Supreme Court recognizing foreign law

[Jason Menard]

Personally, I do not believe in the death penalty for minors, although I believe the decision whether or not to apply it should be made at the state level. The death penalty is not the issue here though and I really don't think we should go into it. That said, the job of the Supreme Court is to interpret law within the framework of the Constitution. That's it. They are not supposed to be putting their own personal agendas into their decisions. Occasionally they may make reference to old english law which is the Constitution and our laws have their roots in, but that's it. What on freaking earth are these people doing referencing modern foreign law? Are they out of their skulls? From a recent dissenting minority opinion discussing just this (emphasis mine):

...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... ."

...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

... 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. As we explained in Harmelin v. Michigan, 501 U. S. 957, 973-974 (1991), the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments " 'out of [the Judges'] Power' "--that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges. Under that reasoning, the death penalty for under-18 offenders would easily survive this challenge. 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 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.

I find it kind of offensive that the Supreme Court would refer to modern foreign law to make its decisions. The views of other countries have no place when interpreting the Constitution. The Constitution is a historical document and there it should not in any way be re-interpreted to fit a modern context, particularly when that context is a foreign one. It would seem to me that a justice ruling on the constitutionality of something but basing that interpretation on something other than the Consitution needs to find a new job.

[fred rosenberger]

from my wife, a laywer...

You see, they're interpreting the "Cruel and Unusual" clause. The Constitution doesn't explicitly say anything about executing minors. So the Court is MAKING law. Because the Court is making new law they're looking to the example of other nations and what the consensus of Americans is. 32 states forbid the exec. of minors, 12 forbid the death penalty altogether. (I could have those #s backwards...)

When a Supreme Court makes law, they're not limited to considering what the States do, individually, but they do take it into consideration, looking for good rationales.

[Jason Menard]

Correct me if I'm wrong, but I was under the belief that it was the role of the judiciary to interpret law, not make law. I believe the term being used for judges who choose to legislate from the bench is judicial activist. These judges are not elected and do not have a mandate from the electorate to make law.
[ March 02, 2005: Message edited by: Jason Menard ]

[Axel Janssen]

The Constitution is a historical document and there it should not in any way be re-interpreted to fit a modern context, particularly when that context is a foreign one.

That's a tough one.
I think that no text stands for itself and its very natural to be interpreted in a modern context and even to compare it with development of laws in other countries.
Otherwise: How sure are we about what was Thomas Jefferson's interpretation of every sentence of your Constitution?
Does anybody own brain of T. Jefferson?
So anybody can come and claim to know orthodox interpretation of constitution which helped to forge a great and strong nation.

He can say that some different interpretation from his own is just modern re-interpretation, which only drives country away from its true roots.

[fred rosenberger]

I am not a lawyer, this is just my interpretation of what i've heard (from a lot of lawyers)

the courts both MAKE and INTERPRET law. the lower courts try to make sure the laws are followed. but in the appeals process, the lawyers argue over whether, for example, the correct rules of evidence were allowed.

now, one of the defining things the federal supreme court does is step in when there is a conflict in various states laws, or perhaps the states interpretation of federal laws. State A says "THIS is the interpretation of cruel and unusual". State B says "No, THAT is the interp. of C&U." Which state is correct? well, that's where the feds step in.

The Constitution is a historical document and there it should not in any way be re-interpreted to fit a modern context

I'm not trying to start a debate on these issues, but the framers of the constitution only knew about muzzle loading rifles and flint lock pistols. So does the second amendment not apply to assault and semi-automatic weapons? Does the first amendment protecting my free speech not apply to my blog, since the authors didn't know about internet? Those are sort of rediculous thoughts - it HAS to be interpreted under a modern context.

[Steven Bell]

Originally posted by fred rosenberger:

the courts both MAKE and INTERPRET law.

Holy Cow, have you ever even read the constitution??? Maybe that is a discription of what is happening, but the courts are NOT empowered to make law under any circumstances. That fact that we let them get away with it is a reflection of the lack of civil education and envolvement we have in the US.

now, one of the defining things the federal supreme court does is step in when there is a conflict in various states laws, or perhaps the states interpretation of federal laws. State A says "THIS is the interpretation of cruel and unusual". State B says "No, THAT is the interp. of C&U." Which state is correct? well, that's where the feds step in.

