Monday, March 07, 2005

More Roper Questions

John Hinderaker of Powerline, writing at The Weekly Standard has more to say on Roper,(Justice Kennedy in quotations marks) :

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".

I return to my questioning? Where in the Constitution does it say to weigh judgments in light of world opinion? If the countries of the world consisted entirely of Communist-Stalinist states and Hitlerean-Nazi regimes, the result of some odd 1943 deal, the US left untouched, with a few other Asian kleptocracies under control of The Greater East Asia Co-prosperity sphere, all of whom favored abolishing Amendments 1 through 10, would Justice Kennedy cite "the opinion of the world community" and throw them all out? Of course not, (we hope). He would disagree, (we hope). And cite the Constitution, (we hope). To cite foreign opinions and then proclaim it "does not lessen our fidelity to the Constitution...", is a thumb on the scale!

A question to anyone who agrees with this decision, and ignored the points of law because of "opposition to the death penalty, no matter what! ". If the Constitution gets shucked again, and some judgment abhorrent to you pitched in, what will you argue then?

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