...The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion... ."
...And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability
... The Court's special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought. If we applied that approach today, our task would be an easy one. As we explained in Harmelin v. Michigan, 501 U. S. 957, 973-974 (1991), the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments " 'out of [the Judges'] Power' "--that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges. Under that reasoning, the death penalty for under-18 offenders would easily survive this challenge. The Court has, however--I think wrongly--long rejected a purely originalist approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation's current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War--and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists--a legal, political, and social culture quite different from our own. If we took the Court's directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge's ruling that was legally incorrect. We would also curtail our right to jury trial in criminal cases since, despite the jury system's deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.
Article comments
1 - Eric Olsen
excellent depth on the case, thanks!
We have to draw the line somewhere and if they can't vote, we shouldn't kill them. Of course, I am against the death penalty anyway.
2 - RJ
"the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases."
The 8th Amendment is the 8th Amendment. Public, or international, opinion should be moot here.
3 - RJ
"The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions."
Amen!
4 - Dave Nalle
That second dissenting opinion really does make an outstanding point. This isn't something that should have had to be settled by the Supreme Court. This is something that ought to have been handled legislatively.
Dave
5 - bhw
I always thought "penology" was something very different from what these guys think it is.
6 - jack
this is good.
7 - Aaman
the judgement, the dissents, or the post? I hope, the post.
Dave, you may be right, but if legislatures fail to act, sometimes it is necessary for the third pillar of a democracy - the judiciary - to step in, as has happened in the past
8 - luke
i thought this was interesting and insightful.