The United States has long been regarded, and has long regarded itself, as different from other nations. This belief is a natural heritage for a country that regarded its founding not just as the start of one new nation, but as a “New Order for the Ages.” Likewise, Americans have long considered the terms “New World” and “Old World” to be more than just geographical connotations. America is a country that set out to be different, to pioneer a way that the rest of the world could follow — an individualistic way towards liberty, justice, and republican democracy. America had the confidence to be a trailblazer.
That ended last week. Like so much of the ongoing deconstruction of the Republic, it ended not by referendum, or an act of Congress, or even by an executive order of an elected President. It ended by a 5-4 vote of the Supreme Court. There was remarkably little protest after the decision, so perhaps it was correct. Perhaps America has become just one jurisdiction among many, no different than France or China or Botswana.
The case I’m referring to is Roper v. Simmons, in which the Supreme Court decided March 1st to overturn the laws of 20 states, and place a blanket prohibition on the execution of any person for crimes committed while 16 or 17 years old. Previously, states had been allowed to consider each murderer on a case-by-case basis, taking into account the character and heinousness of his particular crimes. The cruel could be judged differently than the impetuous. Those that were just a few days from their eighteenth birthday could be judged differently than those that had just turned sixteen. The Supreme Court decided that juries cannot make such individual decisions any longer.
Regardless of how you feel about the death penalty in general or its application to 16 or 17 year-olds in particular, consider the implications of the logic the Court used to arrive at this pronouncement.
The Court decided that such sentences are unconstitutional, in part, because being one of the 20 states in which they are permitted (containing 42% of the population) is sufficiently unusual — compared to being among the 30 states in which they are not permitted — that the sentences should be prohibited under the Eighth Amendment’s ban on “cruel and unusual punishments.” Simply being in the minority — even a large minority — is prima facie evidence of being wrong. A Constitutional protection intended to prevent capricious courts from sentencing people to being boiled in oil or burned at the stake was thus invoked to overturn the standing laws of 40% of our states — laws that had been voted upon and signed by popularly-elected legislatures and governors. Knowing that 20 out of 50 can hardly be considered freakishly unusual, however, the court took their logic to an even more disturbing conclusion: such sentences must be wrong, it said, because they would make America different from the rest of the World.
I thought that was the whole point of America. But the Supreme Court disagrees. The laws of the United States, it has decided, are to be judged not just by our precedents and Constitution, but by the laws of all other nations as well. Apparently, truth is to be found in the middle of the pack and American law works best when averaged with that of other nations. The court will no longer be embarrassed by America being so exceptional.
Democracy in the 20 states in question — New Hampshire, North Carolina, Texas, Utah, Arizona, Delaware, Kentucky, Florida, Alabama, Missouri, Virginia, Idaho, Mississippi, Nevada, Oklahoma, Georgia, Pennsylvania, Louisiana, Arkansas, and South Carolina — is all well and good, the Court ruled, but how can that compare with the “African Charter on the Rights and Welfare of the Child”, the “Pact of San Jose”, or the “United Nations Convention on the Rights of the Child” (all cited in the decision)? Do we really want to have laws, the court so much as asked, that would meet with the disapproval of the “Human Rights Committee of the Bar of England and Wales”? The very thought makes me, of course, plum uncomfortable.
This is not the first time this court has used foreign law in its decisions, either. In a 1999 case, Justice Stephen Breyer cited a ruling of the Supreme Court of Zimbabwe, among other non-relevant sources, to bolster his claim that, because judges like he interfere in it so much, the death penalty should be banned altogether. He did not explain, however, how the court system of Zimbabwe is accountable to the voters of the United States. And in the 2003 case lifting state bans on Sodomy, Lawrence v. Texas, the court cited an act of the British Parliament, a ruling of the European Court of Human Rights, and provisions of the European Convention on Human Rights. Again, it is unclear how any of these institutions are relevant to the United States Supreme Court, except that they give the left-leaning Justices the kinds of laws they really want to rule by and save them the trouble of having to twist actual United States law so creatively.
America is justifiably proud of its tradition of the “Rule of Law”. Under this principal, we are governed by known and clear rules — agreed to in advance — that apply equally to every citizen. But when Judges can capriciously choose from a grab-bag of the laws of any nation, without notice and without the input of America’s citizens, we can no longer be said to live under the rule of law. Neither can we be said to be a democracy, for we are ruled by the laws of legislatures we did not choose and can never change with our votes. Worse yet, we are ruled not just by one unaccountable source, but by a strange amalgam of all foreign law. The goal apparently being to ensure that America neither leads nor lags, but seeks instead the anonymity and absence of responsibility of the crowd. America has been often described as a meritocracy, but under the rule of our new Supreme Court we might better be described as a “Mediocracy”, a self-conscious nation engaged in a timid race toward the average. The fact that our Congress does nothing to correct the imposed Mediocracy can indicate only that it shares the Court’s goal: an unexceptional America ruled by an interchangeable internationalist elite.