Roper v. Simmons Re-Visited

June 15th 2019

By: Fred Jankilevich – Attorney At Law

All Rights Reserved. June 2019.

Summary: Affirms the prohibition for the imposition of cruel and unusual punishment. Particularly, “The Death Penalty” in offenders under the age of eighteen. Affirmed under the Eighth Amendment of the Federal Constitution.

Dissenting Criteria of Chief Justice Antonin Scalia:

The Scalian dissension pertaining the Kennedy decision is grounded upon the opinion that citizens’ views pertaining the Court’s decision is “essentially irrelevant.” Scalia originates his syntactic and semantic interpretation of the dissent upon the rules of other countries and how the United States relates to those of the international community.

Specifically, Scalia’s dissent is grounded upon the stipulation of Article 37, of the United Nations Convention on the Rights of the Child.1 Purposefully, the Scalian disagreement emphasises the stipulation of such said subsection of the instrument whereby “every country in the world has ratified, save for the United States and Somalia, (…) an express prohibition on capital punishment…

A further reading of the Scalian dissention focuses on Congressional nationalisation and the pertaining relevant international instruments. Explicitly, the International Covenant on Civil and Political Rights as a central instrument for the basis of interpretation:2 “The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (…) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age.” (The underlined text does not conform to its original source)

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Therefore, as per the Scalian interpretation, unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, there is no evidence in favour of the presumed stance. Thus, it may be inferred, Scalia believes in his dissent that the American Courts have the favour of international law to the extent that the Senate, the President and the actors of the Constitution empower these instruments to be of favour to them.

It can be inferred, further thus, that the above-cited Congressional reservation means executive, legislative and judicial authorities uphold this principle: The “Ultima Ratio” is entitled to the constitutional actors. Therefore, in accordance to a Scalian interpretation of those who confer is against American interests: “…the Court’s reassurance that the death penalty is really not needed, since the punishment of life imprisonment without the possibility of parole is itself a severe sanction…”

Concretely, the Federal Union insists upon inquiring what American tradition upholds in practice. To this extent, an empirical question is raised by Antonin Scalia. The empirical question is determinant: Do States “in fact” apply the juvenile death penalty that their laws allow? As a result, it can be inferred from the above-cited that: i.- The states conform the United States of America ii.- It is up to the states that conform the United States to uphold what they deem is the Law of the Land iii.- American Courts do not inquire about foreign nations. Accordingly, the fabric, autonomy and competence of the American legal system is founded upon the Principle of No Intervention from foreign nations. In this sense, Chief Justice Scalia emphasises the risk of upholding minutes and stipulations of instruments that belong to what may be a “tyrannical political makeup,” a “subservient system” or an “incompetent court system” as a result of systems that are foreign instead of national.

Therefore, the Scalian dissent weights the systemic health of the system against what seems to be a humanitarian aberration, but from a Scalian legal stance to American jurors is not: The preservation of the mandatory death penalty as a safeguard of systemic security. In the words of Blaskovich, “To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost always does, withhold the death penalty from an under 18- offender…”3(Emphasis Added). As a result, it can be deduced that there is a transparent, efficient conversion from the intention of the legislators to the practice of the Courts in the sense that the right of warrant as a figure of authority is reserved. In short, Foreign authorities do not speak in American Courts.

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As per the Scalian dissent, an acceptance of international law breaches the basic premise established “By Default” in judicial argument: American law should not conform to the laws of the rest of the world. In practice, a constitutional interpretation permits American judicial practice to apply this through the use of the “Exclusionary Rule.” Specifically, the precedent of “Mapp v. Ohio” is reminisced.4

Chief Justice Scalia further emphasises in his deliberation of the dissent, that an interpretation of the views of other countries during the exercise of American judicial practice constitutes a breach of the First Amendment. In this sense, the Rosenberger precedent is reviewed: The recognition of the “Establishment Clause” and the dangers emanated therefrom are remembered: 5 “… the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision…”

On a further note, the Rehnquist Court aligns well with the Scalian opinion. In this sense, pertaining Ohio State and Abortion, the Rehnquist Court reminds the judicial practitioner how the United States fell “on deaf ears” regarding the international legal opinion pertaining the matter.6 “Roe v. Wade” is complementary and faced a similar result.7

Further thus, even where the Scalian dissent is most indefensible, the premise proves valid from a historical interpretation of the law. In the case of the United Kingdom, where the principle of “Special Reliance” prevails, a reading of international instruments is still deaf. Harmelin v. Michigan can remind Americans pertaining “Cruel and Unusual Punishment” the penalties are not authorised by common law or statute in England, but administered by the Crown or the Crown’s judges. Nevertheless, in American Courts, an originalist interpretation of the law rejects the nationalisation of the precedent weighted against the Eighth Amendment. In proper legal practice, it is the duty of American Courts to determine America’s “standard of decency.8

In conclusion, Scalia proposes foreign opinions do not constitute reasoned basis.

1 1577 U.N.T.S.3, 28, I.L.M. 1448, 1468-1470. Sept. 2, 1990.
2 ICCPR. December 19, 1966, 999 U.N.T.S. 175, ante, 161 L. Ed. 2d at 20, 26.

3 Simon R. / Blaskovich D. “Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies and Public Attitudes the World Over.” 2002.

4 Mapp v. Ohio, 367 U.S. 643, 655, 6L Ed. 2d 1081, 81 S. Ct. 1684, 86, Ohio Law Abs. 513 (1961).
5 Rosenberger v. Rector. 515, U.S., 819, 842, 132, L. Ed. 2d 700, 115, S. Ct. 2510 (1995). 6 65 Ohio St. L. J. 1283, 1320, (2004)

7 Roe v. Wade, 410, U.S., 113, 35 L., Ed. 2d, 147, 93, S. Ct. 705 (1973).
8 Harmelin v. Michigan, 501, U.S., 957, 973-974, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991).

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