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A Government of Men

Justice Kennedy changes his mind. Amazingly, he found that the Constitution changed with him.

11:00 PM, Mar 6, 2005 • By JOHN HINDERAKER
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ON MARCH 1, 2005, in a case titled Roper v. Simmons, the United States Supreme Court held, by a five to four majority, that the Eighth Amendment's proscription of "cruel and unusual punishments" bars imposition of the death penalty on those aged between 15 and 17 years at the time they commit a capital crime. The crime that gave rise to the Court's ruling was summarized in Justice Anthony Kennedy's majority opinion:

At the age of 17 . . . Christopher Simmons, the respondent here, committed murder. . . . Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan. . . . Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors.

Simmons and an accomplice carried out the crime just as he had envisioned it. They threw a woman named Shirley Cook off a railroad trestle, securely bound so that she drowned in the river below.

The most controversial aspect of the Roper decision has been its reliance on foreign law. In recent years, the Court has, on several occasions, bolstered its opinions by arguing that its conclusions are consistent with public opinion in countries other than the United States. This form of reasoning, which has no apparent basis in our Constitution or statutes, seems to have come to full fruition in Roper.

Justice Kennedy tried to articulate a rationale for referring to the laws of other countries. It is not unfair to say, however, that his attempted rationale consists of nothing but fine words, which contain no explanation of how, why, and when the opinions of non-Americans become relevant to our Constitutional jurisprudence:

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.

Kennedy continues:

The opinion of the world community, while not controlling the outcome, does provide respected and significant confirmation for our own conclusions.

He concludes:

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmations of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Which raises two questions: Isn't weighing the "instability and emotional imbalance of young people" exactly the kind of thing that legislatures--the peoples' elected representatives--are supposed to do? And why, if the Court's conclusions are based on the Constitution and laws of the United States, is "the opinion of the world community" a factor in the Court's conclusion?

It does "lessen [the Court's] fidelity to the Constitution" when the Court gives the actions of foreign governments priority over the text of the Constitution, the laws enacted, in this case, by the legislatures of 20 states, and the clearly expressed preferences of the majority of Americans. With all due respect to the Court's majority, there is simply no coherent rationale for counting the "enlightened" opinion of foreign governments as a factor in Constitutional jurisprudence.

ONE OBVIOUS PROBLEM with the Court's endorsement of a standard as vague as "international opinion" is that there is no way to know when that standard will be deemed relevant. As Justice Scalia noted in his dissent, American law, including Constitutional law, is in a distinct minority on many issues. For example, the United States is one of only six countries that permit abortion on demand up to the point of viability. Why isn't international opinion on abortion as pertinent as international opinion on the death penalty?

In reality, of course, the "international opinion" standard is appealing to some justices precisely because it gives them unfettered discretion to pick and choose the "opinions" that should influence American law. At the end of the day, the opinions the justices are really deferring to are their own. The new standard of "international opinion" is just one more vehicle that allows Supreme Court justices to make up the law as they go along.