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Alito's Disturbing Response to Questions About Foreign Law

by TChris

Judge Alito’s testimony embraced an isolationist’s view of the law (discussed in this post) that is often echoed by members of the extreme right:

"I don't think it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution," Judge Alito said in response to questions from Senator Tom Coburn, Republican of Oklahoma, in the third day of the judge's confirmation hearings before the Senate Judiciary Committee.

"I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said. "The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans."

No member of the Supreme Court believes that foreign law carries the force of precedent or deserves controlling weight when interpreting the Constitution. No member of the Court bases an understanding of the Bill of Rights on a “poll.” These are the impressions that extremists on the right falsely convey, and it is disturbing that Judge Alito did not disavow these fundamental misunderstandings.

To understand whether the imposition of the death penalty under certain circumstances would be cruel and unusual, recent Court decisions have taken note of, among many other factors, world-wide norms. Some conservatives, like Justice Scalia and Judge Alito, believe that foreign affairs cannot influence an interpretation of the Eighth Amendment.

Mainstream judges, like Justice Breyer, recognize that American values do not exist in a vacuum. While American values do not always keep pace with change in the rest of the world, they are not uninfluenced by worldwide opinion. If the world has generally come to accept that some punishments are too severe to inflict, it’s reasonable for the Supreme Court to take note of that global trend.

Judge Alito, a charter member of the Robert Bork fan club, wouldn’t look to foreign law because he, like Bork, is an originalist. He doesn’t agree that the Constitution is a living document that defines a set of core values capable of adaptation to changing times and circumstances. An originalist’s understanding of “cruel and unusual punishment” is frozen in time; if a punishment wasn’t unconstitutionally cruel in 1789, it cannot be today. Go ahead and flog; the old ways are still the best.

Because Judge Alito views his job as divining the specific meaning of “cruel and unusual punishment” as understood by the Framers more than two centuries ago, the modern world is unimportant. If evolving standards of decency in this country are irrelevant, values in other countries similarly merit no notice.

For obvious reasons, Judge Alito's originalist philosophy is out of step with a mainstream (and, ironically, with the Framers' original) understanding of the Constitution. Perhaps for that reason, Judge Alito did not attack the use of foreign law from the perspective of an originalist, but argued (in essence) that it's just too difficult to understand foreign law, and downright un-American to try. Judge Alito could have made that argument without lampooning the Court’s Eighth Amendment jurisprudence by suggesting that it all boils down to a “poll” of foreign countries. This was the kind of cheap shot we’d expect from Tom Coburn, not from someone who wants to join the Court whose work he has just ridiculed.

This post took Judge Roberts to task for implying that judges should live a “cloistered life,” untouched by the world around them. If anything, Judge Alito’s testimony was more blatant in its pandering to the extreme right.

Judge Alito evidently disagrees with Justice Breyer, who argues that American courts can learn from the successes and failures of other constitutional sytems. It's fair to disagree. It isn't fair to agree (even tacitly) with Tom Coburn's claim that it "undermines democracy" to place American law in the context of the world around us. It is telling that Judge Alito didn't disavow that assertion, or Coburn's yahoo-ish claim that considering foreign law "violates the Constitution." Is Judge Alito trying to tell Sen. Coburn that he shares Coburn's extreme views?

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    After Coleman's belittling comments on judges' use of "foreign polling" he requested the addition of TWO FOREIGN studies about the effects on women's abortions into the official record. I laughed out loud. Of course he'll never see the hypocrisy.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#2)
    by jimcee on Wed Jan 11, 2006 at 07:00:40 PM EST
    I'm not sure that the Supreme Court should take foreign law into consideration. Thier job is to interperet the Constitutionality of and judicial rulings in regard to US laws according to the US Constitution. It is fine for the legislative branch to write and make laws using foreign ideas as a basis but again it is the Supreme Courts job to decide (if asked) if the law is constitutionally OK according to the US Constitution. I can think of some really nasty countries that one could figure into the foreign influence catagory. Zimbabwe, Cuba, China, etc. It isn't so-much isolationist than it is a part of the justices sworn duty to uphold the United States Constitution. But then again I'm not a lawyer.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#3)
    by jimakaPPJ on Wed Jan 11, 2006 at 07:19:02 PM EST
    He just got my vote.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#4)
    by Dadler on Wed Jan 11, 2006 at 07:27:03 PM EST
    Our legal system evolved from foreign origins. Examining and understanding those origins, and sometimes using them for guidance, is exactly the kind of thing an evolved, open mind does. The consitution didn't develop, nor does it exist in a vacuum. Nor do we. If we can learn something valuable from the laws of another nation, then it would be stupid not to.

