Tyranny of the Courts

The Supreme Court has just ruled, by a 5 to 4 vote, that the Constitution forbids the execution of convicted killers who were under the age of eighteen when they committed their crime.

Thus, the Supreme Court, the same court that says our Constitution requires us to permit innocent unborn children to be destroyed at any time, even up to the moment of birth, has concluded that the Constitution would prohibit us from executing Dylan Klebold, one of the Columbine murderers, or convicted Washington, D.C.-area sniper Lee Boyd Malvo, because they were both 17 years old at the time of their murder sprees.

The High Court said such executions are unconstitutionally cruel. As a result of this decision, the laws of 19 states have been struck down, highlighting the Court’s growing trend of stripping power from the states.

But what’s just as alarming is that the majority opinion of the court has once again cited other nations’ laws as a partial basis for its decision. Justice Kennedy wrote, “Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”

Kennedy went on to signal clearly that the Court would increasingly look abroad for guidance in interpreting our Constitution. He points out that the Court is building a tradition of referring “to the laws of other countries and to international authorities as instructive for its interpretation” of the Constitution.

The Supreme Court has already created a precedent for looking to the laws of other countries. In fact, in the 2003 Lawrence v. Texas case, which found a constitutionally protected right to homosexual sodomy, the majority opinion was guided by the pro-homosexual rulings of the European Court of Human Rights.

In the majority opinion, Justice Kennedy referred to a “Friend of the Court” brief submitted by Mary Robinson, former UN High Commissioner for Human Rights, which asserts, “This Court should not decide in a vacuum whether criminalization of same-sex sodomy between consenting adults violates constitutional guarantees of privacy and equal protection. Other nations with similar histories, legal systems, and political cultures have already answered these questions in the affirmative??¢â???¬ ¦This Court should pay due respect to these opinions of humankind.”

Robinson’s brief also stated, “Legal concepts like privacy, liberty, and equality, are not US property, but have global meaning. ” She argued that the US should be “construing these terms in light of foreign interpretations,” even warning the Court that “To ignore these precedents virtually ensures that this Court’s ruling will generate controversies with the United States’ closest global allies.”

In his dissent, Justice Antonin Scalia rightly condemned the importation of foreign laws in U.S. judicial deliberations. “Constitutional elements do not spring into existence as the Court seems to believe, because foreign nations decriminalize conduct??¢â???¬ ¦this court should not impose foreign moods, fads, or fashions on Americans.”

In yesterday’s death penalty case, Justice Scalia wrote another blistering response mocking the court’s majority decision, saying in part, “Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”

We can’t ignore what is happening here. Even if some believe that juveniles should not be eligible for the death penalty, or that homosexual conduct should not be illegal, those decisions should be made by the people of the United States expressing our will through our elected officials. As free men and women we have the right to fully debate the issue and then act accordingly in our states. Nineteen states have decided juveniles may be executed for heinous crimes. The rest of our states have decided that is not the approach they want. Under no circumstances should laws passed by the British Parliament, the French National Assembly, the German Bundestag or the European Union be a factor in deciding what is a permissible decision by the American people in our own self-governance.

While we are nobly trying to expand liberty in the Middle East, inattention to these judicial outrages is in danger of undermining liberty here. Our Founding Fathers knew that the best defense against dictatorship from the outside was strong national sovereignty. They understood this from seeing, feeling and suffering under the rule of the kings of Europe. Thus, they labored hard to set up a government strong enough to resist the influence of foreign law and yet weak enough so it would not enslave its own citizens.

Our only solution is a major change in who sits on the courts — a change unlikely to take place unless the White House and Congress move boldly to dismantle the Senate filibuster “road block” that threatens to stymie President Bush’s efforts to restore balance. Eliminating the filibuster of judicial nominees has been incorrectly called a “nuclear option,” meaning it is a radical solution. But the real radicalism is coming down on us from the courts, disguised in the cloak of judicial legitimacy.