High court strikes down death penalty for juveniles

[Dr Strangelove]

However, as if to celebrate the lifting of a yoke around his neck this week a 14 year old A/B honor roll student shot to death his bus driver because she reported him for chewing tobacco on her bus. Will there be a back lash?

[Drake Tungsten]

Court Backs 3-Oxen Dowries

WASHINGTON, DC - In a far-reaching decision that will likely create complicated consequences for the American livestock and wedding-planning industries, the Supreme Court this morning ruled 5-4 that all US marriage dowries "must include three non-diseased oxen."

Writing for the majority, Justice Anthony Kennedy cited "the weight of the expansive penumbra surrounding the historically emerging and prevailing opinions of tribal shamans from Lesotho to Myanamar" in issuing the historic ruling in American Cattleman Association vs. Modern Bride, Helverson, et al.

In a scathing and sometimes caustic dissent, Judge Antonin Scalia wrote that "Holy. Freakin'. ****."

http://iowahawk.typepad.com/iowahawk/2005/03/court_backs_3ox.html

[asleepathewheel]

Why the **** does the US Supreme Court give a rip about other countries? sigh.

[Ramo]

It's not like whether or not a punishment is "unusual" has anything to do with whether it is Constitutionally prohibited. So that piece of satire is totally relevant, and thus hilarious.

[Whoha]

Re: High court strikes down death penalty for juveniles

"Justice Anthony Kennedy, writing for the majority, noted that most states don't allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice."

Hurrah for having judges decide on foreign law that we did not even vote for...

Originally posted by Imran Siddiqui

The Supreme Court is interpreter of the Constitution. The Bill of Rights says there shall be no cruel and unusual punishment.

What other states and nations do or do not do does not establish what is cruel or unusual.


[edit]the 50 or so friend of the court briefs filed weren't mentioned here[/edit]

[Wycoff]

Re: Re: High court strikes down death penalty for juveniles

Originally posted by Whoha
What other nations do or do not do does not establish what is cruel or unusual.

It is totally inappropriate for SCOTUS to use foreign practice as a guide for their decisions unless it is explicitly referencing English common law (since our system is based on that system, and sees value in old English precedents). If not, then its completely inappropriate for SCOTUS to refrence foreign law. Afterall, they're interpreting our Constitution, which was written and amended without referrence to foreign practice.

The only appropriate arena in which foreign practice can appropriate come into play is in the Legislature, where democratically accountable officials can use it in arguments to help persuade a majority of democratically elected and accountable officials that the US should also adopt the standards.

I appreciate Judicial Review and think that it rightly has an important place in US government. However, I think that it has to review things using a strictly American context.

[Imran Siddiqui]

What other nations do or do not do does not establish what is cruel or unusual.

Of course it does. I think we are one of the few Western countries that do not refer to international standards in our decisions. I think it's about time to do so in cases where terms like cruel and unusual are attempting to be defined. State courts regularly refer to precedent in other states as persuasive authority. I don't see why the SCOTUS shouldn't do the same?

And the US is bound by international customary law and historical common law which no one has ever voted for, so that isn't the best of arguments.

[Wycoff]

Originally posted by Imran Siddiqui
State courts regularly refer to precedent in other states as persuasive authority. I don't see why the SCOTUS shouldn't do the same?

The states are all have a common boundry which they cannot exceed: the US Constitution. We're part of the same country with the same set of basic laws. Besides, while other state law can be persuasive authority, its not mandatory authority. I've seen many cases of courts rejecting arguments built around holdings in other states. The reasoning for SCOTUS to substantially base its decisions on other western countries (countries such as France that doesn't have the common law, for example) is far less supportable and should be far less persuasive. Its not a very good analogy.

And the US is bound by international customary law and historical common law which no one has ever voted for, so that isn't the best of arguments.

