Citing unapproved treaty is 'act of most fundamental reordering of legal system' The fundamentals of the U.S. Constitution possibly have been shoved one step closer to irrelevance by the U.S. Supreme Court, which yesterday cited an international treaty that has not been adopted in the U.S. as support for its opinion.
The issue is raising alarms for those who have been fighting the trend toward adopting "international" standards for American jurisprudence rather than relying on a strict application of the Constitution.
"It is bad enough for the Supreme Court to engage in judicial activism," said Michael Farris, of the Home School Legal Defense Association. "It is far worse when the justices employ international law in support of their far-reaching edicts.
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"We have not ratified the U.N. child's rights treaty – its provisions should not be finding their way into Supreme Court decisions," he said.
Roger Kiska, legal counsel for the Alliance Defense Fund who is based in Europe, said the Supreme Court's use of an unadopted precedent "completely overlooks the checks and balances system that is established by the U.S. Constitution."
It's not the first time the court has done it, and "It's never amounted to any good," he said in a telephone interview from his base of operations in Europe. "It leans toward social radicalism."
He said there are reasons why the U.S. never adopted the U.N. convention, citing a recent case in Sweden in which a child was taken away from his home because his parents were homeschooling him, and other issues.
The child, Domenic Johanssen, has been in the custody of social services agents for almost a year now as his parents have fought – unsuccessfully so far – for his return home.
"That is a prime example of what can happen when the Convention on the Rights of the Child is used as a sword rather than as a shield," Kiska said.
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The Graham v. Florida decision dealt with whether young people can be sentenced to life prison terms if they haven't killed the victims of their crimes. It arose in the case of Terrance Graham, implicated in armed robberies when it was 16 and 17. He now is 23 and is in a Florida prison – for life.
Justice Anthony Kennedy, who frequently swings to the liberal side of the court, said such life sentences are not allowed.
"The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law," Kennedy's majority opinion said. "This the Eighth Amendment does not permit."
Wrote Kennedy:
We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified by every nation except the United States and Somalia, prohibits the imposition of 'life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.'
Kennedy's opinion continued:
The court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world's nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the court's rationale has respected reasoning to support it.
Jordan Sekulow, director of international operations for the American Center for Law and Justice, told WND the first danger is citing United Nations precedents at all.
Then comes the citation of international concepts that have not been adopted in the U.S.
"When they're citing laws that have not been adopted, they are creating new legal ground," he warned.
"It's great that all these other countries have adopted the laws, but until we've actually implemented it, it should have no impact whatsoever on our Supreme Court," he said.
He warned that such activism will lead the U.S. into trouble.
Other nations' courts already have been busy creating "new human rights" such as the "right" to "health care," he said.
"You can see that line of reasoning in cases," he said.
Farris, who had filed a brief in the Graham case on behalf of members of Congress, said, "There is simply no place for international law or practice in interpreting the American Constitution. International law has its place in deciding truly international cases – but a case involving juvenile offenders in Florida is a domestic case through and through.
"It was plainly gratuitous for the majority to employ international law in this context," he said.
Farris also is involved in Parental Rights, an organization urging a U.S. Constitution amendment to protect the rights of parents and families.
The amendment plan already has the support of seven members of the U.S. Senate and more than 130 in the House.
The brief filed by Farris was a response to arguments from Amnesty International, which sought the inclusion of international opinion in the Supreme Court ruling.
In claiming the U.S. was the only nation with such penalties, Amnesty had offered to the court "a hodgepodge of letters and e-mails supposedly on file in Amnesty's offices. Such 'evidence' would not be admissible in a traffic court; it is shocking that the Supreme Court relies on such data to make constitutional decisions," Farris said.
"Our brief demonstrated that the U.N. Committee on the Rights of the Child (the U.N.'s official monitoring body) had found that dozens of nations were in violation of the juvenile sentencing standards of the U.N. child's rights treaty. It is simply fiction to say that the United States is the only nation which authorizes such sentences," he said.
Farris told WND that references to "the Constitution" still will remain foundational in Supreme Court opinions. But he said essentially what will happen is that there will be "new content" ascribed to the original document.
"I think that it is an act of the most fundamental reordering of the legal system," he told WND.
The Parental Rights organization right now is working in support of a plan submitted by Sen. Jim DeMint, R-S.C., whose S. Res. 519 is urging President Obama to refrain from sending the U.N. Convention on the Rights of the Child to the U.S. Senate for a ratification vote.
"S. Res. 519 seeks to put the Senate of the United States on record that American law and only American law should govern our families and our juvenile courts," Farris said. "I hope that every American who believes that we should remain a self-governing nation will call their senators today to urge them to become a co-sponsor of S. Res. 519."
That proposal expresses "the sense of the Senate that the primary safeguard for the well-being and protection of children is the family, and that the primary safeguards for the legal rights of children in the United States are the Constitutions of the United States and the several states, and that, because the use of international treaties to govern policy in the United States on families and children is contrary to principles of self-government and federalism…"
DeMint's proposal explains that Professor Geraldine Van Bueren, the author of the principal textbook on the international rights of the child and a participant in the drafting of the convention, has described the "'best interest of the child standard' in the treaty as 'provid[ing] decision and policy makers with the authority to substitute their own decisions for either the child's or the parents.'"
The U.N. already has ruled the United Kingdom in violation of the convention for allowing parents to opt their own children out of a sex education course and determined both Indonesia and Egypt out of compliance because of the way those nations structured their national budgets.
A year ago, the HSLDA had reported that Graham Badman had generated a report that was reviewed by the U.K. government that confirmed the UNCRC "gives children and young people over 40 substantive rights which include the right to express their views freely, the right to be heard in any legal or administrative matters that affect them and the right to seek, receive and impart information and ideas."