A lot has been said decrying the recent Supreme Court decision banning the execution of criminals for crimes committed while they were minors. It’s been batted around by a lot of people, but I’m going to take one angle that I haven’t seen discussed anywhere.
One key element of the Court’s ruling was its citation of laws of other nations in support of its ruling. There is a lot of outrage over this, but I’m going to take a different tack.
I have no problem with looking at the laws of other nations to see where we might improve our own legal system. There’s nothing magical about America that says only we can come up with good ideas. In fact, our own history shows just the opposite — when we see a good idea somewhere else, we have no qualms about taking it and using it for ourselves, customarily after putting our own improvements on that idea.
For example, several years ago I heard about a Scottish legal practice that might merit some study. Juries in Scotland have an additional choice between guilty, not guilty, and deadlocked, called “Not Proven.” That’s the jury’s way of declaring a mistrial of their own. They are saying that they believe the defendant is guilty, but the prosecutor didn’t do a good enough job to merit a conviction. The “Not Proven” verdict lets them encourage a re-trial of the suspect, without violating double jeopardy. I think that might be something worth looking into.
That being said, I will stand firmly behind those who are greatly troubled by the notion that laws outside the United States (and, by definition, outside the United States Constitution) can hold sway over legal matters within the United States. The Constitution is the cornerstone of our legal system, and the Bill of Rights the guardian of our personal liberties.
When we start applying laws and judgments that were reached outside the Constitution to American cases, we’re tossing our own sovereignty and the supremacy of the Constitution into the court of worldwide public opinion — and that is something no one has the right to do.
Not even Supreme Court justices.