More on Roper v Simmons

John Hinderaker of Powerline, in an excellent article in the Weekly Standard has critiqued the Roper v Simmons ruling by the Supreme court.

Justice Kennedy tried to articulate

a rationale for referring to the laws of other countries. It is not unfair to say, however, that his attempted rationale consists of nothing but fine words, which contain no explanation of how, why, and when the opinions of non-Americans become relevant to our Constitutional jurisprudence:

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.

Kennedy continues:

The opinion of the world community, while not controlling the outcome, does provide respected and significant confirmation for our own conclusions.

He concludes:

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmations of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Which raises two questions: Isn't weighing the "instability and emotional imbalance of young people" exactly the kind of thing that legislatures--the peoples' elected representatives--are supposed to do? And why, if the Court's conclusions are based on the Constitution and laws of the United States, is "the opinion of the world community" a factor in the Court's conclusion?

It does "lessen [the Court's] fidelity to the Constitution" when the Court gives the actions of foreign governments priority over the text of the Constitution, the laws enacted, in this case, by the legislatures of 20 states, and the clearly expressed preferences of the majority of Americans. With all due respect to the Court's majority, there is simply no coherent rationale for counting the "enlightened" opinion of foreign governments as a factor in Constitutional jurisprudence.

Read the whole thing.

New Sisyphus has a long essay on the case and the ruling but it is well worth reading in its entirety.

What a Difference a Day Makes

The "Roper v Simmons" case and opinion by the SCOTUS leave as many questions as it answers. A synopsis of the case and the dissenting opinions can be found here. Professor Bainbridge has several post on this decision here, here, here, and here. He is opposed to the death penalty but has a serious problem with how and why the Court came to its majority opinion.

I'm increasingly opposed to the death penalty on both pragmatic and moral grounds, but I nevertheless found much to agree with in Justice Antonin Scalia's scathing dissent from the Supreme Court's 5-4 decision striking down the death penalty for offenses committed by juveniles (text of opinion):

• In Lawrence v. Texas, Justice Kennedy essentially said that legislatures may not base laws on moral judgments. Hence, it was unconstitutional for legislatures to ban sodomy because legislators thought it was immoral. For the majority in Roper v. Simmons, however, Justice Kennedy claims that its perfectly appropriate for the Supreme Court to consider morality in deciding whether something is unconstitutional. Could there be a clearer example of how judges have usurped the legislative function in our country? As Scalia put it:

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.

• In the past, the Supreme Court has held that someone under the age of 18 can be mature enough to make the decision to abort a baby. Yet, now, the Court says a person under 18 is too immature to be executed following a fair trial. So minors are allowed to kill, but not to be killed? What kind of logic is that? As Scalia put it:

In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. ... It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.

Once again, nine old men and women in robes have elevated themselves into a super-legislature in which they have exercised privileges they deny to our elected representatives. So much for having a democracy. Indeed, at this rate, so much for having a republic.

Orin Kerr at Volokh has more and he is not a happy camper either. He writes:

Roper v. Simmons and Capital Litigation: I have just finished working my way through the opinions in Roper v. Simmons. As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law

There is more, read it all. The Deacon at Powerline is also looking at this SCOTUS decision and is less than complementary.

My comments yesterday about the Supreme Court's decision overturning all statutes providing for the execution of juvenile murderers focused on the Court's reliance on foreign sentiment -- or, more precisely, on the treaties that foreign governments have signed that relate to the issue. The Supreme Court's propensity to defer to what foreigners think is a disturbing trend about which we have occasionally commented. However, it is not our only, or even our primary, objection to Justice Kennedy's opinion. Indeed, I noted that the majority's reference to foreign practice is a symptom of the problem, not the problem itself. The underlying problem is that the Supreme Court is "just making it up."

He also has a view on Court nominees and the past as well as the future.

One of our local D.A.s in Randall Co., Texas has some more to add. There are two individual cases in that county that this impacts.Via the Amarillo Globe News.

Randall County Criminal District Attorney James Farren called the justices' decision sophomoric and silly.