The Senate approves treaties and legal agreements. We're not under the jurisdiction of the world court. Common Law precesents can be completely superceeded by statutes, which are written and passed by elected officials. Substantive Due Process (as you certainly know) is much harder to overcome; at the very least it would have to be overruled by a later SCOTUS opinion, but it'd most likely take a Constitutional Amendment to overturn. I think that SCOTUS is doing a disservice to the citizens of this country if it uses foreign law as a basis for a ruling that would be so difficult to overturn, no matter what the subject matter is.

This case, though dealing with Cruel and Unusual standards, might as well be dealing with Substantive Due Process, as it would be as hard to overturn.

[Imran Siddiqui]

The states are all have a common boundry which they cannot exceed: the US Constitution. We're part of the same country with the same set of basic laws. Besides, while other state law can be persuasive authority, its not mandatory authority. I've seen many cases of courts rejecting arguments built around holdings in other states. The reasoning for SCOTUS to substantially base its decisions on other western countries (countries such as France that doesn't have the common law, for example) is far less supportable and should be far less persuasive. Its not a very good analogy.

No, it's actually a very good analogy. States use other state's decisions on issues not related to the US Constitution in the slightest, such as in issues involving tort and contract. Tort and contract and all other sort of common law issues are seperate in the states and they do not have to reference other states' laws on the issue if they don't want to. They can be (and are at times) vastly different on the same issue (so same basic law argument doesn't fly).

And we are dealing with persuasive authority in this case. NO WHERE did it say it was mandatory authority. They used foriegn decisions as persuasive authority, which many countries in the West do (including Britain).

The Senate approves treaties and legal agreements.

Customary law is not approved, because it is not treaty. It is based on consistent practice.

I think that SCOTUS is doing a disservice to the citizens of this country if it uses foreign law as a basis for a ruling that would be so difficult to overturn, no matter what the subject matter is.

And I think that SCOTUS would do a disservice if it didn't look to foriegn courts reasoning in deciding what cruel and unusual actually is.

[Whoha]

Yea we don't do the whole international standards thing because we didn't vote for them. Scotus rules on our laws, that our representatives voted on and passed and signed, not something that some dictator decreed on some tuesday. Should we use Corruption of Blood? it was perfectly fine in all the countries in Europe at the time of the writing of the constitution. There is a reason the judges do not have that power and were not given it. Now if you wish to change that, there is a process for it. The founders realized that we may, from time to time, want to alter the constitution. We can in effect "amend" the constitution, but only if enough people(66-75% minimum, not 5 judges) agree to it.

How is the US bound by international customary law? In the way that nations are bound the the CWC and BWC? Common law generally applies to an area, so in Texas living with a woman for enough time makes you common law husband and wife, but I doubt that is the case in New York City.

[Wycoff]

Originally posted by Imran Siddiqui

The states are all have a common boundry which they cannot exceed: the US Constitution. We're part of the same country with the same set of basic laws. Besides, while other state law can be persuasive authority, its not mandatory authority. I've seen many cases of courts rejecting arguments built around holdings in other states. The reasoning for SCOTUS to substantially base its decisions on other western countries (countries such as France that doesn't have the common law, for example) is far less supportable and should be far less persuasive. Its not a very good analogy.

No, it's actually a very good analogy. States use other state's decisions on issues not related to the US Constitution in the slightest, such as in issues involving tort and contract. Tort and contract and all other sort of common law issues are seperate in the states and they do not have to reference other states' laws on the issue if they don't want to. They can be (and are at times) vastly different on the same issue (so same basic law argument doesn't fly).

And we are dealing with persuasive authority in this case. NO WHERE did it say it was mandatory authority. They used foriegn decisions as persuasive authority, which many countries in the West do (including Britain).

I understand the difference between state laws. I think that the fact that they are different states in the same country adds immensely to the potential persuasive power of contrary doctrine in other state's laws. Still, using other state's laws to argue a case in your state is a last resort step you take when arguing the case according to the precedent in your state would result in you losing the case. Resorting to refrencing laws of other countries would be a far greater reach, and much less persuasive than even laws in the other state.

