The Constitution's Death by 1000 Cuts

The Supreme Court of the United States struck down the laws of 19 states that enforced the death penalty for murderers who were as young as 16 at the time they committed their crimes. The constitutionally mandated minimum age, according to Justices Kennedy, Stevens, Breyer, Souter and Ginsburg in Roper v. Simmons, is now 18 because it is "cruel" to enforce a death penalty against a 17-year old. Why this is so, and the magical transformation that enables someone who is 18 today to have greater wisdom, foresight, intelligence, and the capacity to distinguish right from wrong than someone who is 18 tomorrow is a strange concept. And why does a 17-year old girl have the right to undertake an abortion without parental consent, while a 17-year old boy who tortures and kills an innocent is too young to be an "adult"? The decision is worrisome on so many levels, not least of all is the fact that the Court reverses a decision it made only 15 years ago allowing for certain juveniles to be put to death for their heinous intentionally murderous acts.

But here is the worst of the reasoning behind the Supreme Court's decision: use of international treaties to bolster the Court's reasoning. This is an insidious and dangerous turn of events in US jurisprudence, and a decision-making process heavily used by Ginsburg, Breyer and Kennedy. Here is former Asst. US Attorney Shannen Coffin's take from National Review's The Corner:

Justice Kennedy devotes an entire section of his opinion to examining how out of step U.S. death penalty practice is with the rest of the world. Thus, the "international" constitution once again rears its ugly head. It is no longer our right as Americans to define our own standards. Instead, we need to look to the U.N. Convention on the Rights of a Child to decide whether the State of Missouri can execute a seventeen-year old for the premeditated and cold hearted murder of random victim (who was tied, duct taped and thrown off a bridge, just for kicks). To be clear, this isn't a question about the propriety of the death penalty . . . It is a question of whether we should let 5 justices, who rely in part on international standards, to decide.

What's worse is that the Justices who are relying on these international authorities continually show an ignorance of international law, as Jonathan Adler notes:

A slight correction to the observation below: The second treaty that Kennedy cites is not the ICC treaty, but the International Covenant on Civil and Political Rights (ICCPR). This treaty was ratified by the U.S., but with the following reservation:

the United States reserves the right, subject to its Constitutional constraints, 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 crimes committed by persons below eighteen years of age.

In other words, the reservation nullified the specific claim at issue -- that U.S. participation in the ICCPR suggests the existence of a "national consensus" against the death penalty for juveniles. Justice Kennedy shrugs this off noting that the reservation was in 1992, and much has changed since then. (No, really, that's his argument.)

And Justice Scalia notes, on page 16 of his dissent, that another treaty the majority relied upon was NOT ratified by the US.

Here are a number of trends that have accelerated and threaten the United States Constitution and the United States' own sovereignty. First, the use of international treaties, conventions, protocols, etc. to reach a public policy determination under United States law in the Supreme Court's opinions (Lawrence v. Texas, Roper v. Simmons); second, the use of international court opinions as precedent (Lawrence); and third, the internationalization of Justice Kennedy. The last trend is becoming the worst of the bunch: Kennedy's reasoning has become progressively shoddier as he has relied upon international "standards" and attempted to adapt them for use in the United States.

The divide at the Supreme Court is now shaping up as internationalist versus constitutionalist: whether the justices will broaden the constitution by incorporating various international feel-good treaty provisions or just continue to work within the framework of US law. The next president, in other words, the one likely to replace internationalists like Stevens and/or Ginsburg, will be in a unique position to reverse these trends. That's why a Democratic victory in 2008 would be dangerous for American jurisprudence.