Yes, in this case, because it is a federal/constitutional law, the feds step in. But the only frame of reference for the justices should be the Constitution and federal law, not some random sampling of foriegn law, foreign law should never enter the picture.

I'm not trying to start a debate on these issues, but the framers of the constitution only knew about muzzle loading rifles and flint lock pistols. So does the second amendment not apply to assault and semi-automatic weapons? Does the first amendment protecting my free speech not apply to my blog, since the authors didn't know about internet? Those are sort of rediculous thoughts - it HAS to be interpreted under a modern context.

It can be interpreted in modern contexts, but that does not change the meaning of the document. Arms is still arms, speech is still speech.

[Ernest Friedman-Hill]

Originally posted by Steven Bell:
Arms is still arms, speech is still speech.

Mmmm. But is what is "cruel and unusual" to us still the same as what was "cruel and unusual" to our forebears? Has our concept of "human rights" not been refined somewhat in 200-odd years?

Our Revolutionary War soldiers fired muskets filled with nails, broken chains, and other rusty bits of waste, more or less point-blank into the faces of the British. What was the definition of "cruel and unusual" at that time? Does it sound to you as if it might have changed in the intervening years?

[Steven Bell]

Originally posted by Ernest Friedman-Hill:


Mmmm. But is what is "cruel and unusual" to us still the same as what was "cruel and unusual" to our forebears? Has our concept of "human rights" not been refined somewhat in 200-odd years?

Our Revolutionary War soldiers fired muskets filled with nails, broken chains, and other rusty bits of waste, more or less point-blank into the faces of the British. What was the definition of "cruel and unusual" at that time? Does it sound to you as if it might have changed in the intervening years?

Well, I don't see how the war actions in the revolutionary war would be considered cruel and unusual even today, it is war. I'm not sure how shooting somebody with some nails is much worse than shooting a high speed aluminum dart through their vehicle. As for C&U, it's not the role of the courts to define, it's the role of the legislatures to define.

[Ernest Friedman-Hill]

Originally posted by Steven Bell:
it's the role of the legislatures to define ["cruel and unusual"].

That's simply false. It's the job of the legislature to make laws. It is the Court's job is to decide whether those laws abide by the intent of the constitution.

[Jason Menard]

Originally posted by Ernest Friedman-Hill:
Mmmm. But is what is "cruel and unusual" to us still the same as what was "cruel and unusual" to our forebears? Has our concept of "human rights" not been refined somewhat in 200-odd years?

The concept of what is or isn't legally humane is defined by law, not dictated by the judiciary.

As we explained in Harmelin v. Michigan, 501 U. S. 957, 973-974 (1991), the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments " 'out of [the Judges'] Power' "--that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges. Under that reasoning, the death penalty for under-18 offenders would easily survive this challenge.

As the Constitution cannot be defined in the context of modern foreign law, it is a bit hard to grasp how modern foreign law may be referenced to determine the Consitutionality of anything. Modern foreign law should have no place whatsoever in arguments of Consitutionality. To determine Constitutionality of something, the best the judges can do is interpret what the Consitution intended. As the execution of minors was never intended by the Consitution to be cruel-and-unusual (the practice goes back to the founding of this country), then it seems a bit of a stretch to deem the act unconsitutional.

That said, if the electorate and the legislature feels that the death penalty should in no circumstances be applied to an offender under the age of 18, and that this should trump state law, then the correct way to abolish the practice is through new law drafted by the legislature. There is just no other way, short of this kind of judicial activism, that such a thing should be handled. Foriegn law, short of that which the Constitution was based on to begin with, should seemingly have absolutely no place in the interpretation of consitutionality. It is a disturbing trend that will hopefully soon be quashed. There are separations of power for a reason, and the frequency with which the unelected judiciary is usurping the elected legislature is alarming to say the least. That modern foreign law is being used to justify this activism only makes it all the more horrific.
[ March 02, 2005: Message edited by: Jason Menard ]

[fred rosenberger]

Yes, i have read the constitution. Personally, i don't see where the Constitution give the Supreme Court power to interpret the Constitution. It says when the federal courts have jurisdiction over state courts (Article 2, Section 2, clause 1) and when the Supreme court has original jurisdiction (Article 2, Section 2, clause 2). that's about it.

