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Judicial Activism and the Death Penalty

Paul Dean
Paul Dean
2005 7 Mar

No doubt exists that the U.S. Supreme Court has evolved over the years in a variety of ways, not the least of which is the move from interpreting the law to engaging in judicial activism. In this evolution, the judicial branch now acts in a legislative fashion. Further, the court is now prone to riding roughshod over states rights and appealing to foreign law in formulating its decisions. Such was the case last week as the high court banned states from executing murderers who committed their crimes before eighteen years of age. As we think about these things, a number of issues are raised including that of states rights, court procedure in regard to precedents, accountability, the nature of law, and the death penalty itself. In part one of this article today, we will consider only the first two issues.

Let me make an appeal first, however. Christians must think through these issues, complicated though they may be. For example, those of us who are socially conservative may wonder why anyone would question the validity of the death penalty. While I affirm the death penalty in principle, serious questions must be answered, not the least of which revolves around who should implement such a penalty. Too many of us are stricken with the malady of myopia. We tend to look at things through our own context without taking into consideration the much broader context in which biblical interpretation must exist. By way of illustration, how many of us would be in favor of Nazi Germany implementing the death penalty? Very few I should imagine, in light of what the German State did with it. As Christians, it's simply not good enough to be socially conservative. Taking the time to think through these things is critical.

First, there is the issue of states rights. How quickly people forget our nation's history and national philosophy grounded in liberty. The sovereignty of the states was assumed and guarded from the country's inception by the vast majority of Americans for over one-hundred years. The Founding Fathers clearly affirmed states rights and limited government. A centralized government grounded in anti-liberty sentiment was fully and finally realized in and through the war between the states. The strength of a unified America today, consisting of fifty states, may be a plus on the international scene. As Christians and Americans, we pledge our allegiance to our country, not one particular region of the country. But, the fact remains that Christian principles of liberty, God-given rights, and the Constitution were set aside for what some perceived to be a greater good, the preservation of the Union. Of course, that union was based on voluntary association prior to the government's actions of 1861-1872.

While the result today in our minds, nationally speaking, may be a good one, the ends never justify the means. Pragmatism is an unbiblical philosophy--even rending the church apart today. It is this pragmatic political philosophy that causes most of us to consider it a waste of time to think through the issues under consideration 140 years ago. However, we should take more notice since the rights of the people were trampled upon and destructive policies were put in place. Many others have followed this example in the ensuing years. A myriad of liberty destroying policies have been imposed including this one by the Supreme Court.

The Supreme Court overturned a 1989 ruling and seventy-two murderers who committed their crimes as juveniles are no longer on death row. While nineteen states had allowed the death penalty in such cases, they no longer have that right according to the Court. Regardless of one's position on the death penalty, the Supreme Court's ruling last Tuesday was but another affirmation of centralized government taking power to itself, answering to no one, and setting aside principles for which our Founding Fathers died. Justice Antonin Scalia apparently agrees. He said that the issue of capital punishment should be determined by individual states, not "the subjective views of five members of this court. . ." One main reason for the ideal is that there is no such thing as a federal common law under which crimes are tried.

Can it get any worse? The answer is yes. In its 5-4 ruling, the Court majority cited a United Nations convention, an international treaty, and laws from the United Kingdom in support of its radical decision. Not only have states rights been set aside by the American High Court, but they have been set aside based upon foreign consensus. This move is but one step closer to the United States itself giving up its sovereignty. This issue was raised when former President Clinton on one occasion submitted the United States military and foreign policy to the United Nations. Of course, the issue was also hotly contested in the most recent Presidential election. While the court has not given up sovereignty, the appeal to foreign law and treaty is no less alarming. We find ourselves on a slippery slope. Once the slide starts, it's difficult to stop, as we have been sliding for some time now. To repeat Scalia's quote, with a final phrase added, he emphatically stated that capital punishment in the United States should be determined by the states and not "the subjective views of five members of this court and like-minded foreigners."

Second, this ruling raises the issue of court procedure in regard to precedents. We must consider that under the common law practice, there could be some international input, which especially happened in early American history before we established our own precedents. Yet, there is a procedure to follow before a court would ever appeal to international precedent. The way it works is that a court looks to uphold and apply the decisions of courts in its own state, especially the Supreme Court of that state. If no precedents are found to support a ruling, the court looks to federal cases in their state and if none are still found, it moves to cases in neighboring states. The process continues throughout America. Only at that time if no precedents are found may the court look to any other common law jurisdiction in the world. The problem with this ruling is that the Court went directly to other nations with no regard for our own precedents or constitutional protection regarding the individual states and the rights of their respective citizens.

In his dissent, Scalia questioned the Court in its willingness to adopt the opinions of foreigners and overrule the will of the American people in nineteen states. "Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage." Cited in the ruling was Article 37 of the United Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the laws of the United Kingdom. Scalia found the appeal to the UK particularly grievous because they have submitted to "the jurisprudence of European courts dominated by continental jurists--a legal, political, and social culture quite different from our own."

Normally, when the word "foreigners" is used I sit up and notice. In this country of supposed political correctness and anti-racism, the word is often used in a pejorative manner. As Christians, we should be offended when persons speak in a negative or ugly manner about anyone, not just a few select cultural subgroups. How often do we unilaterally oppress "foreigners" with tariffs citing the goal of protecting "our own." How many Christians are more concerned about American casualties than Christian casualties in war, or the death of so many who are blown into eternity without Christ? Nationalism is alive and well in the church today. The problem is that nationalism is akin to racism in that persons are looked down upon simply because they weren't born in America. Racism of this variety is alive and well in America.

However, here, the term "foreigners" is appropriate in that we do exist in a particular culture with a particular worldview, a worldview which is fast eroding because of philosophical multicultural influence. To take the worldview of European culture, a culture far removed from God, and impose it on the American people, is to favor a foreign culture's values over our own. Our own convictions and identity are obliterated in the name of global consensus. In a sense, we have a reversal of multiculturalism in this case as all truth claims are to be held as equally valid in that worldview. While their view is such, and philosophically untenable I might add, the only truth claim regarded as invalid is the Christian truth claim. Western thought is attacked by virtue of its association with Christianity. That too is a form of racism. Also of note is that government policy cannot establish a worldview, it only reflects one. The worldview reflected by the Court decision is far removed from our own.

Scalia wrote, "Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position… That the Senate and the President--those actors our Constitution empowers to enter into treaties…have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces . . . More fundamentally, however, the basic premise of the Court's argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand."

The issues Scalia cites are the critical ones: no national consensus and conformity to alien law. In the desire for global acceptance, the elitist mentality sees no problem in making decisions for the American people. A callous attitude in regard to their will, their liberty, and their worldview is in play.  The average American is seen as too ignorant to know what's best for himself. Those in power, we are told, do us a favor when they ignore our rights in deference to the higher authority and greater good of globalization. Proactive public policy rules the day and political actors relish the power they have through enacting proactive decrees. Never mind that conformity to alien law is, in a word, alienating. The divisions that run deep in this country are only getting deeper with each push from the left. Freedom for all to co-exist despite their cultural differences is not the ideal for the liberal intelligentsia. Their freedom to conform the ignorant masses to their way of thinking, whether by persuasion or the exertion of power, is the ideal that drives them. After all, they know what’s best.