One Nation, Under Other Nations

The runaway Supreme Court is at it again.

Today, the Court decided (PDF file) that states cannot execute murderers who are younger than 18. Whatever one's views on the propriety of the death penalty for minors, the Supreme Court in this opinion demonstrated once again that they are a renegade body, ruling by fiat as the kings and queens of old did.

Unable to find any reason in the Constitution itself for disallowing states to make their own laws in this matter, Justice Anthony Kennedy resorted instead to what we call "making it up as you go along." Said Kennedy:

The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual.

In other words, we the court, and we alone, will decide which "evolving standards" currently apply and are correct. We are the monarchs, and we make the rules.

He then hammers home this fine piece of judicial activism by once again appealing to the laws of other nations in writing his ruling:

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.

In other words, using no constitutional reasoning, Justice Kennedy simply saw fit to change a law that he personally disagreed with, and found some foreign judges to validate his opinion. The Supreme Court decided "You, the legislature representing the people, made a decision. But what you've decided offends us. We're bigger than you, so we're forcing you to do it our way." Constitutional reasoning is utterly irrelevent in this process. And the saddest part is, most Americans say "So? What's the problem?"

Justice Antonin Scalia, one of the final remaining voices of sanity in American law, vigorously dissented (joined by Justices Thomas and Rehnquist, in a dissent that should be read by everyone--it's just a beautiful piece of work), though it's doubtful that an ill-informed, under-educated American populace will notice his point and recognize that the Supreme Court is putting us under the sovereignty of foreign nations (italics in original):

What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency" of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." The Court thus proclaims itself sole arbiter of our Nation’s moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. 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.

Justice Sandra Day O'Connor also dissented from the ruling, but refused to join Scalia, instead affirming her own faith in foreign law as an arbiter for correct constitutional jurisprudence:

I disagree with Justice Scalia’s contention…that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency.

Catch that? According to Sandra Day O'Connor, the Supreme Court's job is not to apply the Constitution as written, but rather to be the national arbiter of "evolving standards of decency." Rather than allowing the people to decide what they regard as decent, the unelected Supreme Court will do it for them, thank you very much.

This Supreme Court will allow decisions about our national life to be made either by itself or by foreign courts--but not by We The People. It is long past time that the Congress of the United States assert its constitutionally-delegated power of impeachment against a lawless Court.