If i remember right, there is some Supreme Court Case where the Court said "Here's our ruling, oh, and by the way, we have the power to intrepret the Constitution".

The problem is that they had then established what's called Case Law, and a precedent. Our legal system is based (if i remember right) on the British system. Many cases are decided upon what happened in an earlier case. Lawyers don't just say "here's the law". They say "here's the law, and here are 2-3-19 other court cases where this law was applied how i say it should be, and here's why those cases are the same as the one we're discussing here today.

MUCH law is made this way. is it right or wrong? i don't know, but that's how it works. if it didn't work that way, you'd have the courts even MORE tied up, because there would BE NO law to govern something. if you had to wait for congress (or your state legislature) to decide, we'd probably only be up to cases that were filed in 1789.

[Steven Bell]

There was a case, I believe it was the early 1800's, where the Supreme Court was presented with a case where one party was sighting a law, I think it was a state law, and the other party was sighting the constitution. The court said the constitution trumped the (state?) law and with that act they gained the power to determine the constitutionality of the law. This is not spelled out in the Constitution, but it is alluded to in the federalist papers.

There is a difference between case law, which is the rulings of previous judges on existing law, and a judge making a new law based on whatever he feels like doing.

When a lawyer says here's the law and other opinions to back my interpretation of the law, that's still based on existing law. When a judge says 'well, over in (pick your country) they do X and I like that so we should do X' that is a problem.
[ March 02, 2005: Message edited by: Steven Bell ]

[Jeroen Wenting]

The Suppreme court bowed to foreign pressure in stopping the death penalty for minors.
That's just wrong.

I won't give you my opinion on whether there should be a death penalty or not nor whether such a penalty should apply to minors as well but a court should not let their decisions be influenced by the opinions of foreign governments. That's what politicians are for when they design and pass laws, not courts when they enact or interpret them.

[David Harkness]

Originally posted by Jeroen Wenting:
The Suppreme court bowed to foreign pressure in stopping the death penalty for minors.

If the Constitution says "cruel and unusual punishment" is against the law without defining "cruel and unusual," this leaves it up to the courts to interpret the law based on the current cultural norms of the day. This ties into the discussion on multictural identities.

If the police fully enforced and the courts interpreted all laws based on the cultural norms of the time of the Constitution, various wonderful forms of adult play would be landing people in jail. As it is we still put people in jail for smoking a plant, at great economic and social cost to the population no less. The U.S. also has the highest incarceration rate (percentage of population in jail) in the world.

My point is that it shifts in time based on where we are as a population. Since we mingle and mix with the world population, we'll eventually share traits with other cultures. Isn't that the whole point of the War of Democracy -- to alter the laws and very political foundations of other nations?

How can we not expect to pick up a thing or two along the way ourselves? Just as we grow as individuals (otherwise what's the point?), we grow as a society and species. Hopefully we can help each other rather than push, but that'll have to work itself out.

If we had to wait for a Constitutional amendment redefining "cruel and unusual punishment" to exclude executing minors, nothing would ever change. That is the beauty of the Constitution: it's designed to be flexible with the times.

[Frank Silbermann]

Originally posted by Axel Janssen: I think that no text stands for itself ... How sure are we about what was Thomas Jefferson's interpretation of every sentence of your Constitution?
Does anybody own brain of T. Jefferson?

We could expect at least a good-faith effort to guess what he meant, relying upon his other writings and decisions.

Originally posted by fred rosenberger:
I'm not trying to start a debate on these issues, but the framers of the constitution only knew about muzzle loading rifles and flint lock pistols. So does the second amendment not apply to assault and semi-automatic weapons? Does the first amendment protecting my free speech not apply to my blog, since the authors didn't know about internet?

The founders did know about gendarmes in France and about the distinctions other countries made between armed civil servants of the government versus common private citizens, and rejected that distinction. So, yes, in a modern context we could say that there is no place for the use of nuclear weapons by private citizens and domestic police. But a modern context gives no excuse to forbid private citizens from carrying a weapon that issued to "public servants." Where you draw the line may be subject to debate and interpretation, but draw it straight.

And what about flintlock muzzleloading pistols, which the Framers of the Constitution _did_ know about? New York City outlaws even _their_ use against rapists and muggers! Their judges' contempt for that part of the Constitution is _shameless_.

