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Friday, March 11, 2005

If Only ....
In National Review (digital version just out today), Judge Robert Bork deftly shreds the Supreme Court's recent Roper decision regarding the execution of murderers who were under 18 when they murdered. Here are some of the most damaging cuts:
The Court majority once more exhibited for all to see that dazzling combination of lawlessness and moral presumption which increasingly characterizes its Bill of Rights jurisprudence.

The Supreme Court, though conceding that retribution and deterrence are valid functions of the death penalty, intoned that "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." That means the justices' views evolve, which is, by definition, progress. ... The majority did not, and could not, explain why any state is forbidden to make a policy choice — denied its constitutional sovereignty — because other states disagree with it.

The Court ignored the fact that juries, unlike the Court, do not decide such issues categorically but by evaluation of the individual and must take youth into account as one mitigating factor.

Since the nations of Europe have, among others, abolished the death penalty, the Court seems to be suggesting that we (or rather the justices) should do likewise. After all, "[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual." If the meaning of a document over 200 years old can be affected by the current state of world opinion, James Madison and his colleagues labored in vain.
Judge Bork then moves on to analyzing where we are and where we're going.
What is really alarming about Roper and other cases citing foreign law (six justices now engage in that practice) is that the Court, in tacit coordination with foreign courts, is moving toward a global bill of rights. Neither our courts nor the foreign courts are bound by actual constitutions. Prof. Lino Graglia was quite right when he said that "the first and most important thing to know about American constitutional law is that it has virtually nothing to do with the Constitution." That is certainly the case with the Bill of Rights. From abortion to homosexual sodomy, from religion to political speech and pornography, from capital punishment to discrimination on the basis of race and sex, the Court is steadily remaking American political, social, and cultural life. As Justice Antonin Scalia once said in dissent, "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."

The courts of the United Kingdom, Canada, Israel, and almost all Western countries are doing the same thing, replacing the meaning of their charters with their own preferences. Nor are these judicial alterations random. The culture war evident in the United States is being waged internationally, both within individual nations and in international institutions and tribunals. It is a war for dominance between two moral visions of the future. One is the liberal-elite preference for radical personal autonomy and the other is the general public’s desire for some greater degree of community and social authority. Elite views are fairly uniform across national boundaries, and since American and foreign judges belong to elites and respond to elite views, judge-made constitutions tend to converge. It hardly matters what particular constitutions say or were understood to mean by those who adopted them.

Judges are not, of course, the only forces for a new elite global morality. Governments and non-governmental organizations are actively promoting treaties, conventions, and new institutions (the International Criminal Court, for example) that embody their view that sovereignty and nation-states are outmoded and that we must move toward regional or even global governance. American self-government and sovereignty would be submerged in a web of international regulations. The Supreme Court, in decisions like Roper, adds constitutional law to the web. That is the one strand, given our current acceptance of judicial supremacy, that cannot be rejected democratically. What is clear is that foreign elites understand the importance of having the Supreme Court on their side, which is precisely why their human-rights organizations have begun filing amicus briefs urging our Supreme Court to adopt the foreign, elite view of the American Constitution.

Roper is one more reason that it is urgent that the president nominate and battle for justices who will rein in a Court run amok.
If only Judge Bork had survived the confirmation process, Justice Kennedy would still be twiddling his thumbs wherever he was and we wouldn't have decisions like Roper to deal with. We would have a court more likely to uphold the constitution than trample it. If only ....

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