I’ve read Justice Scalia’s dissent to this week’s Supreme Court decision that outlawed the death penalty for 16- and 17-year olds. (In 1988, the Court outlawed the death penalty for anyone under 16.) As often happens to me when I read Supreme Court cases, I start off with a one opinion and then read the opposing view and think, “Well, actually, he’s got a point, too.” I’m particularly susceptible to Scalia’s opinions in this regard, because — despite his arrogance — he’s such an effective writer. If only he would use his powers for good.
Scalia rails against Justice Kennedy’s majority opinion for saying, in Scalia’s words, that “American law should conform to the laws of the rest of the world.” Kennedy cited the fact that a majority of nations have outlawed the death penalty for minors as support for outlawing it in the United States as well. (Cultural conservatives must be furious with Kennedy, a Reagan appointee; in addition to this case, he also wrote the majority opinion in Lawrence v. Texas, which not only outlawed anti-sodomy laws but cited the European Court of Human Rights in doing so.)
Except what Kennedy wrote is not what Scalia said he wrote. Kennedy did not write that “American law should conform to the laws of the rest of the world” but that “[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” (My emphasis.)
Doesn’t it make sense to look outside our own nation when interpreting the Eighth Amendment? Any interpretation of the amendment turns on the phrase “cruel and unusual punishments.” One writer notes that the phrase “cruel and unusual punishment” first appeared in the English Bill of Rights of 1689. Shouldn’t it be okay to look outside our own nation in interpreting a phrase that we borrowed from another country? If “cruel and unusual punishment” no longer means in its country of origin what it used to mean, why should it be static in our own?
Scalia sarcastically writes that if we’re going to look at what Britain does, we should also follow Britain’s lead in “relaxing our double jeopardy prohibition” and “curtail[ing] 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.” But double jeopardy and trial-by-jury are procedural issues. We’re talking about killing people. The fact that Scalia can’t make the distinction speaks for itself.
Anyway, we’re not talking about letting world opinion control us here; that’s just the icing on the cake. In any event, we shouldn’t ignore the rest of the world completely. I’m sick and tired of hearing about American exceptionalism. Our country is not inherently better than any other country. To believe otherwise is just childish.
And you know what? Screw constitutional interpretation and legal opinions. I think the death penalty is wrong, and that’s that. Killing someone when you’ve already got that person behind bars is unjustifiable. Scalia can bloviate all he wants about the right of “the people” to make their own laws. But if it’s democracy versus human life, I think human life should win. Scalia, unfortunately and unsurprisingly, is blinded by his ideology.
I always enjoy reading or listening to his positions because they are so well crafted. But, he certainly is a great communicator for the radical right.
So your sick of American exceptionalism, but white European exceptionalism is O.K.? If using a foreign standard is O.K. in this case then surely you won’t object when the court uses Shariah law to authorize the killing of Jews and homosexuals here in the states. To say that European law is good, but Muslim law is bad is inherently racist. That’s why American exceptionalism is so important. We live by our own standards and laws and not someone else’s.
I object to the death penalty, but this ruling is wrong. Rather than reverse itself on a ruling it made just 15 years ago it suddenly cites public opinion in a minority of states and European law to justify a decision. This is a bad path to go down, but you support it as a means to an end.
I somehow doubt you’ll be doing that if it’s a ruling you don’t like.
Funny. What I said was: “Anyway, we’re not talking about letting world opinion control us here; that’s just the icing on the cake.” But go ahead and twist my meaning, why don’t you.
Not sure where you got the idea that I was praising “white European exceptionalism.” The U.S. was in the company of a mere seven other nations in the world in allowing the death penalty for minors. Tell me the number/percentage of nations that practice Shariah. It’s pretty small.
Also, you apparently didn’t read my final paragraph.
“But if it’s democracy versus human life, I think human life should win.”
Interesting quote. Made me immediately jump to abortion cases. So… presumably all abortions after 24 weeks should be outlawed, since that’s the point of viability. And don’t get me started on developing human lives in weeks 1-23.
Or, more accurately, I should have said, all abortions after 24 weeks where the life of the mother is not threatened, since presumably life vs. life is different than democracy vs. life.
What I loved about Scalia’s opinion (even though he’s batshit crazy sometimes) was that he brought up an interesting point: if a 16 year old is adult enough to have an abortion without parental consent, isn’t she old enough to be executed? That I believe the death penalty is wrong is beside the point: Scalia’s right. The court can’t have it both ways, and now they certainly are. His bringing up the AMA’s conflicting amicus briefs for both capital punishment and abortion was pretty foxy.
I caught that, too, and it was an interesting point. I’m sure there’s some way to argue a distinction if one really wanted to, but yeah… he was right about that.
Hey Tin Man, if my post came off as an attack I’m sorry. I very much enjoy your blog and appreciate that even if we probably don’t agree on most issues, you are a well informed guy who takes the time to go beyond the headlines.
The point I was making is that the courts citing of European law over say muslim law is inherently saying that one is superior over another and that is no different than American exceptionalism. It’s just caucasion exceptionalism. Even though I agree with the end result, how they got there is a dangerous precedent and Scalia is pointing that out. We would be howling in fury if they chose a foreign body of law or public opinion to rationalize banning gay marriage.