Originally posted by Jeroen Wenting:
The Suppreme court bowed to foreign pressure in stopping the death penalty for minors. That's just wrong.

I find it terrifying. Revolution will be in order if the Court ever bow to foreign pressure to prevent Americans from shooting rapists, muggers, burglars and car-jackers (many of whom are also minors).

[Steven Bell]

The constitution is not some living breathing document that can be changed by interpreting it in 'different contexts'. There is a means to change the meaning of the constitution, it's the amendment process.
If you want an example of a 'living breathing constitution' take a look at China where their constitution garuntees religious freedom, but thanks to the great interpretations of the law religious groups are slapped with extreme limitations, jailed, and worse for practicing religion.

Legislatures define punishment for crimes, these punishments are set in law by elected representatives, it is not the place of a judge to change this. Allowing judges to change laws at will is an incredibly dangerous act.
[ March 04, 2005: Message edited by: Steven Bell ]

[Jeroen Wenting]

Originally posted by David Harkness:
If the Constitution says "cruel and unusual punishment" is against the law without defining "cruel and unusual," this leaves it up to the courts to interpret the law based on the current cultural norms of the day. This ties into the discussion on multictural identities.

If we had to wait for a Constitutional amendment redefining "cruel and unusual punishment" to exclude executing minors, nothing would ever change. That is the beauty of the Constitution: it's designed to be flexible with the times.

Doesn't matter. My point is that they decided to stop execution of juveniles based not on the US constitution but based upon the opinions of foreign governments about what that constitution should be.
That's just plain wrong.

And if the constitution is interpreted as calling the death penalty cruel and unusual for minors, why isn't it for adults?
IMO current execution methods (especially lethal injection) are far less cruel than a life behind bars in a maximum security penitentiary where the inmate is liable to be raped, beaten up, and otherwise abused by his peers (especially if he's young and good looking...).

[fred rosenberger]

i briefly scanned the majority opinion on the ruling, found here. Now, i am not an expert at legalease by ANY means, but it appeared to me that the part of foreign govenments was NOT the main reason they made this ruling.

the points seem to be, in order:
1) The rejection of the execution of minors by most states (meaning U.S. states, not independant country States).
2) There are three differences between juviniles and adults that prohibit juviniles from being classified as 'the worst offenders', and prior case law says only 'the worst offenders' are subject to the death penalty.
3) finally, "the overwhelming weight of international opinion against the juvinile death penalty IS NOT CONTROLLING HERE, but provides respected and significant confirmation for the courts determination that the penalty is disproportionate punishment for offenders under 18" (emphasis mine).

[Jason Menard]

My point is that #3 above should not have even been cited. It shows that they consulted international sources for their opinion. That they referenced these in any manner whatsoever is disturbing.

[Max Habibi]

JM:My point is that #3 above should not have even been cited. It shows that they consulted international sources for their opinion. That they referenced these in any manner whatsoever is disturbing.

Jason, are you objecting to the fact that court noted that the international community, by and large, does not execute children, or are you objecting to the fact that the supreme court considered the behavior of the international community at all? Or is it both?

In the former case, it seems to be a simple matter of honesty. If the court did consider how the world at large treats criminal children, then it would be less the forthright to not say so.

In the latter case, it seems reasonable to me that as the court would consider how the rest of the world behaves, so long as the court asserts and affirms America's right to set it's own standards.

the court has explicitly asserted that right by stating

the overwhelming weight of international opinion against the juvinile death penalty is not controlling here, but provides respected and significant confirmation for the courts determination that the penalty is disproportionate punishment for offenders under 18,

It does not seem to me, in this case, that the system is broken.
M
[ March 04, 2005: Message edited by: Max Habibi ]

[fred rosenberger]

perhaps not. but the way (to me) your original post reads, it sounds like you are saying this was the ONLY reason they ruled how they did. or at least, the MAIN reason. That is not how the actual opinion reads, IMHO.

[Jason Menard]

My original post is an excerpt of the dissenting opinion. It seems clear from that excerpt that four of the nine justices felt far too much deference to international law had been given, and that doing so disturbed and confounded them. If the dissenting justices didn't feel it was an issue, I don't think they would have spent so much time on the matter.

