US and the rest of the world - Opinion article

[dwinterfield]

From Today's Boston Globe

I agree with Zimmerman. I think the US is painting itself into a corner. That's okay until you need help getting out of the corner. It seems we're becoming isolationists and expansionists at the same time.

JONATHAN ZIMMERMAN
The White House and world opinion
By Jonathan Zimmerman | March 3, 2005

THIS WEEK the Supreme Court rejected the death penalty for juvenile offenders. Even more, it repudiated a central principle of George W. Bush's presidency. Call it the Dubya doctrine.

Under the Dubya doctrine, world opinion simply doesn't matter. The United States isn't just the strongest country in the world; it's the best. So we don't need to consult other nations when we make decisions.

But the Supreme Court decided otherwise. In his majority opinion, Justice Anthony Kennedy pointedly acknowledged ''the overwhelming weight of international opinion against the juvenile death penalty." Since 1990, Kennedy wrote, only seven countries have executed juveniles: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Congo, and China. All have since disavowed the practice.

Kennedy's opinion sparked a stinging dissent from Justice Antonin Scalia, who insisted that ''foreign approval has no place in the legal opinion of this court." During oral arguments last fall, death penalty opponents cited Thomas Jefferson's dictum in the Declaration of Independence that America must show a ''decent respect to the opinions of mankind." Scalia sneered. ''What did John Adams think of the French?" he quipped, as laughter echoed through the normally hushed chambers of the court.

To Scalia the joke was on anyone who cared about world opinion. This White House doesn't.

Start with the war on Iraq. During the presidential campaign, challenger John F. Kerry charged that the United States failed the ''global test" of persuading other countries that the war was just. President Bush's response was clear and steadfast: It doesn't matter. The United States will pursue its own goals and interests in Iraq regardless of world opinion. You can't fail a global test if you don't even take it.

On nearly every other international issue, the White House assumed a dismissive attitude. The Kyoto treaty on the environment? It will hurt American business. The International Criminal Court? Not enough safeguards for our soldiers, especially in the wake of the Abu Ghraib prison scandal.

And capital punishment? Please. Why should we care if the likes of Mikhail Gorbachev and the pope have condemned juvenile executions here? Or that the only other countries that have practiced it are places like Iran and China? We make the rules of the game as they suit us.

But the founders of our own country didn't view the world in such a blithe manner. Men like Jefferson and Benjamin Franklin were inveterate internationalists, paying close attention to our young nation's standing and reputation around the world.

Both men served as diplomats in France. And John Adams -- no friend of the French -- thought America's leaders should be ''well versed" in the ''public law of Europe" and in the histories of England, France, and Holland. All of these people were zealous patriots, as befit the fathers of a new nation. To them, however, preserving the nation required a careful cultivation of global opinion -- not a brazen neglect of it.

Even in the 20th century, when the United States matured into a world power, its leaders tried to further the national interest by engaging other countries in dialogue and negotiation. To Woodrow Wilson, the foremost architect of modern American foreign policy, the world would never be ''safe for democracy" -- or for American interests -- without an international forum for airing and resolving disputes.

Wilson's vision would suffer a huge blow after America rejected membership in the League of Nations. But the vision revived after World War II, spawning the United Nations. It continued into the administrations of cold warriors Richard Nixon and Ronald Reagan, whose efforts at detente with the Soviet Union lay squarely in the Wilsonian tradition. When he became president, in fact, Nixon moved Wilson's old desk into the Oval Office so he could work at the same place as his hero.

At first glance, President Bush's tributes to freedom and democracy resemble Wilson's paeans to self-determination for nations around the globe. Under the Dubya doctrine, however, Bush believes that the United States can accomplish this feat on its own. He pursues Wilsonian ends via decidedly un-Wilsonian means.

Even more, he turns his back on the Founding Fathers themselves. Last time I checked, conservatives were supposed to preserve America's original principles and purposes. But the Dubya doctrine flouts them. A ''decent respect for the opinions of mankind"? That's, like, so 1776.

Jonathan Zimmerman, who teaches history and education at New York University, is author of ''Whose America? Culture Wars in the Public Schools."

[missy]

I won't go into the thoughts of the White House administration and world opinion, but I will talk about the Supreme Court and such.....

