International consensus rules us

Franky Schaeffer, son of Francis, once said that the four words he feared the most were "Today a federal court ..." Yesterday, the U.S. Supreme Court gave us good reason for that fear. The Court handed down Roper v. Simmons, finding that imposing the death penalty on anyone under 18 was cruel and unusual punishment. While I do not comment on the result, the decision is disturbing.

Even though the Court noted that the defendant had assured his friends that he would be able to "get away with" his planned murder-for-money because he was a minor (he was apparently mistaken), the Court concluded that the existing death penalty did not deter anyone. Yet this very defendant would apparently not have committed the murder if he had thought he could be executed for it. But the most troubling aspect of the case is its use of international law.

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The Court's majority looked to international law in overturning a sodomy law in Lawrence v. Texas, but that was a brief reference. In Roper, the Court lavishes page after page of attention on the views of courts in Canada and Europe. It attends to the views of the United Nations as well.

The problems with this trend in internationalization of American jurisprudence are numerous, but the most important has not yet been widely noted. One of the main purposes of having laws is that they give predictability to our lives. We know what laws we must submit to, and we can conform our conduct accordingly.

The Supreme Court has repeatedly struck down a law on the basis of its vagueness, where "men of common intelligence must necessarily guess at its meaning." Yet with the Court's reliance on foreign law, we have just such a situation. Men of common intelligence can barely even find out all the city ordinances, tax and environmental regulations, state and federal statutes, and infinite case law interpreting all of this. But now, even knowing that will not suffice, they must be aware of laws in Pakistan and Germany, Latvia and Israel. Court rulings and interpretations from such places might be brought to bear on them.

This opinion does something the Court condemned in a prior case, U.S. v. L. Cohen Gro. Co. There, the offending law "leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against." Roper v. Simmons does the same.

Not only can ordinary people – such as mayors, nurses, school superintendents, reporters, social workers, cops, and pastors – not possibly predict what standards will be applied to their conduct, but they will have to abide under the rules that come at them from across the ocean from persons they never elected and who do not represent their interests.

It seems that we had a war over this back in the 1700s. In the Declaration of Independence, we complained that the King "has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended legislation." Roper v. Simmons does the same thing – this in spite of the fact that the Supremacy Clause of the Constitution states that it is only U.S. laws and treaties made under the authority of the United States that are the supreme law of the land.

When the Court rifles the law libraries of Belgium and India for support for its positions, in order to strike down state laws made pursuant to constitutional grants of power, that strains the Supremacy Clause to the breaking point. And it strains the letter and spirit of the oath the justices take to uphold our Constitution.

Leah Farish is an attorney with the Alliance Defense Fund and teaches law at the university level.