Britain has incentive to take the precedents of other western European states into account because its in the EU along with those states. Though the EU is not a country, it is a relationship that, because of common standards (even enforced uniformity), ensures that Britain has much greater incentives to follow precedents set by other member countries. Would British courts be persuaded by practices common in South East Asia? Highly doubtful. Why should SCOTUS be persuaded by practices of EU countries? Its the job of the legislature to make such comparisions.

Customary law is not approved, because it is not treaty. It is based on consistent practice.

Such as? Are you referring to the rights protected under Substantice Due Process? The overwhelming majority of those rights are protected because of common internal practices, with no references to other countries.

And I think that SCOTUS would do a disservice if it didn't look to foriegn courts reasoning in deciding what cruel and unusual actually is.

Foreign practices may be looked at, but US practices, conventions, and precedents should be orders of magnitude more persuasive to SCOTUS. Again, its up to the the Legislatures to decide whether we should fall in-line with other countries.

It would be inappropriate if SCOTUS declared that the US should follow the Kyoto protocol because of foreign practices. I fail to see how using foreign practices as major persuasive material when deciding a constitutional matter much differs

[Imran Siddiqui]

Yea we don't do the whole international standards thing because we didn't vote for them.

We didn't vote for customary international law or common law either. Are you saying the common law should be struck down?

How is the US bound by international customary law?

The US must adhere to all international customary law unless it consistancy objects to the use of the custom whenever it is invoked. If there has been a practice which has been international policy for years (without international legislation), it is custom and states are bound.

Common law generally applies to an area, so in Texas living with a woman for enough time makes you common law husband and wife, but I doubt that is the case in New York City.

Define an 'area'. There is federal common law as well as state common law.

[Imran Siddiqui]

Still, using other state's laws to argue a case in your state is a last resort step you take when arguing the case according to the precedent in your state would result in you losing the case. Resorting to refrencing laws of other countries would be a far greater reach, and much less persuasive than even laws in the other state.

Not really. Using the laws of other states as an example of the common movement of the law can be very important in a case. Many cases have been ruled on the basis that other states are moving towards a view.

Britain has incentive to take the precedents of other western European states into account because its in the EU along with those states.

It's done so well before that. It's not rare to look at other state law to guide the court.

Such as?

Want me to cite cases?

The Paquete Habana dealt with the customary law of seizing fishing vessels of the opposing country during wartime. The Supreme Court (back in 1900), looked at old English law (Henry IV) as well as treaties made betwen France & the Holy Roman Emperor (Francis I and Charles V), French law under Louis XIV, as well as leading treatises on French law. In fact, it seems they used much more French precedent than British to decide the issue. That was back in 1900, well before the complaints of active judiciary.

Also there are cases were the customary crime against piracy was cited, even though the US had not defined it. The Supreme Court used customary law to determine how to define the crime of piracy. United States v. Smith, 1820. Piracy was defined as ius cogens, ie customary law which a country could not make reservations to.

Those are two of the main precedents

US practices, conventions, and precedents should be orders of magnitude more persuasive to SCOTUS.

And Kennedy did look at them as well. He also looked at the persuasive authority of foriegn practice, and decided that those combined indicated a movement country and international wide banning execution for those under 18.

[Zulu Elephant]

As far as Im concerned, the fewer people executed, the better - until the DP is abolished.

The reasons given are obviously pretty shoddy and if I disagreed with the decision I'd be spitting nails.

However, some people have argued that the court is overstepping its mark and that the legislature should be deciding these things. How does this compare to the court's decision to abolish segregation - isn't that an example of the court making a decision that would never (at the time) have been passed by congress due to public hostitility in many states

[Imran Siddiqui]

Originally posted by Zulu Elephant
However, some people have argued that the court is overstepping its mark and that the legislature should be deciding these things. How does this compare to the court's decision to abolish segregation - isn't that an example of the court making a decision that would never (at the time) have been passed by congress due to public hostitility in many states

Quite right Zulu (and that was argued back then)! Also Brown v. Board didn't really cite legal authority. It's main argument was how segregation makes black children feel inferior.