    The odd thing is that in the first 100 years of our constitution the SCOTUS cited foreign law over 100 times (if memory holds). I mean the Founders understood that our constitution was founded on the best principles available to Enlightment-Era man. Put another way, more hokum from the right that bares no resemblance to history.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#6)
    by jimakaPPJ on Wed Jan 11, 2006 at 07:41:44 PM EST
    Dadler - Spell this. U N I T E D S T A T E S. That is the country you live in. Not France. Not Germany. Not Iraq (count your blessings). Not Italy. UNITED STATES. Now why in the world would I give a damn about these other countries who have been in and out of trouble for the past two hundred plus years? What can France teach us? How to NOT defend ourselves and lose the country to Moslems? What can Grmany teach us? How to start a world war, get our as* kicked and then moan about someone taking a commercial customer from us? What can Spain teach us? How to cut and run when a terrorist kills some of us? What can Italy teach us? How to let a leftist journalist make a bunch of false claims? What can the Dutch teach us? How to make cheese and great beer? I mean please. Open minds? So is a sewer.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#7)
    by wg on Wed Jan 11, 2006 at 07:42:03 PM EST
    I basically gave up on this issue. Certain human/civil rights and legal principles are universal and as such need to be evaluated in universal context. Slavery was one such issue where the reflexive parochialism of this country's legal system had brutal consequences for many generations of black people in this country. Checking the "wisdom" of European societies would have had greatly hasten the resolution of that case. Another one is the current issue of treatment of citizens of this country by the legal system. The indignities respondents, prisoners, detainees, petty and otherwise suffer in our courts, jails and prisons are multitude, deeply entrenched, getting worse daily and unthinkable in the rest of civilized world. To the point that the government had to exclude this country from a UN convention mandating proper treatment of such. The issue sits at the intersection of national pride, knee-jerk jingoism, and the inherent interest of the judiciary (their self-image which is feudal mostly), and for that reason is hopeless. T Alito is a rather narrow legalistic mind, unable to see much of a bigger picture, basically reactionary in the sense of reflexive opposition to political or social liberalization or reform so I'm not surprised that this is his position.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#8)
    by wg on Wed Jan 11, 2006 at 08:22:07 PM EST
    meant to say: .. deeply culturally entrenched, ..

    Re: Alito's Disturbing Response to Questions About (none / 0) (#9)
    by Dadler on Wed Jan 11, 2006 at 08:31:29 PM EST
    Jim, The laws of this nation were based on laws of other, older nations. If you think I'm calling for French and German or whatever law to blindly become the law of the U.S., you are really not comprehending. Do you think it bad to learn from other people if and when you can? Of course not. Why would you think it bad for our legal system to learn from others if and when it can? What if some other country had the greatest idea in the world. Do we ignore the benefit of utilizing that idea ourselves simply because it's "foreign" in origin? I notice England wasn't on your list. How come? What about ancient Greece, where democracy started?

    Re: Alito's Disturbing Response to Questions About (none / 0) (#10)
    by ras on Wed Jan 11, 2006 at 08:38:48 PM EST
    Dadler, The pt is not whether a country should be open or closed to new ideas per se, but whether the people - thru their elected reps and/or referenda - have the right to pick which of those ideas they'll choose to live by, aot to having unelected judges make that determination for them. In a democracy, that right vests in the people, not the judges.

    "I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said. "The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans." "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    Re: Alito's Disturbing Response to Questions About (none / 0) (#12)
    by Dadler on Wed Jan 11, 2006 at 08:51:48 PM EST
    Ras, I disagree, since when was the last time you heard of a defendent convicted because the judge decided to apply foreign law rather than American law in his U.S. courtroom? To me it's about whether limiting the judicial intellect to only "American legal thoughts and ideas" is a good thing. I just don't see the benefit in denying certain knowledge and insight, and the added perspective it could provide, just because it might be "foreign" in origin.

