Probably only Puritas Corbin will find this interesting
Maybe it is a good thing Amy turned off her combox on this post about an NPR story on religiously focused law schools. Most of the empahsis was on Regent and Liberty, with some mention of St. Thomas and Ave Maria. Amy heard it as a warning from NPR that conservative Christians are coming to a court room near you, and there is definitely some element of that in the story. Some of the remarks made in the interviews are counter that fear.
What has been eating at me is the whole "activist judge" criticism, which fits into this story. "We are a nation of laws, not of men." When laws are passed by legislatures that don't meet constitutional mustard, they get struck down. Controversial laws are gong to get challenged; that's a given. And the judges who get to review the laws all the way up to the Supreme Court, they are already determined and known. It's not like judges are grabbing at these laws and saying, I'll decide what's right around here. Someone has to pursue the challenge. If a law gets overturned because it is unconstitutional, than that is a sign that our system works! One of the lawyers on the NPR program lamented some of the gay marriage laws that are being challenged and struck down, how one judge defeats hundreds of millions of people. If the law was that important to you, why couldn't it be written to be able to weather the challenge? It's constitutional law, not rocket science. How hard is it to word and construct a bill to become a law that will meet constitutional standards? Especially if you have an idea what judges may have constitutional interpretations that could jeopardize a particular law---why wouldn't you cover the bases?
Here's a very concrete example. Planned Parenthood v. Casey was almost completely upheld in court except for husband notification. This was a major victory because at the time it was the most restrictive state abortion laws that were not struck down. In fact, this law was able to reinstate some elements of the Thornburgh law that had been previously ruled unconstitional. In Casey, the law was better framed.
I mean, is this that hard?
What has been eating at me is the whole "activist judge" criticism, which fits into this story. "We are a nation of laws, not of men." When laws are passed by legislatures that don't meet constitutional mustard, they get struck down. Controversial laws are gong to get challenged; that's a given. And the judges who get to review the laws all the way up to the Supreme Court, they are already determined and known. It's not like judges are grabbing at these laws and saying, I'll decide what's right around here. Someone has to pursue the challenge. If a law gets overturned because it is unconstitutional, than that is a sign that our system works! One of the lawyers on the NPR program lamented some of the gay marriage laws that are being challenged and struck down, how one judge defeats hundreds of millions of people. If the law was that important to you, why couldn't it be written to be able to weather the challenge? It's constitutional law, not rocket science. How hard is it to word and construct a bill to become a law that will meet constitutional standards? Especially if you have an idea what judges may have constitutional interpretations that could jeopardize a particular law---why wouldn't you cover the bases?
Here's a very concrete example. Planned Parenthood v. Casey was almost completely upheld in court except for husband notification. This was a major victory because at the time it was the most restrictive state abortion laws that were not struck down. In fact, this law was able to reinstate some elements of the Thornburgh law that had been previously ruled unconstitional. In Casey, the law was better framed.
I mean, is this that hard?
Comments
There's also some debate at a more fundamental level. Our governmental system is supposed to have three equal branches. Lots of people are making the case that the judicial branch's power now exceeds anything the Founders ever intended it to, which is effectively tipping the scales too much. That seems a debate worth having, too, in a representative republic. The legislative branch is supposed to be the voice of 'we the people' in this mix. I'd like to be sure that our voice has equal weight in the system, like it's supposed to.
Judical power exeeding the Founder's intent probalby has more to do with lifetime appointments for the big shot judges. I am still more comforatable with the supposed system that has review of our laws by an educated party. It isn't perfect, but if we just had laws passed on the whim of the people, segregation would be legal in Mississippi and Alabama, and no woman would have a prayer of equal wages for equal work. It isn't the prettiest system, but we would be worse off if popular whims governed us.
Justice Kennedy's actual words:
The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offenders under 18. See, eg Thompson, supra at 803-831, and n. 31. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lesson fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom. Pp 21-25
Deeper in opinion precedent cases are cited showing that "International standards" have been consulted in confirming the Court's standards for interpreting the Eighth Amendment which is already pretty subjective in the thresholds between suitable punishment and cruel and unusual. Previous cases that have done this include the judgements that have determined that you cannot lose your citizenship for commiting a crime and the more recent decision about executing the mentally retarded. Thompson, supra 830-831 and n.31 (noting
the abolition of the juvenile death penalty “by other nations that share our Anglo-American heritage, and by the leading members of the Western European community,”
and observing that “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual”).
As for the international treaty that wasn't even ratified by the U.S., the Surpeme Court does cite several, including one from the United Nations on Human Rights of Children that the only 2 nations that have not ratified it are the U.S. and Somolia.
U.K. law is also considered because the 8th amendment was modeled on English law, but again as a confirmation of what cruel and unusual in this situation.
O'Connor's dissent is easy to follow (the beauty of so many supreme court cases is that they are written so simply anyone who wants to take the time to read them can understand most of it). She writes that there is not substantial evidence to support the national consesus that juvenile penatly is C&U in light of several lstates setting the min age to 17, and that she feels that international treaties are not enough to say what Americans want.
Reading the opinions I have difficulty seeing why using international precedent to confirm the court's already determined opinion regarding Cruel and Unusual standards, which are always pretty subjectively defined anyway, is that big of a deal, except if you write a conservative column for the National Review, the words International or United Nations will get your readership in a lather.
But don't you just love the one argument that basically says without saying it so directly that we are the only white people that execute children.
But don't take my word for it....read it at
http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf