The last section of the majority opinion (written by Justice Anthony Kennedy) in the case of Roper v. Simmons (No. 03-633), which finds the imposition of the death penalty on juveniles to be unconstitutional, refers to international norms and their relavance to constitutional issues in the United States. (For more on this case, go here.) Here are portions of that section of the opinion:
Our determination finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop [v. Dulles (1958)] the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."
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Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. . . . In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.
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The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
Justice Scalia, in a scathing dissent, sneers at the values of the "so-called international community." While Scalia's dissent is based generally on his abhorrence of what he perceives to be judicial activism, from a foreign policy perspective it is clear that there is something else at play here. Is there an international community with norms that ought to influence, if not bind, its members and, if so, is the United States a part of that community? Increasingly, we will see debates over this question played out in both foreign policy and domestic policy. Should the United States get the approval of the U.N. Security Council to go to war in Iraq, or should we act unilaterally? Should we ratify the ICESCR, CEDAW, the CRC, and the Rome Statute, or should we preserve our freedom to act according to our own standards of law and morality? Should our fiscal policies take into account the needs of the global economy, or is it each president's responsibility to act on the basis of American welfare alone (and can the two be separated)? Over and over again, people like Justice Scalia cling to a world that is disappearing. There is an international community and we ignore it at our own peril.