[Max Habibi]

Originally posted by Jason Menard:
My original post is an excerpt of the dissenting opinion. It seems clear from that excerpt that four of the nine justices felt far too much deference to international law had been given, and that doing so disturbed and confounded them. If the dissenting justices didn't feel it was an issue, I don't think they would have spent so much time on the matter.

I found the minority opinion, in this case, to be a meandering discussion of clearly tangential issues, such as double jeopardy, right to jury, etc. The reasoning in the dissent seems somewhat less then above board as well.It supposes that British law forced this decision, which it clearly did not.

It then extrapolates on that erroneous assumption to highlight other difference between British and American law, as opposed to the focusing on the merits, or weaknesses, of the American decision that executing minors is cruel an unusual, by American standards.

To be honest, I found this dissent to be disappointing reading, short on reasoning and longwinded on rhetoric. Since the news has become such crap, I sometimes read SC rulings in an effort to understand what's really going on our country. This merit of this dissenting opinion, as an argument, left me disappointed.

M

[Jason Menard]

MH: Jason, are you objecting to the fact that court noted that the international community, by and large, does not execute children, or are you objecting to the fact that the supreme court considered the behavior of the international community at all?

I'm objecting to the fact that the supreme court considered the behavior of the international community at all.

MH: it seems reasonable to me that as the court would consider how the rest of the world behaves,

Why does that seem reasonable? What does that have to do with the subject of Constitutionality? By definition, the way the rest of the world behaves should not even enter into a decision of Consitutionality. The Constitution nowhere mentions anything to the effect that we will enact our laws in accordance/deference/reference (your choice) to international anything. Therefore such an influence is outside the scope of the Constitution and as such should not be used as a determinant of constitutionality.

Once more, IANAL, but I would think that the only legitimate references in rendering a decision of constitutionality would be the US Constitution, documents from which the US Constitution was derived which indicate the intentions of the framers, US law, and previous decisions in US courts (case law). I would think acknowledgement could be given to state law and decisions made in state courts as well to some extent.

MH: It does not seem to me, in this case, that the system is broken.


While it is clear that international opinion did have some effect on their ruling, and they emphasized this by refering to the "overwhelming weight of international opinion", the fact that they felt they even had to give the caveat that the such opinion "is not controlling here" seems an acknowledgement that allowing international law and opinion to influence their rulings is something that shouldn't happen.

Personally, I do not believe minors should be executed. That said, the age of 18 is an arbitrary line. There are likely many people 18 or 19 who are given the death penalty who are not sufficiently developed to the point of a "normal" 18 year old. Similarly, there are no doubt quite a few 17 year olds who are as maturely developed as a "normal" 18 year old. The age of 18 is arbitrary, and I would prefer to see the courts yield to the judgement of the states to make a determination on a case by case basis. If the justices could have made a judgement of constitutioanlity that was legitimately based on the Constitution, I don't think people would be having problems with their ruling.
[ March 04, 2005: Message edited by: Jason Menard ]

[fred rosenberger]

Where in the constitution does it state that they CANNOT look at the international community? All they are doing is interpreting the phrase "cruel and unusual" - with no guidance on HOW to intrepret that.

you say "they can use state law or case law". perhaps there IS case law that says they can use the international community's ideas to interpret something.

And if they use state law, WHICH state's do they use? Texas, where they're putting in an express line for executions, or Alaska, where there is NO death penalty?

You say it should be a state's decision, but what about the FEDERAL death penalty? i think there is such a thing, although it's very rare from what i seem to remember.

[Steven Bell]

Originally posted by fred rosenberger:
Where in the constitution does it state that they CANNOT look at the international community? All they are doing is interpreting the phrase "cruel and unusual" - with no guidance on HOW to intrepret that.

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made..."

Article III section 2. I don't see international law in there anywhere.

[Jason Menard]

Originally posted by fred rosenberger:
Where in the constitution does it state that they CANNOT look at the international community?

To be rendered Constitutional, interpretations must be within the framework of the Constitution. Remember, that's all the Supreme Court does - render decisions of Constitutionality. The modern international community has no bearing on the US Consitution. As such, they cannot be referenced to form a constitutional opinion. There are many things the Constitution does not say, but that is irrelevant. The justices still must work within the framework of the constitution.

All they are doing is interpreting the phrase "cruel and unusual" - with no guidance on HOW to intrepret that.