"We don't have to draw a line," Farren said. "We can evaluate each case for the maturity of the defendant and the evidence of future dangerousness. Age does not equal maturity."

Farren said Soriano and Dickens likely will be eligible for parole soon.

Farren said the justices' decision disregards the decisions of jurors who evaluate each case and give the death penalty if appropriate.

"They don't just crank out death penalties," Farren said. "They look at it on a case-by-case basis and not simply based on a date of birth."

Farren said it's likely now older gang members will use younger gang members as "designated killers" because they won't face the death penalty.

"It just expands the pool of people who don't have to worry about the death penalty," he said.

He said other provisions in the law, like those allowing juveniles to be tried as adults and those disallowing death penalty for the mentally retarded, show that the system considers factors other than age. But this new decision shows the opposite, he said.

Current state law prohibits seeking the death penalty for those younger than 17. Tuesday's decision adds those who are 17.

Sleep tight ya'll.

UPDATE: Another view from a James Piotrowski, self described "lawyer who practices constitutional law among other things." ( is mainly involed in labor law and personal injury) states:

The phrase "cruel and unusual punishment" is inherently subjective. It's not like the S.Ct. can go looking for some objective definition of the phrase and simply apply it. For nearly 50 years the law in the US has been that "cruel and unusual" must be considered in the context of "evolving moral standards." I think this formulation reflects the reality of human moral development. What we, as a nation, were willing to do in 1791 is substantially different than what we are willing to do today.

The dispute between Justice Scalia and the majority in Roper v. Simmons has at least two distinct aspects. First, Justice Scalia disagress with the majority's method of determining whether a national consensus exists on the question of executing minors. Second, he finds fault with teh majority's consideration of international standards.

As to the first disagreement, Scalia would, in essence, disenfranchise the citizens of 12 states. He actually argues that in trying to determine whether a national consensus exists on the question whether it is ever appropriate to execute minors, that we should not even consider the opinions of citizens in those 12 states which have abolished the death penalty altogether. In Scalia's view, when we try to decide whether executing minors is within or outside the boundaries of national morals, the dispute must be resolved by ONLY considering the views of those states that believe in the death penalty. In other words, Scalia's opinion is that only 18 states both have the death penalty but prohibit exceuction of minors, while 20 states permit the execution of minors, and on that basis there's no consensus. For some reason, the other 12 states, which have concluded that it is NEVER proper to execute ANYONE simply don't matter. Since they disagree with Scalia on the very first premise (that execution is ever permissible), Scalia entirely discounts their opinion.

On the second issue, Scalia tries to do some good PR (and some horrendous jurisprudence) by finding fault with the majority for even discussing international ethical and moral standards. He actually claims that "the views of other countries and the co-called international community take center stage" in the majority's opinion. This is a complete mischaracterization of the majority's opinion. The majority looked to international standards only AFTER it had reached a conclusion as to a national consensus within America. And it looked to international standards ONLY to provide further confirmation that human moral standards on this issue are, in fact, evolving in the direction the majority asserts. If one entirely removed the majority's discussion of international standards, the opinion would reach exactly the same conclusion. Far from center stage, international opinion was a mere sideshow in the majority's opinion. Scalia delivers his scathing dissent mainly, it appears, for the purpose of casting aspersions on the majority and of providing grist for the conservative commentators' mills. Good PR, but abysmal jurisprudence.

He follows up with this:

I think your understanding of the role of the Court and of state rights is far too limited. Yes, the Court overturned the laws of 20 states that permit execution of children. But they did so based on their construction of the constitution. That is precisely their constitutional power. You may disagree with the result, but not with their right to find that certain state laws violate the constitution. That is the Court's power, and only its power. I dont' quite know what you are saying about reversing the prior opinion without reversing the prior opinion. I thought it was pretty clear they were reversing the prior opinion, and had no confusion on that front, myself. They are permitted to reverse themselves, and have done so many times. There are good reasons why they should use that power sparingly and they do, but still they have the power. Also, they aren't "making laws." They are interpreting the laws that exist. Your argument seems to assume that the law is clear and all we need do is apply it. If that were the case, we would barely need courts. The law is rarely clear, and when it is, someone will come up with a scheme to take advantage of a previously unseen ambiguity in it. Do you think "cruel and unusual" is an objective standard? If so, you are either substantially smarter or substantially less-informed than every single one of the justices to sit on the S.Ct. for the last 50 years.