I did misinterpret your tone, Mitch; sorry about that.
I still don’t think the Court was giving preference to Western law over Muslim law, though. It never even comes up. In part IV of the decision, the part that talks about the rest of the world, Kennedy cites the United Nations and the United Kingdom. He only cites the U.K. “in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins” (though I think the latter is more important here).
On the other hand, I do imagine the case could have turned out differently if the “seven countries other than the United States [that] have executed juvenile offenders since 1990” were the U.K., France, Germany, Spain, Italy, Canada and Japan. But they weren’t, and I don’t think we want to be in the company of Iran, Saudi Arabia, or Pakistan when it comes to human rights.
As I said, while it would be bad to blindly do what the rest of the world does, I don’t see anything wrong with examining the practices of other nations in deciding cases, as long as it’s just one factor among others that are taken into account.
It is funny that Scalia and his supporters are so worried that people in the United States might look at what other countries are doing to determine what we should be doing. This same crowd keeps blathering about our need to base our laws on Judeo-Christian rules (e.g., 10 Commandments). Weren’t these rules developed in the Middle East?
Homer-
I’m pretty sure the 10 Commandments were developed somewhere other than the Middle East, and were merely transcribed by a resident of the area based upon a conversation he had.
Cheers.
—“if a 16 year old is adult enough to have an abortion without parental consent, isn’t she old enough to be executed?”—
This argument is only valid if you believe that abortion and the death penalty are the same thing. The death penalty is the killing of a citizen by a government or other entity like the church. Abortion is the termination of a pregnancy. I find it hard to equate the two — though obviously many people are quick to make the comparison, and feel that a person can’t be against one while being for the other.
But if this is Scalia’s argument, it’s juvenile, and it suggests that he supports the woman’s right to abort, which I doubt he does.
No, Tom, the point appears to be- if we allow a 16-year old to act as an adult and make a decision to have an abortion, why can’t we assume that a 16-year old acted as an adult when commiting the kind of crime for which the death penalty is the adult punishment?
Similarly, the issue comes up in states that require a 16-year old to get parental consent to get a tattoo, but don’t require parental consent to get an abortion. Or, alternatively, when people argue why we allow 18-year olds in the armed forces but don’t allow them to drink.
The debate is about at what age teens become “Adults” in the eyes of the law. And indeed, as mentioned above, the AMA wants 16-year olds to be adults on one issue (abortion) but not on another (criminal).
So you make a nice try in attempting to equate Scalia’s argument with “abortion/death penalty = same thing” but that’s not what he was saying.
But I think the “abortion/death penalty = same thing” argument is exactly what he’s making. The issue of the case may be the universal one of when is it that any person becomes an adult, but the anti-abortion sentiment is there. You, in fact, were the first person in these comments to “jump to abortion cases,” and said that the AMA is trying to have it both ways. But you’re comparing punishment to a medical procedure.
In my view, it isn’t valid to compare the government’s desire to kill someone and to fix the age at which they can do so, to a woman’s desire to end her pregnancy with or without parental notification, or, for that matter, tattoos, driver’s licenses, smoking, the military, drinking, draft registration, R-rated movies, porn or any other age-related issue that may come up.
As much as i disagree with many of Scalia’s positions, i don’t see the comparison (i.e., 16yo’s abortive powers vs culpability of murder) as juvinile, at all. I think poorly reasoned Leftist reactionary-rhetoric, which has never endeared us to the centrist faction in America.
He’s arguing his position from the terrain the Left has built, which is quite smart — and that’s the type of tactic that makes his positions so persuasive.
Actually, Tom, although it is true I brought up abortion first as an interesting comparison, it’s JonWCollins (reply 6) who first mentioned the AMA and Scalia’s tactics re: age discrepancies.
I still believe that the issue Scalia is zeroing in on, and that is frustrating some, is the AMA (and others, but we’ll focus on them) is arguing for two different standards of adulthood. There IS an inherent conflict- is a person an adult at 16, or 18, or 21? And should we have different ages of adulthood for different legal matters? If so, why?
I don’t support the death penalty at any age, so I don’t care if a criminal is 16 or 61. I just think that the age issue is going to have to be consistent at some point based on an opinion of adulthood, not varying issue-tied opinions of partisan convenience.
Just a comment on the relative superiority of European versus Muslim law. As a European citizen, it seems obvious to me that European law IS superior to Muslim law. As is any legal or judicial system that is based on the core ideals of reason, individual equality before the law, the right to an appeal, and most fundamental to this argument, the right not to be executed as a response to a crime. Across the European Union, the death sentence has been abolished and it is a pre-requisite of membership for new states wishing to join. To suggest that a system such as Sharia law, which takes at least part of its legitamacy from a religious text, is not inferior seems to me ludicrous, and an affront to the values of the Enlightenment, a heritage shared by Europeans and Americans alike. Any suggestion of superiority is not “inherently racist”, as was (incorrectly implied). It is a question of a legal system based on reason, versus one based on religion. Take your pick.
*** end rant ***
:o)
European Law, Napoleanic, Islamic Sharia, etc. all find their core values in what is best described as the Wholly Transcendant. Any notions of justice, truth, right/wrong, and even Quality, all have their base in this.