The Supreme Court for, oh, the past 15 - 20 years or so has been moving away from what they were appointed to do by the Constitution. Again - I won't go into the actual ruling that was handed down. But to base an opinion of the Supreme Court - NOT on whether something is Constitutional to the US, but on public "feeling" in the US and especially of the rest of the world, is overstepping the boundries and purpose of the SC by a HUGE margin. This is plain wrong, and setting a very dangerous precident.
Again - I'm not talking about the actual ruling. I'm talking about the REASONS given in the ruling for why the justices voted the way they did. Basing Constitutional law on public or world opinion is NOT the purpose of the Supreme Court. They exist solely to decide if a law or statute is Constitutional or not.
They are also hearing a lot of cases that should never have been heard - but should have stayed at the state level. That, too, is scary.

Missy

[emmline]

Agreed. It scares the heck outa me. I can't wait for another election so we can try again.

[ChrisA]

I can't find the text of the ruling just now (it's not up on the supreme court's own site yet),
so I don't know the details on -today's- case, but in general, the constitutional basis for these
cases is the question of what constitutes 'cruel and unusual punishment'. I'm sure that the ruling
was not, despite how the papers may phrase it for today's headlines, anything like 'it should be
illegal because international opinion is against it', but more like, 'it meets the threshold of cruel
and unusual punishment because the majority of the civilized world finds it abhorrent'.

The dissenting opinions would be based on the argument that only our own nation's
opinions of what constitutes 'cruel and unusual' are relevant.

In other words, the dispute is about whether to base an interpretation of the constitution
on a narrower or broader set of public opinions, and there are good reasons to believe
either way.

[dubhlinn]

What goes around , comes around.....


Slan,
D.

[jim stone]

I can't find the text of the ruling just now (it's not up on the supreme court's own site yet),
so I don't know the details on -today's- case, but in general, the constitutional basis for these
cases is the question of what constitutes 'cruel and unusual punishment'. I'm sure that the ruling
was not, despite how the papers may phrase it for today's headlines, anything like 'it should be
illegal because international opinion is against it', but more like, 'it meets the threshold of cruel
and unusual punishment because the majority of the civilized world finds it abhorrent'.

The dissenting opinions would be based on the argument that only our own nation's
opinions of what constitutes 'cruel and unusual' are relevant.

In other words, the dispute is about whether to base an interpretation of the constitution
on a narrower or broader set of public opinions, and there are good reasons to believe
either way.

I haven't read the opinion either. However jurisprudence concerning
'cruel and unusual punishment' has been indexed partly to
'evolving standards of public decency.' The standards
are those prevailing in America. So methods of
execution, like hanging, which
weren't cruel and unusual 60 years ago, because
the public didn't perceive them as indecent,
arguably are cruel and unusual now, as too many Americans
find them abhorrent. (If every other country on earth
endorsed hanging, suppose, hanging would still be
'cruel and unusual' because Americans abhor it.)
So, Missy, here is a place where
public opinion is relevant to the constitutionality
of a kind of punishment.

Scalia's dissent, as I understand it at second hand.
was based on denying that public standards of
decency have evolved to the point where
executions of murderers who committed murder as juveniles
are abhorrent. As I understand it, his principal
reason for this is that such executions are
legal in 17 states, too many to conclude that
there is sufficiently widespread horror of the practice.
The justices are substituting their own horror
for the public's, Scalia believes, thereby depriving
the people of a choice which, as things now
stand, should be theirs by the Constitution.

The effort to support the 'evolving standard
of decency' argument by appealing to opinions
in OTHER countries shows up the weakness
of the Court's argument, which cannot
be supported sufficiently by an appeal to
what Americans think.

Personally I'm opposed to the execution of murderers
who committed murder as juveniles (though the
Missouri case of the 17 year old who kidnapped a
woman, hogtied her, and threw her off a bridge,
first telling his friends that he couldn't be
executed for his plan because he was too young,
gives one pause); and I'm relieved by the
Court's decision. However Scalia's argument
that the Court has taken a decision out of the
hands of the people, without sufficient legal
ground to do so, seems to me to have
some force.

[missy]

I, too, haven't read the decision, just going on what has been published in papers, etc. So, perhaps it is as you stated, Chris.