The reference to international law is called dicta. The decision didn't turn on it, it has no real precedential value, it is more in the nature of external verification of an opinion already reached.

As to a bio, you can just call me a "lawyer who practices constitutional law among other things."

James just clarified his practice "Tom, I don't actually do any personal injury law as you've stated on your blog. You are correct though that I mainly practice labor law. Wouldn't want to mislead anyone as to my practice areas, which are mainly labor and employment law, with a healthy dose of constitutional law. I don't presently have any personal injury cases, and it's been a long time since I did."

Still alive

I have not died, just been gone. There is so much to consume and digest that it will take some time to get back in step. Thanks for the e-mails and I promise I will put my nose to the grindstone and post some more insightful and inciteful words of wisdom shortly.

Amazing Patience

I must say that the Shia in Iraq are showing amazing patience and a willingness to hold back on reprisals toward the Sunni facions. The Sunni Ba'athists have caused havoc in the country as has the "foreign" terrorists but for possibly different reasons. The "foreign" jihadists have been doing everything they can to cause a sectarian civil war and until recently the Sunni Ba'athists have been willing participants, but this seems to be changing. This AP report gives a glimpse into the thinking process of some Sunni.

"We made a big mistake when we didn't vote," said Sheik Hathal Younis Yahiya, 49, a representative from northern Nineveh. "Our votes were very important."
He said threats from insurgents — not sectarian differences — kept most Sunnis from voting...
Gathering in a central Baghdad hotel, about 70 tribal leaders from the provinces of Baghdad, Kirkuk, Salaheddin, Diyala, Anbar and Nineveh, tried to devise a strategy for participation in a future government. There was an air of desperation in some quarters of the smoke-filled conference room.

"When we said that we are not going to take part, that didn't mean that we are not going to take part in the political process. We have to take part in the political process and draft the new constitution," said Adnan al-Duleimi, the head of Sunni Endowments...

Meanwhile, a powerful Sunni organization believed to have ties with the insurgents sought Sunday to condemn the weekend attacks that left nearly 100 Iraqis dead.
"We won't remain silent over those crimes which target the Iraqi people Sunnis or Shiites, Islamic or non-Islamic," Sheik Harith al-Dhari, of the Association Muslim Scholars, told a news conference.

Reuters also has this story including links to a Time Magazine article.

U.S. diplomats and intelligence officers are conducting secret talks with Iraq (news - web sites)'s Sunni insurgents on ways to end fighting there, Time magazine reported on Sunday, citing Pentagon (news - web sites) and other sources.

The magazine cited a secret meeting between two members of the U.S. military and an Iraqi negotiator, a middle-aged former member of Saddam Hussein (news - web sites)'s regime and the senior representative of what he called the nationalist insurgency.

A U.S. officer tried to get names of other insurgent leaders while the Iraqi complained the new Shi'ite-dominated government was being controlled by Iran, according to an account of the meeting provided by the Iraqi negotiator.

"We are ready to work with you," the Iraqi negotiator said, according to Time.

Iraqi insurgent leaders not aligned with al Qaeda ally Abu Mousab al-Zarqawi told the magazine several nationalist groups composed of what the Pentagon calls "former regime elements" have become open to negotiating.

The insurgents said their aim was to establish a political identity that can represent disenfranchised Sunnis.

As some guy once said...Developing.

Just two

Victor Davis Hanson has his usual excellent thoughts on the effects of American Policy throughout the Middle East.

In the war against the Islamic fascists and their supporters there have been a number of unheralded victories that have played some role in changing the landscape of the Middle East and eroding the power of the Islamists.

In reading this short essay one paragraph jumped out and I will post it here.