They may reference historical international documents that are the basis of the Constitution and US law. That is well established. The dissenting justices did so when they referenced a US decision which referenced such a document:

As we explained in Harmelin v. Michigan, 501 U. S. 957, 973-974 (1991), the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments " 'out of [the Judges'] Power' "--that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges.

you say "they can use state law or case law". perhaps there IS case law that says they can use the international community's ideas to interpret something.

I don't believe so. If you can produce some though I'd like to see it.

And if they use state law, WHICH state's do they use? Texas, where they're putting in an express line for executions, or Alaska, where there is NO death penalty?

They may reference whichever state's laws they feel justifies their decisions.

You say it should be a state's decision, but what about the FEDERAL death penalty? i think there is such a thing, although it's very rare from what i seem to remember.

There is a federal death penalty. It was revived in 1988. I believe Timothy McVeigh was executed under it. The law governing the imposition of the death penalty by a federal court (18 USC Sec. 3591) states that "no person may be sentenced to death who was less than 18 years of age at the time of the offense", so federal law is not affected, only state law. What I was saying was that it should be the state's decision whether or not the state feels the death penalty is warranted in a given state case.

[Max Habibi]

Originally posted by Steven Bell:

Article III section 2. I don't see international law in there anywhere.

Reference to internaltion laws are Treaties are in the following sections of Article III, sec 2, clause I.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; --between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

and also in clause II.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
[ March 04, 2005: Message edited by: Max Habibi ]

[Jason Menard]

Originally posted by Max Habibi:
Reference to internaltion laws are Treaties are in the following sections of Article III, sec 2, clause I.

Treaties are not just any international law. If the US signs them, they are equivalent to US law. With that clarification, there is no reference to consideration of another state's laws. It does state that the US SC will claim jurisdiction in some controveries between states, but in such cases the US Consitution and US law are applied.

This is the basis of many Status of Forces Agreements (SOFA). When the US has military forces garrisoned on foreign soil, in almost all cases there exists a SOFA which states that if US personnel are charged with breaking local laws, jursdiction is given to the United States. There have been cases which the US has ceded jurisdiction back to the host-nation however. One such famous case was of a US military person in Japan who was charged with raping a minor Japanese citizen. The SOFA stated that the US had jurisdiction in the case, however the US allowed the Japanese to prosecute the case instead. Had the serviceman been tried under US law he would have been tried under the Uniform Code of Military Justice, a set of US laws that applies to military personnel. Japanese law would have never come into it.
[ March 04, 2005: Message edited by: Jason Menard ]

[Max Habibi]

I'm objecting to the fact that the supreme court considered the behavior of the international community at all.

Fair enough. But why? It seems to me that the justices, not you and I, are best people to determine what the scope of cruel and unusual really means. Is it in the global context of humanity, or only the United States? Or is it some balance therein? Certainly, this speaks to the intent of the constitution, which the justices are quantified to speak to.

MH: it seems reasonable to me that as the court would consider how the rest of the world behaves,

Why does that seem reasonable? What does that have to do with the subject of Constitutionality?

It is reasonable because the United States Supreme Court determines the law of the land, and is not strictly limited to constitutional issues. While USSC must respect and interpret the constitution, the Supreme court also establishes America standards for indecency, reasonable search and seizure, and cruel and unusual punishment. AFIK, the justices have the right, and a responsibility, to consider as many facts as they feel is necessary in determining what those limits are.

Accordingly, it only makes sense that the justices would consider what the neighborhoods are doing, as it were, when considering what 'cruel and unusual' means for America. I believe that a similar argument was made when slavery was abolished in the United States.


By definition, the way the rest of the world behaves should not even enter into a decision of Constitutionality.

Deciding what the consition meant in terms of 'cruel and unusual' is a consitutional issue. Does it mean cruel and unusual objectivly, or just in the United State? Or is it some balance? The justices shouldn't blind themselves to what the rest of the world is doing, IMO.



Once more, IANAL, but I would think that the only legitimate references in rendering a decision of constitutionality would be the US Constitution, documents from which the US Constitution was derived which indicate the intentions of the framers, US law, and previous decisions in US courts (case law). I would think acknowledgement could be given to state law and decisions made in state courts as well to some extent.


