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< | Cruel and Usual Punishment: Transcendental Nonsense and the Functional Approach at the Same Time | >
> | The Use of Foreign Sources in the Supreme Court's Cruel and Unusual Punishment Jurisprudence | | | -- By WenweiLai - 25 Feb 2010 | |
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> | The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” In Trop v. Dulles (1958), the Supreme Court held that “the evolving standards of decency that mark the progress of a maturing society” shall be the standard to decide whether a punishment is so disproportionate as to be “cruel and unusual.” Starting from Atkins v. Virginia (2002), the Court has cited international sources to interpret “cruel and usual punishment” in three cases. The use of foreign sources drew sharp criticism from the dissenters in the Court, scholars, and even politicians. Congress passed a resolution to condemn the use of foreign sources. The critics, the most vocal among whom Justice Scalia, argued that “the Court’s discussion of foreign sources as dictum that was meaningless yet dangerous on the ground that it invited judicial imposition of foreign moods, fads, or fashions on Americans.” | | | | |
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< | I. The current cruel and unusual punishment jurisprudence of the Supreme Court: Roper | >
> | Citing international sources is a Court tradition | | | | |
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< | The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Is executing a juvenile under 18 cruel and unusual? The Supreme Court answered this question in the affirmative in Roper (2005), | >
> | However, there is a 200-year tradition of using foreign sources in Constitutional interpretation in the Court jurisprudence. As early as 1804, Chief Justice John Marshall established the Charming Betsy principle- courts should not adopt a construction that would violate international law unless there is no alternative construction. Murray v. Charming Betsy (1804). As to the Eighth Amendment, in Trop that “the civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime” contributed to the conclusion that denationalization of petitioner violated the Constitution. | | | | |
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< | Not a good citation
form. It does not uniquely identify a case. | >
> | The driving force behind the newborn trend of resistance: countermajoritarian difficulty, a fundamentally flawed theory | | | | |
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< | basing its decision on some transcendental nonsense. Interestingly, the decision is criticized most often not for its legal reasoning, but for its use of foreign sources to support its conclusion. | >
> | Therefore, the attack on the use of international sources is a rather newborn phenomenon. However, this trend must be examined in a broader context: the development of the countermajoritarian difficulty theory. After Professor Alexander Bickel published this theory in the 1960s, it soon became the most hotly debated problem in American Constitutional law. Since unelected judges lack the legitimacy that political branches enjoy, an argument can naturally be made that they should not transplant foreign ideas into American Constitutional law, the dominant player of which is not the judicial branch. | | | | |
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< | A. Transcendental nonsense adopted by the Court | >
> | Under this approach, judicial restraint is a required virtue, and judicial activism is not acceptable. However, this approach is based on a flawed assumption: the elected officials are more legitimate than the judges. They are not. Congress is so interest-group-dominated that is it highly doubtful they can represent the people very well. Moreover, the Court has the power to check and balance Congress by the Constitution’s institutional design. I would rather believe the living-Constitution doctrine, which was embodied in Trop: “Time works changes, brings into existence new conditions and purposes. Theretofore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.” Since the words of a constitutional provision like “cruel and unusual” is seldom clearly defined, the Court should look at external sources to help its decisionmaking. Anything that relates contemporary decisions to contemporary phenomena is a step in the right direction. | | | | |
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< | “The evolving standards of decency that mark the progress of a maturing society” has been the Court’s test in determining whether a punishment is so disproportionate as to be “cruel and unusual” since a 1958 case. | >
> | This doctrine makes even more sense when the external sources are trends commonly accepted by the global community. Federalist No. 63 argued that “in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.” In other words, when Congress is dominated by domestic interest groups, foreign sources can help the Court resist the biased decisions made by Congress. | | | | |
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< | Not a good form of
reference either. "Since 1958" would work if all that matters is the
year, but if "a case" is needed, as it is here, then "Trop
v. Dulles (1958)" takes but one additional word.