And I understand what you are saying about "evolving", Jim, but again, basing a SC ruling on "public opinion" is just a huge door I don't want to open.

Again - I'm also looking at it from a "state's rights" vs. a "federal rights" standpoint.

Just another reason I am NOT a lawyer!!

Missy

[Wormdiet]

I, too, haven't read the decision, just going on what has been published in papers, etc. So, perhaps it is as you stated, Chris.

And I understand what you are saying about "evolving", Jim, but again, basing a SC ruling on "public opinion" is just a huge door I don't want to open.

Again - I'm also looking at it from a "state's rights" vs. a "federal rights" standpoint.

Just another reason I am NOT a lawyer!!

Missy

[rant]
PEOPLE have rights. Governments don't
[/rant]

[GaryKelly]

[rant]
PEOPLE have rights. Governments don't
[/rant]

People only have rights for as long as Governments allow them to. And Governments only exist for as long as the people allow them to.

[jim stone]

Basing Constitutional law on public or world opinion is NOT the purpose of the Supreme Court. They exist solely to decide if a law or statute is Constitutional or not.

Let me try to put the matter this way. Sometimes the Court cannot
decide if a law is Constitutional WITHOUT considering public
opinion--that's the nature of the particular law.
So, consider aagain 'cruel and unusual.'
We have a fix on 'cruel' but what's 'unusual'?
'Uncommon?' Then lethal injection violated the
Constitution when it was first used, for it was
uncommon.

So the Court has fixed 'unusual' as what the people
of our country would view with widespread moral horror.
A punishment is 'unusual' if most people find it
morally abhorrent. A good indication of that is whether
they are repealing laws that mandate it, for instance.

How else can the Court interpret 'cruel and unusual'
do you think?

Let me suggest to you that IN THIS CASE
the Court cannot interpret the amendment without
taking into account public opinion. Best

[Bloomfield]

I won't go into the thoughts of the White House administration and world opinion, but I will talk about the Supreme Court and such.....

The Supreme Court for, oh, the past 15 - 20 years or so has been moving away from what they were appointed to do by the Constitution. Again - I won't go into the actual ruling that was handed down. But to base an opinion of the Supreme Court - NOT on whether something is Constitutional to the US, but on public "feeling" in the US and especially of the rest of the world, is overstepping the boundries and purpose of the SC by a HUGE margin. This is plain wrong, and setting a very dangerous precident.
Again - I'm not talking about the actual ruling. I'm talking about the REASONS given in the ruling for why the justices voted the way they did. Basing Constitutional law on public or world opinion is NOT the purpose of the Supreme Court. They exist solely to decide if a law or statute is Constitutional or not.
They are also hearing a lot of cases that should never have been heard - but should have stayed at the state level. That, too, is scary.

Missy

Let me just say something about the last "15 or 20 years." The criticism is much older than that, and the problem (if it is a problem) is as old as the Supreme Court. The same type of concern ("don't go beyond the Constitution in basing your decisions") was voiced in the 60s and 70s, in the 50s, in the 30s and 40s (New Deal), in the 1890 and throughout the history of the court.

The constitution is painted in very broad bushstrokes, and there is only thin air above it; so it is understood that constitutional interpretation and decision is something different from just applying statues and precedents. Since you think that this presents a huge problem, that may not be comfort, but perhaps this will be:

When the Constitution was written (and the Supreme Court formed), it was the conviction of the drafters and early politicians and judges that the Constitution was in an important way unfinished. That it had to grow through experience and be fleshed out, and adapted to changing times. The drafters of the Constitution regarded as the function of the Supreme Court to lead that process, to learn from the past, adapt the Constitution to the present, and flesh it out to the point where it could be applied in everyday life.

Finally, when you look closely, the complaint that the Supreme Court has left the firm ground of the Constition and has ventured into the boggy terrain of popular opinion, politics, or whatever; this complaint is typically raised by the side who doesn't like a specific ruling. Rulings they like are always based on solid constitutional ground, ruling they don't never are.

[brianc]

I won't go into the thoughts of the White House administration and world opinion, but I will talk about the Supreme Court and such.....