    When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
    Strictly speaking, foreign jurisprudence is not normative in this country. It being the case that many nations look to the American Experiment, and it being the case that the Founding Fathers did, in fact, have a decent respect to the opinions of mankind (contrary to what Alito thinks, it would seem), it would seem appropriate if we drew upon the values that we share with other countries to justify what we do as a nation.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#14)
    by wg on Wed Jan 11, 2006 at 09:34:40 PM EST
    ( onto Alito proper, random notes ) Somehow I sense a disappointment here. People sort of expected to see some kind of a judicial ogre, a Transylvanian Drakula to bare his conservative fangs at the committee or at least somebody as sinister as Dick Cheney. Instead, we get to see a somewhat over-the-hilly, pasty man who looks like they dragged him out of some musty judicial closet into a broad daylight, slouching his flabby frame in that chair and delivering his mercifully competent English in that familiar but still annoyingly pompous way of American judges. And sounding vaguely reasonable while surrounded by a family that looks as odd-ballish as yours and mine. Is he really that boring, that harmless? I admit I originally misjudged him. He doesn't appear to have much of an agenda, overtly at least. It is rather that people who have one find him the best proponent for it. However, the problem with the "state vs individual" issue remains as amply evidenced by these hearings. Consider his responses to Kennedy's questions re that 10 year old girl strip searched by the police. Why did he think that was nice and proper? Well, he said, look, the police asked for a warrant authorizing searches of anybody on premises, she was there, and the established law in this country says that once a search is authorized, as it was here, it is open-ended. That is they can search anything including 10 year old girl's vagina if they want to. And he shrugged. There is a certain moral callousness here that is deeply troubling. He may not know it, or not practice it, but we do have in this country a constitutional prohibition on conduct that "shocks the conscience". And that's what most of us see here, me, you, Kennedy, and his fellow judges. Alito doesn't, just shrugs his shoulders. They are us, the government, seemed to be implied. A dry legalistic mind the only thing at work here that is mostly unaware of moral/societal implication of what it is doing. That's not very helpful in the SC candidate.

    Unlike TChris, he can actually read and comprehend the Constitution.