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> | Difficulty in distinguishing usable sources: the Court needs to address it in its use of foreign sources | | | | |
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< | Such a definition falls into what Cohen called a vicious cycle. Court decisions are always part of the evolution of social standards; sometimes they lead the evolution. The fact that the Court ruled executing a juvenile unconstitutional made the execution a violation of “the evolving standards.” (Although I don’t have any empirical evidence on this specific question, my reasoning here is based on other countries’ experience in the abolition of death penalty. Opposition to the death penalty appears to grow the longer the country has been without the punishment.) So it is putting the cart before the horse for the Court to regard “the evolving standards” as a reason for declaring the execution unconstitutional. | >
> | For the conservatives, the use of foreign sources raises an even more serious concern than an ordinary countermajoritarian difficulty problem does, because the issue of sovereignty is also involved. They treat the use of foreign sources as a foreign intrusion upon the popular sovereignty of the United States. This attitude is probably unique to Americans, and it can be seen from this country’s resistance to international organizations like the International Criminal Court. However, such criticism is justifiable only when the foreign sources are treated as binding authorities. The Court has never done this. In Atkins, the Court stated that world opinions are “by no means dispositive.” The Court also explained in Roper v. Simmons (2005) that global views confirmed but did not control its decision that capital punishment of juvenile offenders is forbidden by the Constitution. Therefore, the seemingly self-evident argument that foreign source means a foreign intrusion is unfounded. | | | | |
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< | This is non-sequitur.
The Court can perceive that banishment, or executing children, are no
longer actions tolerable under the society's prevailing standards of
decency without having previously ruled that the actions are
unconstitutional, just as the Convention Parliament could perceive
that James II's use of whipping and aggression against habeas corpus
went too far. | >
> | Another argument against the use of foreign sources can be paraphrased in the following words from Scalia in Roper: “…all the Court has done today… is to look over the heads of the crowd and pick out its friends.” Compared with the prior criticism, this one does not doubt the legitimacy of citing foreign sources. Rather, it focuses on the difficulty of selection among various foreign sources. Even though foreign sources are just used as persuasive authority, they still affect the judgment of the Court. So it is imperative that the Court accept only the sources that are really persuasive. Up to now, there has not been a clear framework as to in terms of source selection, but the Court is aware of this problem. For example, in Lawrence v. Texas (2003), another decision citing foreign sources (esp. a European Court of Human Rights decision) to overrule a prior decision regarding sodomy, the Court emphasized that it was borrowing from the common Western civilization upon which the Constitution was founded. | | | | |
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< | In Stanford (1989),
Also
inadequate.
the case overruled by Roper, another transcendental nonsense was put forward to explain the previous one: “national consensus,” which meant the execution could be abolished only when there was a national consensus that it should no longer exist. If there had been any national consensus, how could this have been hotly debated by the opponents and proponents? This requirement is a convenient tool for the conservatives to uphold the constitutionality of a punishment. However, when a decision tries to keep the national consensus requirement and abolish an existing punishment at the same time, problems will follow.
B. The Court is, in fact, a realistic Court under the cover of transcendental nonsense
In Roper, the majority claimed there had been a national consensus that executing a juvenile was cruel and unusual. Therefore, in citing the international trend toward the same direction, the court was only looking for “confirmation for our own conclusions.” However, there was no such consensus at all: only thirty states had abolished such execution before the Roper decision was made. A sixty percent majority was hardly a “consensus.” It was abolished by the Court not because of a national consensus, but because the instability and the emotional imbalance of young people might often be a factor in the crime, as scientific and sociological research showed. And this opinion was supported by the overwhelming weight of international sources.
No. It was abolished
because a majority of Justices abhorred the practice. Your realism
is unrealistic.
II. Foreign sources as a functional approach in Constitution interpretation
This is really a
fundamentally different topic. Combining the two makes more trouble
for you than it sheds light.
A. The use of foreign sources should be justified
Law is what it does. Therefore, courts are justified in considering what the laws they are making will do. In Cohen’s words, “Only by… projecting beyond the decision the lines of its force upon the future, do we come to an understanding of the meaning of the decision itself.” Scientific and sociological research provides courts with a good source in predicting the effect of the newly-made law. However, the research is only prediction; for empirical evidence, courts must look at other countries where a similar scheme has been in practice for a while. The experiences of other countries can help courts better understand the possible outcome that their judgments will bring about. In this sense, the use of foreign sources is highly justified.
