World Courts Trump U.S. Constitution!

The following is an exerpt from: disc.server.com...

The trend ignited in 2002 when the Supreme Court ruled that executing the mentally retarded violated the U.S. Constitution's prohibition against cruel and unusual punishment found in the Eighth Amendment. In doing so, Justice John Paul Stevens wrote that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded defenders is overwhelmingly disapproved." Justice Stevens went on to point out that even Communist China refuses to execute the mentally retarded.

The justices followed that up in 2003 when Justice Anthony Kennedy, in a decision that struck down Texas' sodomy law as being unconstitutional, cited a 1981 ruling by the European Court of Human Rights that expanded gay rights.

Justice Ruth Bader Ginsberg, in her opinion last year that permitted affirmative action programs in U.S. law schools, cited the International Convention on the Elimination of All Forms of Racial Discrimination.

In a speech last October, Justice Sandra Day O'Connor said that she believed the Supreme Court "will rely increasingly on international and foreign courts in examining domestic issues."

"Several of the justices have clearly indicated that this is a trend that will continue," says Southern Methodist University law dean John Attanasio, who points out that law schools across the country are starting to adjust their constitutional law curricula to address the swing.

"The U.S. Supreme Court has been a major force in promoting the rule of law throughout the world," he says. "But if other countries' courts are citing the U.S. courts, but there's no reciprocity, then it is difficult for the U.S. to remain a leader in the development of international law."

Dean Attanasio and other legal scholars say the trend can largely be attributed to the recent international travels by the U.S. justices to interact with their foreign counterparts.

"The set of justices who strongly support the movement � Justices O'Connor, Kennedy, Ginsberg and Stephen Breyer � are the ones who regularly travel abroad to meet with judges and legal authorities," says Mr. Baker. "The American justices have come to view the foreign judges as their peer group.

"I guarantee you that judges abroad give the American justices a very hard time about the death penalty in America," he says. "That has an impact."

Legal experts say the American justices are referring to the international court decisions the same way they do law reviews � not as controlling authority but as advice or guidance on how others think laws should be interpreted.

"The danger would be if the U.S. Supreme Court considered the decisions by international courts to be precedents binding on our courts," says Mr. Attanasio. "Then that would threaten or compromise our sovereignty as a constitutional democracy. All we're saying is that these foreign court decisions should be looked at, considered and viewed as possibly persuasive."

But even that is improper, according to one of the high court's own, Justice Antonin Scalia.

"The court's discussion of these foreign views ... is meaningless dicta, dangerous dicta, since this court should not impose foreign moods, fads or fashions on Americans," Justice Scalia wrote in dissent in the Texas sodomy case.

U.S. Rep. Tom Feeney (R-Fla.) is so outraged by the trend that he introduced a resolution that advises the Supreme Court that it is "improper for them to substitute foreign law for American law or the American Constitution."

Okay, maybe I pasted a bit more than was necessary, but surely I made my point! Do we need to start pulling out of a few treaties to get the message across to the Supreme Court? Foreign Laws should NOT trump U.S. Law, and ESPECIALLY NOT the Constitution!

IMO this is is a perfect example of conservative spin that seeks only to work the masses into righteous indignation.

This is evident from your own post:

Originally posted by Toelint
Legal experts say the American justices are referring to the international court decisions the same way they do law reviews � not as controlling authority but as advice or guidance on how others think laws should be interpreted.

This is well within their mandate. Had a decision been based entirely or solely on an international law or treaty, then I would agree that the Court was out of line. But in each of these cases, the decision was ultimately based on Constitutional protections. The references to international law are simply to show additional support for the decision and not a precedent for it.

It's also interesting that the article failed to mention any of the binding authorities that have come from related US cases.

I found an article written for the Harvard Law Review in 1890 by Brandeis and Warren involving invasion of privacy issues. In the opinon piece both reference several English court cases involving similar invasions of privacy. I find this significant in that issues of the constitutionality of law are normally decided through precedent. But what is a Court to do if there is no US precedent, as noted in the Brandeis/Warren piece? Rather than legislate through judicial activism, both fell back on precedents set by English Courts involving similar invasions that were supported by the US constitution.

As long as SCOTUS is only using International law as a guide or for advice, there is no conflict or threat of judicial activism.

Here's the link to the 1890 Harvard Law Review piece:Harvard

When SCOTUS starts overturning it's OWN decisions, citing European Law to do so...THAT gives it precidence. THAT Makes it binding.

"The justices followed that up in 2003 when Justice Anthony Kennedy, in a decision that struck down Texas' sodomy law as being unconstitutional, cited a 1981 ruling by the European Court of Human Rights that expanded gay rights."

