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March 1, 2005

Talk of foreign practices in Roper

The Roper case was being closely watched as a litmus test for the Supreme Court's concern with foreign laws and practices, because most of the world's nations do not permit the execution of juvenile offenders. The final section of Justice Kennedy's opinion for the Roper Court includes an interesting discussion of these matters.  Here are a few excerpts:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court.s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."

The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.... It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices:

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.  Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

March 1, 2005 at 11:26 AM | Permalink


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Orin Kerr, Prof. Althouse, various Cornerites and others too numerous to link are glomming onto the appearance of foreign precedents in Mr. Justice Kennedy's majority opinion (Mr. Justice Scalia is, too!). My possibly jaded thought is that at least the... [Read More]

Tracked on Mar 1, 2005 1:05:04 PM


So I think that foreign practice really does matter: I think so, even more than the majority. Scalia can't understand why, if it does, this should be specific to the Eighth Amendment and not every area of law.

He can't understand why any kind of evolution should be allowed for the Eighth Amendment and not other things.

Apparently he has failed to notice the explicit reference to what is UNUSUAL in the text of said amendment. The amendment prohibits the infliction of an unusual punishment: one that is outside the norm. As norms change, so therefore do the bounds of the unusual, and so therefore do the constitutional bounds.

No other constitutional text contains such a broad reference, or an explicit appeal to what is normal, usual, or customary, which is an explicit appeal to a broader standard.

Posted by: Thomas Bushnell, BSG | Mar 2, 2005 12:46:45 AM

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