Interesting article on Scalia's debate with Breyer on the use of international law in deciding Supreme Court cases. Scalia's sarcasm is entirely warranted. Kennedy and Breyer are very selective in their use of cases. Though they often refer to an international consensus they have never in fact cited Asian law. Given the sheer size of the Asian population it's hard to see how there can be an international consensus without them. Europe is not the world. And they obviously pay no attention to wide-spread international condemnation of abortion and homosexuality. Why is Muslim Sharia law excluded from consideration? Probably because they both find it repugnant. But then that just proves that they select international precedent which supports their already-held views.
The Claremont Institute: What Happened to "We the People"?
The ongoing debate about constitutional interpretation ought to be of keen interest to the Christian. No where else do we see with such clarity the effect of subjective morality and of postmodern hermeneutics on social policy. Unlike the cloistered theorizing of academics, Supreme Court decisions have real consequences on real people.
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The decision was based on the notion that "cruel and unusual" is determined by comparable standards.
Comparable in this case means western. Our law is descended from English law, not Asian. And certainly "Muslim Sharia" is not comparable to western civil and criminal law. Thank goodness. We don't stone women to death for adultery, either.
There's no "subjective morality" or "postmodern hermeneutics" here. It's a simple application of the standard "no cruel and unusual". That's the job the Justices had in front of them. 30 states and every other comparable nation prohibit the execution of juveniles. Even the states that do execute minors do it very rarely.
In other words: it's unusual.
If the Court didn't apply comparable contemporary standards we'd still be executing 7 year-olds.
Scalia just doesn't like the result.
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