May
18

A Decent Regard For The Opinions Of Others

In yesterday's Supreme Court opinion ruling that juveniles may not be sentenced to life without possibility of parole in non-homicide cases, Justice Anthony Kennedy noted that life sentences for juveniles have been rejected "the world over." Kennedy wrote that the nations of the world find such sentences inconsistent with "basic principles of decency." To this, a rump of the Court cried foul. How dare we care what the world does! This is American, damn it. Love it or leave it.

Caring about what the world thinks is an unforgivable sin for the America First, crowd. Justice Clarence Thomas, the oral Sphinx of the Court, dipped his pen in the acid of arrogance and wrote that foreign law and practices are "irrelevant to the meaning of our Constitution." Such insularism was perhaps convenient and forgivable two centuries ago. Today it is a dangerous anachronism.

We are weeks away from silly season in Washington. Senators will sit somberly and fire questions at Supreme Court nominee Elana Kagan. She will most likely do her best to answer those questions while saying absolutely nothing. One salvo in the hearings will be her views on whether our law should heed international law and opinion.

Is there any doubt that we owe a decent respect to the opinions of the world? The very text of our constitution commands respect for international treaties, even if we refuse, to our shame, to sign such instruments as the Land Mine Treaty, or turn, stiff-necked, from the International Criminal Court.

The Supremacy Clause commands that treaties are a source of law in the United States. And recent cases such as Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) command respect for the law of nations.

The silliness associated with origninalism is best displayed when it comes to criticism of Kennedy for regarding the opinions of other nations. Why, we're bound by the framer's intent. Sovereignty means we go it alone, set our own course. U.S. out of the U.N., so the rhetoric goes.

This brand of necromancy may play for those who have a sense of fealty to the Mayflower's passengers. But most of us came here long after the framers were dead. People still keep coming here, try though we do to keep them out. The world is here. We ignore it at our peril. International law is lapping at our borders. Are we really prepared to dig a constitutional moat around the nation?

The decision in Graham v. Florida is welcome. Heeding emerging world opinion is necessary. Finding justices who can make moot the shrill screed of Justice Thomas is much to be desired.

The Graham decision is a triumph, and so is the logic supporting it.
Comments (1)
Posted on May 19, 2010 at 3:23 pm by Anonymous
Agreed.
Agreed.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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