I think acknowledgement was given to state laws: The constitution prohibits cruel and unusual punishments, for states as well as federal government as a whole. Accordingly, the justices have a responsibility to define cruel and unusual punishment for the sake of the States, so that States understand and follow those laws. The justices have done so, which it seems would be a good thing. You may not agree with the final direction of that acknowledgement, but it certainly exists.


MH: It does not seem to me, in this case, that the system is broken.


While it is clear that international opinion did have some effect on their ruling, and they emphasized this by refering to the "overwhelming weight of international opinion", the fact that they felt they even had to give the caveat that the such opinion "is not controlling here" seems an acknowledgement that allowing international law and opinion to influence their rulings is something that shouldn't happen.

I disagree with your characterization of the court's decision. I think that the justice's unambiguous statement that the overwhelming weight of international opinion against the juvenile death penalty is not controlling here is significantly more than a caveat. In my opinion, it is an strong and unambiguous assertion that the United States makes, and is making, it's own determinations.


I would prefer to see the courts yield to the judgement of the states to make a determination on a case by case basis.
I understand your preference. However, neither you nor I are going to agree with each and every decision that the USSC makes. That does not mean that they should refuse to do their job.


If the justices could have made a judgement of constitutionality that was legitimately based on the Constitution, I don't think people would be having problems with their ruling.

I disagree with your reasoning here. Just because some people are having a problem with the Court's ruling, that does not mean that ruling is incorrect. I think that has to be based on the merits of the discussion. Disagreement, alone, does not constitute that a mistake was made.

M
[ March 04, 2005: Message edited by: Max Habibi ]

[Max Habibi]

Originally posted by Jason Menard:


Treaties are not just any international law. [ March 04, 2005: Message edited by: Jason Menard ]

Treaties are international law, even as they are also Americam law. Also, notice that the section I cited has a scope far greater than just Treaties. Accordingly, the refernce to International Law that Steve was asking for.

M
[ March 04, 2005: Message edited by: Max Habibi ]

[Max Habibi]

Originally posted by Steven Bell:


"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made..."

Article III section 2. I don't see international law in there anywhere.

Steve, I deleted your last post, which I felt was stated in a not-javaranch-friendly-way. I was going to PM it to for self-editing, but I can't seem to find your PM or email information. If you'd like to rephrase it and try again, then please do so.

[Steven Bell]

Fair enough. But why? It seems to me that the justices, not you and I, are best people to determine what the scope of cruel and unusual really means. Is it in the global context of humanity, or only the United States? Or is it some balance therein? Certainly, this speaks to the intent of the constitution, which the justices are quantified to speak to.

NO! This is not the role of justices. This is the role of the legislature. Why would a few people who are positioned for life be more qualified to make this decision over those people who are duly elected by the people?

It is reasonable because the United States Supreme Court determines the law of the land, and is not strictly limited to constitutional issues. While USSC must respect and interpret the constitution, the Supreme court also establishes America standards for indecency, reasonable search and seizure, and cruel and unusual punishment. AFIK, the justices have the right, and a responsibility, to consider as many facts as they feel is necessary in determining what those limits are.

Once again this is the job of the legislature. Ever wonder why there was a constitutional amendment against slavery??? It's because the courts do not have the power to change the law.

Treaties are international law, even as they are also Americam law. Also, notice that the section I cited has a scope far greater than just Treaties. Accordingly, the refernce to International Law that Steve was asking for.

It's fine that treaties are international law, but they only come into effect because they are put in place by the executive and legislative branchs of the government, NOT the judicial. There is no treaty mentioned in the court opinion so any reference to international law is ridiculous.

YES the USSC should 'blind themselves to what the rest of the world is doing'. It is the job of the legislature to define laws, they can look at the international community if they want to. There is a seperation of powers for a reason.

[fred rosenberger]

Remember, that's all the Supreme Court does - render decisions of Constitutionality.

But, that is NOT all the Court does. They do more than say "this law is/is not constitutional". If that were true, then they wouldn't be involved the appeals process. they could just look at the laws congress passes, say "yea/nay", and be done with it.

for example, they hear cases where there is a conflict in how a law is interpreted. most laws are not black and white. two federal disctrict courts can both look at a law and come to completly different conclusions. The 9th district (west coast) is EXTREMLY liberal. i'm sure that others are just as conservative. they can both rule on a federal law, and say the opposite thing.

now the USSC steps in. They are not deciding if the law is Constitutional, but WHICH INTERPRETATION, IF EITHER, IS CORRECT. if they don't like either interpretation, they say how it SHOULE be interpreted. this is one way how they end up making laws.
[ March 04, 2005: Message edited by: fred rosenberger ]

[Max Habibi]

Fair enough. But why? It seems to me that the justices, not you and I, are best people to determine what the scope of cruel and unusual really means. Is it in the global context of humanity, or only the United States? Or is it some balance therein? Certainly, this speaks to the intent of the constitution, which the justices are quantified to speak to.

NO! This is not the role of justices.


Steve, I need to understand your statement a little better. Are you suggesting that the United States Supreme Court is not supposed to interpret the constitution of the United States?


Once again this is the job of the legislature. Ever wonder why there was a constitutional amendment against slavery??? It's because the courts do not have the power to change the law.

This is simply and demonstrably incorrect. The Courts do have the power to change laws, if they feel that the laws are unconstitutional. You'll notice that they have, in fact, done so several times, for topics that are probably too controversial to include into this polite discussion.

YES the USSC should 'blind themselves to what the rest of the world is doing'. It is the job of the legislature to define laws, they can look at the international community if they want to. There is a separation of powers for a reason.

This is a very valid point. But let's follow this line of reasoning all the through.

Constitutional law trump non-constitution law. Where there is ambiguity about what constitutional laws meant, the courts un puzzle that ambiguity: that is their role and their job, though not their only role and job.

If the legislature feels that the courts are incorrect, then they can override the courts by passing a constitutional amendment. That is that separation of powers, and it's one of the wonderful ways that American society functions.

M
[ March 04, 2005: Message edited by: Max Habibi ]

[Steven Bell]

Originally posted by fred rosenberger:
this is how they end up making laws.

[ March 04, 2005: Message edited by: fred rosenberger ]

I can't believe I just saw somebody actually say that the corts make laws. Absolutly fricken ridiculous. It's this kind of civic ignorance that blows me away.

[fred rosenberger]

ok. let me rephrase it then. they don't MAKE the law. but they do decide WHAT THE LAW MEANS. HOW TO INTERPRET IT. WHETHER IT MEANS ONE THING OR ANOTHER. IF IT MEANS ANYTHING CLOSE TO WHAT THE ORIGINAL WRITERS MEANT OR SOMETHING COMPLETELY DIFFERENT.

is that better?

[Steven Bell]

If the courts find a law in conflict with the Constitution they are NOT empowered to change the law. They ARE empowered to revoke the law, stating the reasons for it's conflict with the constitution at which point the legislature can take another attempt at making the intent of the law work within the frame of the constitution, or just accept that they do not have such powers and forget about it or attempt a constitutional amendment.

The court only 'interprets' the constitution so far as deciding whether a law lies within the bounds of the consitution. It has been the sad history of the past few decades that the courts have been steadily stepping over the line and defining new laws where laws did not previously exist.

[Steven Bell]

Originally posted by fred rosenberger:
IF IT MEANS ANYTHING CLOSE TO WHAT THE ORIGINAL WRITERS MEANT OR SOMETHING COMPLETELY DIFFERENT.

is that better?

So you're telling me that a court can look at a law, ignore the intent of the law, ignore the intent of the writers of the law, and make up any meaning they want based on how they feel about the law?

Wow.

[fred rosenberger]

Steve, i agree with everything in your first paragrapha, and the first sentence of your second.

But i think you're missing what i'm saying. let's back up...

congress passes a bill, the president signs it. it's now a law.

somebody in california does something, is tried, and this law is applied/involved SOMEHOW in the case. they are convicted. they appeal. the 9th circuit court of appeals renders a verdict, and says "this new law means X".

now, somebody in Texas does something is tried, convicted, and appeals. the 5th district hears him, and in IT'S verdict says "this new law means Y".

so who is correct? the 5th (conservative view of the law) or the 9th (liberal view of the law)?

THAT's once way a case goes to the supreme court. since the law is supposed to be the same for everyone, SOMEBODY has to decide what the law means. THAT is part of the USSC. So no, they didn't write the law, they didn't pass the law, they didn't enact the law. but they decide how the law is applied IN ALL CASES in this country.

Now, do you think this is NOT their job? If so, who SHOULD decide/arbitrate the conflict?