomplice, forcefully abducted a woman from her house in the early hours of the morning. He drove her to a park, bound her hands and feet in wire, wrapped her face in duct tape and threw her from a bridge to drown in the river below.
In light of overwhelming evidence, a jury found the defendant guilty and recommended that he be sentenced to death in accordance with the laws of their state.
The Supreme Court, in a 5-4 decision that overturned the sentence, held that capital punishment for any murderer younger than 18, no matter how heinous the crime, was unconstitutional.
The majority rooted its conclusion in the justices’ personal views and the views of those in foreign institutions. Justice Anthony M. Kennedy, writing for the majority, appealed to “evolving standards of decency” and said the court should “acknowledge the overwhelming weight of international opinion against the juvenile death penalty.” Justice Kennedy went on to cite a variety of foreign laws, including a U.N. convention and a British act of Parliament.
The death penalty is a complex issue, and certainly there are those who would object to the sentence in this case. But the question here is not our view on capital punishment, but whether we believe the court has any authority to change our Constitution on the basis of foreign law.
If the American people no longer believe that the Eighth Amendment, as written, reflects their values, can they not amend their own Constitution and adopt a new amendment?
As Justice Antonin Scalia asked in his dissent: “By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?” Let alone the authoritative conscience of the world?
Not only is it impossible for “nine lawyers” to act as a barometer of global opinion and evolving decency, but that effort would threaten the entire concept of an independent and impartialcourt system - along with the liberties those courts are supposed to defend. Here are just a few of the consequences:
• Enormous confusion about the current state of our laws because their meaning would be found not in reading the text but in divining world opinion.
• Blurring of domestic and foreign law and the diminishment of American sovereignty.
• Erosion of the moral authority of our laws because they would no longer be grounded firmly in the Constitution and the democratic process.
• A severe weakening of our Constitution because judges would no longer be bound to its actual words or meaning.
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