That's a specious but
meretricious argument. "Similar" experience in other places could
hardly be used to displace legislation, after all. So the question
is not about how to make good policy, but about the nature and extent
of judicial power. The arguments made against citing foreign sources
in US Constitutional cases are also meretricious, and you can
confront them successfully if you try, perhaps by learning some
history of the controversy over the use of English cases in the early
national US courts. But confronting the arguments means not trying
to hit the ball where they ain't.
B. So, are the dissenters out of their minds?
All my reasoning above is based on the assumption that the functional approach, a product of the so-called legal realism, is the correct one. However, this assumption does not hold true to everyone. As Justice Scalia said in his Roper dissent, “this is no way to run a legal system.” According to the legal philosophy which he purports to follow, such a law does not change and these particular words ("cruel and unusual") have a fixed meaning. Therefore, the functional approach is no justification for the use of foreign sources.
Too many steps skipped.
Two questions arise, after all, which would be answered separately if
a foreign case (perhaps an English case from 1695, for example?) shed
light on the fixed meaning of "cruel and unusual punishment" in the
Bill of Rights of 1689.
C. Transcendental nonsense from a strategic perspective
If there had been five Scalias on the bench, executing juveniles would have still been constitutional.
But that's not the
result of a dispute about the meaning of the Eighth Amendment.
That's because Nino doesn't regard executing children as an abhorrent
practice. (The Catholic Church has always found ways to remain
unconcerned about the practice.) That was clear from his first Term
on the Court.
There were not, so the liberals got what they wanted. However, they got it at a cost: the Roper decision was a mixture of the functional approach and some transcendental nonsense like “the evolving standards of decency that mark the progress of a maturing society.” The two ideas are incompatible,
Certainly
not.
and the combination causes confusion and ambiguity, just as Blackstone did in throwing Hobbs and Coke together.
I think you mean Hobbes.
This aside causes you way more trouble than it's worth, because you
haven't got a prayer of reducing Blackstone to the sum of Hobbes and
Coke, and all you do is make apparent that you haven't any
significant first-hand experience of either Blackstone or
Coke.
But we have to be practical here: the majority needed five votes. If they had given up the transcendental nonsense, they would not have got five votes. To get the important fifth vote, the price that had to be paid was to let him (the Roper majority was written by Justice Kennedy) include the transcendental nonsense in the opinion.
This assumes that the
other judges in the majority don't believe that the Eighth
Amendment's words require a contemporary assessment of what
constitutes "cruelty" or "unusualness." On the basis of my limited
experience of those human beings I think you're wrong in that
assumption as to at least three. So what's your evidence for this
proposition?
From a purely scholastic point of view, this is a bad approach, and it makes the decision seem fragile in the face of dissenters’ criticism: if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. On the other hand, this is a smart approach in practice. The law is what it does, not how it does. As a Chinese leader said, “I don’t care if it’s a white cat or a black cat; as long as it can catch mice it’s a good cat.”
Quoting Deng Xiaoping
casually in a discussion of capital punishment has a rather sinister
wit about it. I would ask whether it is a good
idea.
As I said above, I think the attempt to discuss two quite distinct
issues in the space available acted to the detriment of the essay as
to both. You need to choose which, I think, you want to write about.
So far as the Eighth Amendment jurisprudence is concerned, you need
to be careful to explain your ideas not in Cohen's rhetoric, but in
your own. His leads you astray, because you wind up treating any
"living constitution" position as "transcendental nonsense," which is
a contentious conclusion you do not establish. For me, as a
historian, "original intention" is transcendental nonsense, and
anything that relates contemporary constitutional decisions to
contemporary political phenomena, including even the presence or
absence of current political consensus, is—if not entire
realism—a step in the correct direction. I may be wrong as any
reader can be wrong, but you must show me why I am wrong, not try
to assert your way past me.
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> | The use of foreign sources can be justified if the Court gives a proper explanation that the foreign legal systems it looks to share with the US a common respect for human rights. Therefore, the decisions citing international human rights conventions, like Lawrence or Roper (which cited the Convention on the Rights of the Child), would be the most highly justified ones. On the other hand, when a foreign country shares less in common with the US with respect to the problem at issue, like citing decisions from a parliamentarian system country for a separation of powers question, it may be harder for the Court to justify its use of foreign sources. | | | \ No newline at end of file |
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