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Travesty time, again: in its death-penalty decision, the Supreme Court hits a new low
National Review, March 28, 2005 by Robert H. Bork
Article 37 of the United Nations Convention on the Rights of the Child, we are reminded, expressly prohibits capital punishment for those under 18. The United States--almost uniquely among countries--did not ratify it. Indeed, this country has never accepted any international covenant containing the prohibition in Article 37. "In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty." To accept such covenants would, of course, be attempting to alter our Constitution by treaty. Perhaps that is why the Court hedged: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." This "underscores the centrality of those same rights within our own heritage of freedom." That comes pretty close to accepting foreign control of the American Constitution.
What is really alarming about Roper and other cases citing foreign law (six justices now engage in that practice) is that the Court, in tacit coordination with foreign courts, is moving toward a global bill of rights. Neither our courts nor the foreign courts are bound by actual constitutions. Prof. Lino Graglia was quite right when he said that "the first and most important thing to know about American constitutional law is that it has virtually nothing to do with the Constitution." That is certainly the case with the Bill of Rights. From abortion to homosexual sodomy, from religion to political speech and pornography, from capital punishment to discrimination on the basis of race and sex, the Court is steadily remaking American political, social, and cultural life. As Justice Antonin Scalia once said in dissent, "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."
The courts of the United Kingdom, Canada, Israel, and almost all Western countries are doing the same thing, replacing the meaning of their charters with their own preferences. Nor are these judicial alterations random. The culture war evident in the United States is being waged internationally, both within individual nations and in international institutions and tribunals. It is a war for dominance between two moral visions of the future. One is the liberal-elite preference for radical personal autonomy and the other is the general public's desire for some greater degree of community and social authority. Elite views are fairly uniform across national boundaries, and since American and foreign judges belong to elites and respond to elite views, judge-made constitutions tend to converge. It hardly matters what particular constitutions say or were understood to mean by those who adopted them.
Judges are not, of course, the only forces for a new elite global morality. Governments and non-governmental organizations are actively promoting treaties, conventions, and new institutions (the International Criminal Court, for example) that embody their view that sovereignty and nation-states are outmoded and that we must move toward regional or even global governance. American self-government and sovereignty would be submerged in a web of international regulations. The Supreme Court, in decisions like Roper, adds constitutional law to the web. That is the one strand, given our current acceptance of judicial supremacy, that cannot be rejected democratically. What is clear is that foreign elites understand the importance of having the Supreme Court on their side, which is precisely why their human-rights organizations have begun filing amicus briefs urging our Supreme Court to adopt the foreign, elite view of the American Constitution.
