One can’t help but wonder if Justice Anthony Kennedy has seen The Aviator. In the film, Howard Hughes’ antagonist, Senator Owen Brewster, suggests that the American people will benefit from having only a single airline fly internationally between the United States and Europe. As support for his proposition, he cites the strength of Air France.
Today, of course, we all know better. An airline monopoly leads only to fewer routes, higher prices, and poorer service. But back in Hughes’ time, the elites really did look to heavy government intervention in foreign economies with a sense that such involvement might well be the wave of the future.
The more things change, the more they stay the same. Americans have pretty well decided that more government control of the economy is decidedly not better. But even so, the elites simply can’t give up the notion of looking abroad for moral, if not economic, guidance.
And that leads us back to Anthony Kennedy, the author of the Supreme Court opinion deeming that execution of any criminal under the age of 18 is unconstitutional. To justify his position, Justice Kennedy invoked ”the overwhelming weight of international opinion against the juvenile death penalty.” (In so doing, of course, he ignored the 20 states that do allow such executions under certain circumstances.)
The entire exercise was illegitimate. The role of the Supreme Court isn’t to identify “trends” or guess at the “national consensus” (which is properly expressed through the people’s elected representatives, not the courts). It most certainly isn’t to rely on “international opinion.” The Supreme Court, quite simply, is supposed to interpret the Constitution — the American Constitution — as it is, not as they wish it were. The Court’s proper function is nothing more, nothing less.
It’s certainly a safe bet that Justice Kennedy’s invocation of “world opinion” is selective, at best — particularly given that much of the world still tolerates slavery, the mistreatment of women, a level of governmental corruption unimaginable to Americans and, increasingly, a significant level of anti-Semitism.
But even restricting the Supreme Court’s jurisprudential reliance to the legal precedents of Europe would yield some strange, and distressing, outcomes. After all, in Britain, there is no Establishment Clause (prohibiting any establishment of a national religion) as found in our own First Amendment — the Queen is the head of the Church of England. Our Constitution protects individual rights; the European Union Constitution does not. The French Constitution doesn’t mention a free speech right at all. Under the German Constitution, civil rights are guaranteed only to German nationals. And a “duty to work” is grounded in Article 4 of the Italian Constitution.
Just as each European country’s Constitution is intended to reflect its own unique history and national character, so the American Constitution is uniquely American. The views and laws of other countries may certainly be taken into account by America’s legislators, but they are not at all relevant to the interpretation of our Constitution by judges.
Indeed, when the Founding Fathers ratified the American Constitution in 1789, they could never have foreseen a day when it would be interpreted in accordance with the opinions of foreign countries. At that time, France was just embarking on its own, infinitely bloodier Revolution; England was enmeshed in a Regency Crisis. Above all, in seeking independence and drafting the Constitution, our Founding Fathers were attempting to establish a system of government that was independent of and superior to European forms — not reliant upon them.
How sad they would be to realize that more than a century later, Anthony Kennedy would spurn that proud, brave approach. The first American elites realized that America’s strength was in its willingness to be unique. How utterly disappointing that so many of the “leaders” who have followed them — whether in Howard Hughes’ day or our own — have an entirely different perspective.
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