If this isn't Trumping the Supreme Court's 1986 decision against Gay Rights, pray tell, what is??

We can keep this one short. US law was modern and better developed than any other laws but this was decades ago.
Nowadays US law sucks in very much aspects and that the Supreme Court relies on international decissions can be seen as good change after all.

You didn't paste anything, not because it is that long but there are things said which should make you reconsider your opinion.

And the trend appears to be trickling down to the lower courts. Just last week, the Oklahoma Court of Criminal Appeals reversed the death sentence of a Mexican citizen, citing the International Court of Justice in The Hague, which ruled in April that 51 Mexicans on death row in the U.S. had been denied their rights under the Vienna Convention to contact Mexican officials for assistance when they were arrested.

Following US justice those mexicans should die without having had any assistance in court by a mexican official. Something which has been guaranteed under the Vienna Convention in 1963.
International law ain't against US interests. It is against US arbitrariness.

Care to see and accept the difference.

When the SCOTUS refered to international law and then made a ruling it did indeed set a presidence based on international law. So when the next case comes up under similar circumstances the decision will be based on international law and not US law. But then again this presidence thing is concerning to me. It allows the judicial branch to legislate from the bench. This is a provision NOT guaranteed to them by the Constitution. That was granted to the legislative branch. Time to dump that court system and start over from scratch.

Originally posted by Toelint
When SCOTUS starts overturning it's OWN decisions, citing European Law to do so...THAT gives it precidence. THAT Makes it binding.

"The justices followed that up in 2003 when Justice Anthony Kennedy, in a decision that struck down Texas' sodomy law as being unconstitutional, cited a 1981 ruling by the European Court of Human Rights that expanded gay rights."

If this isn't Trumping the Supreme Court's 1986 decision against Gay Rights, pray tell, what is??

First, of all quit being snotty or I won't play with you anymore.

Secondly, Kennedy did not overturn the law or the Bowers decision using the Euro Court of Human rights. The majority's decision overturned the law and the original Bowers decision as a violation of the 14th amendment's protection. The reference to Eurpean law was just that a reference and not to establish a superceding precedent.

Side Note: If you read the entire decision Kennedy, writing for the majority, noted that sodomy, buggery, etc. laws were all derived from English law and had little to do with homosexual acts but were more about non-procreative acts. In fact, he notes that the word homsexual was a late 19th century invention. He goes on to say that only a few states to maintain these laws and they are rarely if ever enforced.

Now directly to your point, Justice Kennedy cites the European courts not to establish precedent, but to make a point. The Justices in the Bowers case noted that the US relies on common values we share with a wider civilization. Kennedy merely noted that if this was true, then those values have changed as can be noted in European recent decisions. In other words what's good for the goose is good for the gander.

In the end what it came down to for SCOTUS was 3 things: Does TX law violate the 14th amendment? Is adult consensual intimacy in the home protected by the 14th amendment? Was the Bowers decision wrong? The majority found "yes" in all three criteria.

International law is supposed to trump all laws, yes even your "sacred" U.S. constitution. How can you expect other nations to adhere to international law when you as a nation never do? Quite simply get off your high horse and get over the fact that every once in a while you might actually have to abide by the agreements you sign as a nation. Your stating that the U.S. constitution should overrule international law is an excellent argument for the various religious codes of law that your nation has been calling barbaric since their "war on terrorism". Take a deep look in the mirror and laugh America, for you are your own worst enemy and hypocritical to a tee.


tssssss.....
can you feel the burning?

Originally posted by Amur_Tiger
International law is supposed to trump all laws, yes even your "sacred" U.S. constitution.

why should we let others make our laws? international laws are not above any one nations laws, our constitution is our supreme law, it cannot be discarded because other nations think their way is better, if our country is a hipocrit then so what? others need to worry about themselves and get over it, every country does the same thing and every one of them are hipocrits.

Perhaps it's because we all want to have roughly the same standard of legality for our actions wherever we go in the world?
One of the excuses for kicking the Taleban out was their public executions, but if that was their law, then why should the US damn well go in there to change it?
You're just all flustered about this because it's dawning on you that America isnt the only country out there (other than Britian, France, Iraq, Afghanistan) and that no one gives a damn about your constitution. Only you.

Originally posted by browha
Perhaps it's because we all want to have roughly the same standard of legality for our actions wherever we go in the world?
One of the excuses for kicking the Taleban out was their public executions, but if that was their law, then why should the US damn well go in there to change it?
You're just all flustered about this because it's dawning on you that America isnt the only country out there (other than Britian, France, Iraq, Afghanistan) and that no one gives a damn about your constitution. Only you.

so? we should care about others laws and follow only theirs then? see its not just america being hipocritical...,

It's spelt hypocritical =)
You're not only following theirs.. You still do have the rest of your legal system.
They influenced one ancient law that needed changing.

i think every country should have their own rules and no single entity should tell them what to do, not america, china or the UN and a nation should only be forced to abide by international law if they violate other nations or while at war and no other reason at all.