The Supreme Court for, oh, the past 15 - 20 years or so has been moving away from what they were appointed to do by the Constitution. Again - I won't go into the actual ruling that was handed down. But to base an opinion of the Supreme Court - NOT on whether something is Constitutional to the US, but on public "feeling" in the US and especially of the rest of the world, is overstepping the boundries and purpose of the SC by a HUGE margin. This is plain wrong, and setting a very dangerous precident.
Again - I'm not talking about the actual ruling. I'm talking about the REASONS given in the ruling for why the justices voted the way they did. Basing Constitutional law on public or world opinion is NOT the purpose of the Supreme Court. They exist solely to decide if a law or statute is Constitutional or not.
They are also hearing a lot of cases that should never have been heard - but should have stayed at the state level. That, too, is scary.

Missy

Couldn't agree with you more. What's even scarier to me, though, is the cases that don't get the attention that this one has, that routinely get decided a the US District Court level, and routinely based on which way the social winds are blowing. Some wags call it "legislating from the bench", and it, too, is dangerous precedent.

[TomB]

I won't go into the thoughts of the White House administration and world opinion, but I will talk about the Supreme Court and such.....

The Supreme Court for, oh, the past 15 - 20 years or so has been moving away from what they were appointed to do by the Constitution. Again - I won't go into the actual ruling that was handed down. But to base an opinion of the Supreme Court - NOT on whether something is Constitutional to the US, but on public "feeling" in the US and especially of the rest of the world, is overstepping the boundries and purpose of the SC by a HUGE margin. This is plain wrong, and setting a very dangerous precident.
Again - I'm not talking about the actual ruling. I'm talking about the REASONS given in the ruling for why the justices voted the way they did. Basing Constitutional law on public or world opinion is NOT the purpose of the Supreme Court. They exist solely to decide if a law or statute is Constitutional or not.
They are also hearing a lot of cases that should never have been heard - but should have stayed at the state level. That, too, is scary.

Missy

Couldn't agree with you more. What's even scarier to me, though, is the cases that don't get the attention that this one has, that routinely get decided a the US District Court level, and routinely based on which way the social winds are blowing. Some wags call it "legislating from the bench", and it, too, is dangerous precedent.

It's nothing new. The only thing different know are the leanings of the bench. Those too, change, but this is always the case.

Tom

[Bloomfield]

Couldn't agree with you more. What's even scarier to me, though, is the cases that don't get the attention that this one has, that routinely get decided a the US District Court level, and routinely based on which way the social winds are blowing. Some wags call it "legislating from the bench", and it, too, is dangerous precedent.

Why does everybody swallow this "legislating from the bench" crap, hook, line & sinker? Tell me that (a) it used to be different, and (b) it can be different. There'll always be difficult and controversial cases, many of them difficult and controversial precisely because there isn't a settled answer to them. No matter how the courts decide someone is going to complain because it didn't go their way. Of course no one ever complains "that decision didn't go my way," they always complain that it was decided wrong, that the courts overstepped their authority, that the judges are activists, yada yada yada.

And all this has nothing to do with right or left: The conservatives are just as willing to "rule the way social winds are blowing" as the liberals are, and both sides are just as willing to complain that the other side does it.

[missy]

Bloom - I realize it's always been a "problem", and yes, I agree that it's in part to how the Constitution was written (why the founding Father's couldn't specify that owning an AK-47 should be illegal and all that.....).

But it seems to me that the "lines" - the checks and balances - whatever you want to term it - between the three branches of the Federal government have continued to be blurred. The President is "making" laws - maybe not so much as writing the actual law, but at least drafting and pushing. The Supreme Court, it seems, are also making laws - just by the cases they have chosen to hear in recent years.

I certainly don't like that the majority of Congress and the President are of the same party. I don't care WHAT party it is - that just sets up a defeat of the checks - and - balances, and the reason our Government was set up this way in the first place. With the Supreme Court (who are not elected officials, and are in no way - unless you want to stretch the point that an elected President appoints them - representative of the "people") also getting into the mix, it is just NOT a good situation.

And, honestly, since Ohio was one of the states that had done away with capital punishment to those under 18 a while ago (I'd have to check, but I don't think it was re-instated when the state put the death penalty back in place) the ruling really is a moot point as far as I am affected. So - the ruling isn't what is bothering me. The way it was done, and the defense of the ruling, if that is truly how the defense was written, IS what is bothering me.

Missy