    To understand whether the imposition of the death penalty under certain circumstances would be cruel and unusual, recent Court decisions have taken note of, among many other factors, world-wide norms. Some conservatives, like Justice Scalia and Judge Alito, believe that foreign affairs cannot influence an interpretation of the Eighth Amendment.
    Thank you, Tchris. Very nice post, and one that makes clear what the controversy is about. Conservatives like to bark about the references made by the justices who decided it was "cruel and unusual" to execute minors. The justices who took that position weren't applying "foreign law". They were trying to come to an understanding of how to interpret the phrase "cruel and unusual." Oddly, the Constitution doesn't say what's cruel and unusual. However, some of our more conservative friends would have us believe that we can only gain insight on the question from our fellow Americans.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#17)
    by phat on Wed Jan 11, 2006 at 11:17:55 PM EST
    this whole "poll" of other nations' law claptrap is code. It's something that has been spread around in the right wing for years. I think it stems from the "evolving standards" argument, which the right-wing have hated for a long time. It gets used all the time. Alito and his coaches know that if they drop these terms into the hearings that the right wing will eat it up. Hence Jim's response. I think the use of the term "poll" says as much about Alito as anything. It's a wink to the right. Any serious person who studies any of the various decisions made by the Supreme Court over the years should be able to see that no Justice takes a poll of other nations' laws. Take the recent ruling outlawing the execution of minors. Few, if any, death penalty supporters looked at the actual basis of the decision. They specifically attack the mention in the decision that other civilized nations don't do this anymore. But that is not the basis of the decision. They looked at the statutes of a majority of state legislatures to attempt to guage popular opinion. It's funny, too, because in that decision the court specifically says that "polling" of Americans can't be used in their decision as public opinion polls aren't trustworthy. I suppose you might think the Supreme Court are lying when they say they don't trust polls. But that's as may be. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#18)
    by phat on Wed Jan 11, 2006 at 11:41:26 PM EST
    I also find it disturbing that a man like John Kyl, who has no respect for the concept of Habeus Corpus is on the Senate Judiciary committee. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#19)
    by DonS on Thu Jan 12, 2006 at 06:10:08 AM EST
    JimP, On your last nerve, huh? Can you spell X E N O P H O B I C ? And there are still seven or eight countries in the world that have capital punishment so I'd hate to write them off as backward.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#20)
    by jimakaPPJ on Thu Jan 12, 2006 at 06:20:03 AM EST
    Dadler - This country was founded on western European customs and laws. Since then the country has changed. It has not always been correct, but on the average, it has improved greatly. I think it can still improve. These other "laws" that are referred to may be "good" laws. They may be "bad" laws. Absent a specific example no one can say. What can be said is that they were not enacted by US representatives elected by US citizens and any connection they have with our past and our culture is purely coincidental. So the question really becomes, why? Why should our legal system pay any attention to them? We have our laws, our customs and our country. We have treaties that provide for cooperation in certain areas. So why go further? Because the desire to do so is reflective of the belief by some that we should subject ourselves to an organization that has failed in its goals and is now corrupt. The UN. phat – It is the Left who has brought forth the argument that we should be observing and using foreign law. That argument is rejected because it has no bedrock. No firm floor on which we can govern ourselves. Without that, why even have a constitution? Why not just poll the world? Oh, should we automatically kill new born babies with certain birth defects? The Dutch do. Shall we forbid education of women? Some Moslems do. “Evolving standards” is a much sounder argument, and one that can be won, if the standards have evolved. R v W will never be overturned because standards have evolved. Execution of juveniles is the same. So why wave a red flag and try to use foreign law as a cover? It is arrogance times 10 and is very poor way to try and win support.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#21)
    by jimcee on Thu Jan 12, 2006 at 06:49:55 AM EST
    It is obvious that many respondents to this thread really have no understanding of how the three branches of Gov't work. The legislature makes the laws using whatever basis that they choose including foreign law. The executive branch either approves or vetos that legislation, If it approves then it becomes law. If someone objects to the law they may argue the contitutionally of that law up to the Supreme Court. It is then up to the Supreme Court to decide if the law is constitutionally sound based on the US Constitution which was written by elected people and amended by 2/3 of the states and then by the legislature. So that being the case how does the Supreme court write new laws based on foreign law? Since when does the Supreme court write any laws? Obviously there are some here who really need a primer in how the US gov't works. Others are just being willfully ignorant because they want the courts to make law because they can't get thier way through the legislature as the constitution requires. Sheesh.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#22)
    by Slado on Thu Jan 12, 2006 at 08:39:31 AM EST
    Charlie that is not true. Alito actually covered this yesterday. Basically the laws were on the books but people weren't obeying them or passing local laws to circumvent them. Alito said this was when Justices could be veiwed corageous by holding up laws that were unpopular. Not writing new ones. The Supreme court doesn't write legislation. Much to the shagrin of liberals. Reread Jimcee's post again.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#23)
    by Dadler on Thu Jan 12, 2006 at 09:06:49 AM EST
    Jim, I must say, I don't understand what you are fretting about AT ALL. Don't get it in the least. Oh well.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#24)
    by Slado on Thu Jan 12, 2006 at 09:14:13 AM EST
    You're right and Alito agrees with you. If you read/listened to his testimony he said that judges can be courageous when they support unpopular laws or strike down popular ones that are unconstitutional. Not use popularity or their personal beliefs as the basis for their decisions. Alito will make decisions based on his understanding of the law on a case by case basis. This drives liberals crazy because feelings and popularity should affect decisions...or foriegn law...not the facts. Alito will be confirmed. Bring on the next nomination.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#25)