As a rule of thumb in matters of the Middle East, be very skeptical of anything that Europe (fearful of terrorists, eager for profits, tired of Jews, scared of their own growing Islamic minorities) and the Arab League (a synonym for the autocratic rule of Sunni Muslim grandees and secular despots) cook up together. If a EU president, a Saudi royal, and a Middle East specialist in the State Department or a professor in an endowed Middle Eastern Studies chair agree that the United States is "woefully naïve," "unnecessarily provocative" or "acting unilaterally," then assume that we are pretty much on the right side of history and promoting democratic reform. "Sobriety" and "working with Arab moderates" is diplo-speak for supporting or abetting an illiberal hierarchy.

A good article, read it all.

Another blog that is on my daily reading list is Steve Vincent's In The Red Zone. His quotes of the day feature is always instructive as is all of his posts.

Dhimmitude and Europe

From Spain to the Neatherlands, muslin extremism is running rampant and none of the countries know how to deal with it or refuse to deal with it. Some just ignore the problem, hoping it will just go away, some try to appease the movement in hopes of "getting along" and others are openly embracing it in the name of "diversity and understanding". This from the enlightened Europe that thinks the United States is wrong about everything from culture to domestic politics to foreign policy.Spains election was determined by the islamists and with the number in France rising, seemingly unabated, the make up a large voting block, not to mention the havoc they could cause such as they have in the Neatherlands. The Dutch have had several wakeup calls including, but not limited to, the Theo van Gogh killing and are dealing with it by continuing down the road to dhimmitude.Some are fighting back but...there is always a but...Steven Vincent In The Red Zone brings us this.

On February 1, the Washington Post's Keith R. Richburg described how Geert Wilders, a Dutch lawmaker and outspoken critic of Islam, is under constant threat by Muslim extremists.

Wilders now travels everywhere with six bodyguards. He cannot sleep in his own home, but is moved around between various undisclosed safe houses. He sees his wife twice a week, at a safe house. Richburg quotes Wilders,

We are in an undeclared war. These people are motivated by one thing: to kill everything that we stand for.

If Europeans are indeed involved in an "undeclared war" against Islamic extremism, they are not winning. All the vigilance and security measures in the world cannot protect them if the citizenry itself no longer accepts, obeys and defends the values inherited from their forefathers. Meanwhile, the bien pensants and Olympian progressives of the continent scoff--and profess to fear--boorish, pugnacious, irrational American patriotism and sense of destiny. But it is precisely our irrational will to believe in and accept--beyond all argument and "nuanced" deliberation--the greatness and universality of our values that will inoculate us from dhimmitude and creeping jihad, and prevent the Muslim Redoubt from erecting its barricades upon our shores.
Check out Steves article and read it all.

Butt Out Boss

The Dallas Morning News weighs in on the Weyco story about Big Brother.

Butt Out, Boss: Employer's anti-smoking ultimatum unfair

06:32 PM CST on Wednesday, February 9, 2005

Big Boss Man is watching you. If you are a smoker who works for Weyco, that is.

The Michigan company has instituted a policy making smoking, even off company property and even in an employee's own home, a firing offense. Company CEO Howard Weyers says he's sick and tired of rising health care costs cutting into his company's bottom line, and he refuses from now on to pay the medical bills for smokers. Hey, Marlboro Man, if you don't like it, get another job.

Well. Far be it from this editorial page, which enthusiastically supports most smoking bans, to extinguish the fire in Mr. Weyers' belly for improving the health of his employees. Rising medical costs really are enormously burdensome on businesses that subsidize health coverage for their employees. We sympathize with his frustration over having to pay for his workers' bad habits.

But this policy really goes too far. Smoking is a filthy habit, and a destructive one – but it is legal. It's disturbing to think that one's employer has the right to regulate one's behavior off the job site. Drug testing? That's fine, because no one has a right to use illegal substances. But nicotine is not against the law.

Mr. Weyers promises not to extend his policy to cover obesity, but why shouldn't he? The U.S. government predicts that obesity will soon overtake smoking as the leading cause of preventable death in this country. Once you've granted the principle that an employer can fire an employee for legal off-the-job activities that do not affect job performance, where do you draw the line? It should be noted that because blue-collar workers smoke and suffer from obesity in higher proportions than others, this issue has class overtones.

