Sovereignty Advocates Urge U.S. Supreme Court to Not Rely on International Law
Wednesday, September 30, 2009
Over the past few years, the United States Supreme Court has cited international law as a basis for overturning state laws permitting the sentencing of juvenile offenders to death and prohibiting sodomy between consenting adults of the same sex. In two cases to be argued before the Court on November 9, the Court will consider whether it is a violation of the Eighth Amendment’s ban on cruel and unusual punishment for juvenile offenders to be sentenced to life without parole. In an amicus curiae (friend-of-the-Court) brief filed with the Court on September 18, a group of conservative organizations has urged the Court not to rely on international law to decide these cases. The brief makes the point that doing so will undermine the democratic process and rule of law and will create uncertainty about a multitude of domestic laws.
Many Americans are concerned about the Court’s recent reliance on international law as a basis for deciding important constitutional questions. In Lawrence v. Texas (2003), the Court struck down a Texas sodomy law as violating the liberty interests of consenting same-sex adults. The decision had the effect of invalidating similar laws throughout the United States. In the case, the Court referred to a decision of the European Court of Human Rights as support for the proposition that the right of same-sex couples to engage in sodomy “has been accepted as an integral part of human freedom in many other countries.” In Roper v. Simmons (2005), in striking down state laws permitting the sentencing of juveniles under the age of 18 to the death penalty, the Court relied on an international human rights treaty that has never been ratified by the United States Senate.
This term, in deciding the cases of Graham v. Florida and Sullivan v. Florida, the Court will once again be tempted to rely on international human rights treaties that have not been ratified by the U.S. Senate or to which the U.S. Senate made reservations that specifically exclude their application to the sentencing of juveniles to life without parole. In an amicus curiae brief filed in these two cases, Amnesty International and other non-governmental organizations argue that there is a customary international norm that prohibits the sentencing of juveniles to life without parole upon which the Court should rely in overturning state juvenile sentencing laws in over 40 states. To the contrary, the amicus curiae brief filed by Solidarity Center for Law and Justice, the Sovereignty Network, and others argues that there is no applicable international human rights treaty law that prohibits the sentencing of juveniles to life without parole. The brief also argues that there is no customary international norm against such sentences that is sufficiently definite to serve as a basis for the Court’s decision.
If the Court chooses to rely on international law in interpreting the Eighth Amendment to the United States Constitution, much damage will be done to the democratic process and rule of law. The citizens of Florida and a majority of other states have enacted juvenile sentencing laws and continually debate their effectiveness and continued merits. In addition, Federal law permits the sentencing of juveniles to life without parole and the United States Congress is considering legislation that would permit the periodic review of such sentences to determine whether parole is warranted. Yet, by relying on international law, the Court would overturn these democratically-enacted laws and unilaterally abort the ongoing democratic process.
Also, the scope of the ever-expanding area of international human rights law touches on all aspects of U.S. domestic policies, including civil, political, economic, and social rights. Plus, unaccountable United Nations experts in Geneva are constantly “interpreting” these human rights and reviewing the practices of nations in regards to their adherence to these “evolving” rights. If the Court continues its trend of citing international human rights laws as a basis for its decisions, then there is no limit to the Court’s power to overturn state and federal laws involving all human rights, including children’s rights, women’s rights, the right to health, the right to education, the right to a safe and clean environment, the right to an adequate standard of living, the right to food, the right to housing, the right to water, and a myriad of ambiguous human rights.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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