Well, then, hypocrispy again!
I suppose you dont support the war on terrorism, do you?
Let us not forget that when the Taleban fell, Bush praised the removal of such an oppressive regime... Same with Saddam... Guess what they were doing? Moving in to get rid of their legal system and replace it with their own.

Originally posted by browha
It's spelt hypocritical =)
You're not only following theirs.. You still do have the rest of your legal system.
They influenced one ancient law that needed changing.

eh, im tired, but im only saying noone should tell others what to do with their laws, not even the UN, i never supported anyone telling other nations what their laws can be or not, such a thing can be dangerous imho.

Originally posted by browha
Well, then, hypocrispy again!
I suppose you dont support the war on terrorism, do you?
Let us not forget that when the Taleban fell, Bush praised the removal of such an oppressive regime... Same with Saddam... Guess what they were doing? Moving in to get rid of their legal system and replace it with their own.

my support or disproval of the wars is not the point, like i said everyone is a hypocrit, if its foreign interest vs my nations interest, im not gonna listen to some judge or whatever 6,000 miles away in another country somewhere in europe, hypocrit or not i just wont do that.

Okay, first of all, I'm not a law student. Forgive my crazness.

Snotty? Never...at least NOT to someone with that shade of Red Hair. (Assuming that's you in the Avatar...I love Redheads)

Lastly, did you actually checkout leanleft.com? Please do!

You see namehere the entire point behind international law is to be the highest level of law in the world, to supercede any particular nations laws. This was in no small part due to the rising brutality of goverments at war, especially the second world war. The entire world thinks that genocide, torture, unlawful imprisonment..... should not happen so it's put into international law and supposedly we are supposed to be willing to take up arms to enforce this. In the real world it depends on the power of the nation, the U.S. gets away with all sorts of things because nobody wants WW III, same with China and Russia, also economic pressure won't be exerted upon the U.S. or China because of their economic potence. International law can basically be boiled down to the international community finding a replacement for the failing ways of honor, a universal law above any other law for that which is right.

Hey I think it sounds good to me, I mean why shouldn't a country take the best laws from other countries to make theirs better?

I didn't see anything there too alarming, so the Americans adopted a European law or two, so what the EU adopted its share of American laws too.

The United States itself based her government on the Iriquois Conferderation which was, at the time, a seperate country. I don't see what the problem with making your nation a better place is, please someone explain to me why America shouldn't take on good laws from other countries and the UN? It only seems logical that if you wanted what was best for you nation you would see what other nations were doing, adopt what was working and good and improve upon it.

May Peace Travel With You
~Astral

Um, this sounds like right wing religious paranoia.

1. The sodomy laws were outdated, no one payed them any mind, until a couple of overzealous cops arested two queers for doing something that shouldnt have been any of the cops biz. The courts were justified in striking down those laws. I dont care if you like or agree with homosexuality (I sure as hell dont) the constitution guarantees thier right to do whatever they want in thier own bedrooms, and it aint none of your biz. Thier life, thier right, so long as they are consenting adults.
2. Executing the mentally retarded is unconstitutional. Just like executing the insane. Retarded people and crazy people are not in full capacity to make descisions on thier own, and are not capable of totally understanding concequence and such. Like Hinkley. He tried to kill Regan, yet we didnt execute him. Why? Cuz hes crazy. He didnt do it in a premeditated caculated act to kill the prez like Lee Harvey Oswald, he did it because he was beyond delusional and thought that killing the prez would cement the relationship he was convinced he had with Jodie Foster. Executing anyone who is crazy or retarded is against the cionstitution. The death penalty should only apply to sociopathic killers in full knowldge of what they do who kill in cold blood for pleasure.

So, I find it hard to see how either of these descisions trump the US constitution. If anything, they defend and strengthen it.

Now, if the US Supreme courts starts bending to the pressure to totally ban the death penalty, or strikes down free speech laws, gun rights, ect, then we have a problem of foreigners trying to but into our biz. But the above descions are very American. So what if they examined international law to do them? hell, they didnt even need to do that. nThere are enough precedents and laws within the US that showed that outlawing sex acts and killing crazy and retarded people is unconstitutional.

OIf they start killing the constitution, then Ill get pissed off and see red. But until then.....

We should NEVER let any other court over rule our Constitution! Where will that get us? the rules of this country have to be ahead of the laws of anyone else when it comes to the USA and its citizens!