Whatever color your collar, Weyco's policy is a threat to the privacy rights of all Americans. True, nobody has a right to work at the company, but if its draconian anti-smoking policy catches on, it won't be long before other companies are adopting it, too. And if it spreads to obesity, one day soon, American workers may be faced with an absurd but all-too-real choice: Your Big Mac or your job.

Elections, Carter and Zawahiri

A new Zawahiri tape is released and Jihadwatch has some details as well as a link to an AFP story

Zawahiri, like all jihadists and jihad theorists such as Sayyid Qutb and Syed Abul Ala Maududi, equates freedom with Sharia. While it's jarring to Western sensibilities to equate a legal system that mandates discrimination against women and non-Muslims with freedom, it's perfectly understandable from Zawahiri's perspective: Sharia, he believes, is the law of Allah, and thus takes precedence over all other legal structures.

Here's a newsflash of earth shaking proportion...Jimmy Carter, after 10 days decides that the Iraqi election was a good thing. This is a hoot. Outside the Beltway has more. Ed Morrissey makes a good point and dissects Carter and his actions further and compares this reaction to his reaction to the Palestinians election. Meanwhile JustinB a guest blogger over at Bill Roggios Fourth Rail has some thought on the Saudi election.

Lynne Stewart, Jordon, Gannon and Whiney Dems

For one of the most detailed looks at the Lynne Stewart conviction and history, New Sisyphus has done a yeomans job as usual.

Today, Fox News used that term to describe "veteran civil rights lawyer" Lynne Stewart. A prominent left-wing lawyer, one of the early members of the hard-left National Lawyer's Guild, an early supporter and backer of one of America's worst domestic terrorist groups in its history, the Weather Underground, somehow she always was able to pass herself off as simply a person committed to civil rights. During the Cold War, conservatives had to work overtime to unmask supporters of Communism and other totalitarian ideologies since their supporters so often took cover in the Constitution they also sought to destroy. Today, that work continues.

Of course, Stewart was no more committed to civil rights than hard-left NGOs are committed to human rights. It's just a grand sounding cover for the work they do, since "violent anti-American" just doesn't sound so hot on a nice fund-raising letter. Plus, it gets you a lot of gullible supporters, usually of college age. (There is a reason Noam Chomsky's core audience is perpetually 24 years old.)

Betsy Newmark at Betsys Page point us to an article by John Podhoretz in the NYP
Read the whole thing and be sure to check out Powerline and their take on this icon of Marxist thought.

The Eason Jordon train keeps on rolling within the blogosphere and now the MSM is to the point it cannot continue to ignore it. When two Dem Senators like Frank and Dodd are upset, it is icing on the cake. Jordan Central is at Easongate here and here.
The whole site is dedicated to the Jordon affair.

Captain Ed points to the devolution into whiney three year old acting Democrats in his "He's touching me Mommy" post. He has a point and makes it well.

The apparent non story of Jeff Gannon/Jim Guckert is covered very well at both Powerline and by Bill at INDC Journal.

Crossing Jordan

Having been away from the keyboard for some time due to such various things as sloth and a gut wrenching stomach flu (too much information, huh?) I have been derelect in posting. I have been keeping up on the Eason Jordan story and what appears to be the next impending demise of a news media figure and a few more shovelfulls of dirt from the hole that the MSM seems to keep digging for themselves. The long knives are out in force in the blogosphere and the same old story is playing itself out. Coverup, back pedaling, obfuscation and denial is still not working and indeed seems to be making the matter worse for CNN and its news director. Sound familiar?

For those that want the inside scoop on this latest scandal, and Jordans past transgressions, check out the big guns in the blog world, Captainsquarters, Powerline, and the Fourth Rail among others. In fact Bill Roggio along with other bloggers has created a group blog to cover this subject and he has e-mailed me to say that there is a lot of information coming in. Michelle Malkin has been in touch with Barney Frank and he has given his first hand report on what was and was not said at Davos. All sites have multiple entries about this so I linked to the sites instead of individual posts. Scroll away.

So much other stuff, so little time.