    by pigwiggle on Thu Jan 12, 2006 at 12:04:29 PM EST
    Regarding what may or may not be cruel punishment. The ‘because other folks do it’ reasoning is pathetic and juvenile. If you would like to see the effect of this or that law, it is more than reasonable to look to those places that have experience with them. However, if you are looking to make the argument for the validity or justness of a particular law you had best get about making a sound argument. And regarding ‘worldwide opinion’ and ‘ global trends’ in interpreting the constitution. Several European countries have enshrined, for example, freedom of speech in their constitutions. All of these have made untenable concessions for certain unpopular political speech. How would one justify taking account of ‘worldwide opinion’ and ‘global trends’ in deference to one particular liberty, freedom from cruel and unusual punishment, and not others, freedom of speech and assembly, or the right to self-defense and to bear arms? Look, the constitution is a living document only in as much as a provision has been provide for its amendment. If global opinions are American opinions then the document will be changed. And if not, then Americans shouldn’t be subject to laws interpreted in light of those passed by legislators they have no hand in electing.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#26)
    by phat on Thu Jan 12, 2006 at 01:28:22 PM EST
    The supreme court specifically does not use foreign laws to decide cases. Read the decision. Here is a brief explanation concerning Roper v. Simmons:(from deathpenaltyinfo.org) The Court explained that the primary criterion for determining whether a particular punishment violates society’s evolving standards of decency is objective evidence of a national consensus as expressed by legislative enactments and jury practices. The majority opinion found significant that 30 states prohibit the juvenile death penalty, including 12 that have rejected the death penalty altogether. The Court counted the states with no death penalty, pointing out that “a State’s decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles. The Court further noted that juries sentenced juvenile offenders to death only in rare cases and the execution of juveniles is infrequent. The Court found a consistent trend toward abolition of the practice of executing juveniles and ruled that the impropriety of executing juveniles has gained wide recognition. There are very specific tests the court uses when attempting to discern standards of decency. These tests are what the Roper v. Simmons case is based upon. Foreign laws are mentioned in the decision:(from deathpenaltyinfo.org) The Court further noted that that the execution of juvenile offenders violated several international treaties, including the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights and stated that the overwhelming weight of international opinion against the juvenile death penalty provides confirmation for the Court’s own conclusion that the death penalty is disproportional punishment for offenders under 18. Nowhere in the decision does the Court state the foreign laws are used as a test. Scalia misrepresents the majority opinion as do those who would like to claim that the Court is beholden to other nations'. It's claptrap. It's terribly dishonest and it is being used to further an agenda. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#27)
    by phat on Thu Jan 12, 2006 at 01:35:46 PM EST
    Furthermore, if you believe that the Court's test for a concensus is flawed, talk about that. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#28)
    by jimcee on Thu Jan 12, 2006 at 06:26:44 PM EST
    Gosh, I not suprised but I do find it amusing that no one on the left seems to want to challenge the truth of my earlier posts on how the Gov't works. Legislature makes law. Executive gives a thumbs up or thumbs down to said law. When said law is challenged the Supreme Court decides if the law is allowed under the United States Constitution as it is written at the time that the case is brought to the bench. So again I challenge anyone who disagrees to argue that this isn't how the Gov't operates (theoretically at least) and to tell me where I'm wrong. Outside of constitutional law what is there for a Supreme Court nominee need to say. As I said earlier, I'm not a lawyer but this seems pretty simple to me. If you can argue why Foreign law should influence the Supreme Court's interpretation of the US Constitution and the laws that are subjected to it then please bring it on. Obviously you can't because you have had all day to pontificate but no one has responded to the obvious question. The Constitution is a fine document and should be read by all Americans but alas it isn't. As is evidenced by most respondents here. Apparently it contains things that are uncomfortable to certain respondents to this site but nonetheless it is the Constitution. Please explain where I am wrong.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#29)
    by jimcee on Thu Jan 12, 2006 at 08:25:43 PM EST
    Charlie, Although I promised TL that I would try not to respond to your insults, I do have to say that you are the most petty and sadly ignorant respondent on this site. (apologies to Jerilyn). Charlie, If you had a reasonable arguement you would have made it by now. Obviously you don't and you are just taking up TLs bandwidth that could be used by more informed folks. Charlie if you want to respond to my arguements with the same I would be impressed but you really are out of your class. Argue my points or use invective. Your choice. Either way I'm right and your....well just a fool, unless you can prove me wrong. Without invective, calling my points... Just saying.... Have a nice evening.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#30)
    by phat on Thu Jan 12, 2006 at 08:34:27 PM EST
    Gosh, jimcee. I thought I said more than once, as have other people here, that the Supreme Court does not and has not used foreign law to decide cases. I used the specific example of Roper v. Simmons. There are other examples (Atkins is one) You haven't read what I posted. You haven't read what other people have posted. It strikes me that you haven't read the decision that I used as an example. I'm getting tired of this willful ignorance on the part of certain people in this country. This idea of the Supreme Court stems from a misrepresentation of Supreme Court decisions. It's that simple. I am sick of it. Argue the decisions written. Argue the points and tests used. If you do not like the idea of an "evolving standard of decency" then argue that. If you don't like the tests the Court uses to discern the current accepted standards of decency then argue that. I was a little hesitant to go after Alito. There was little evidence that I found compelling to think he is an ideologue unqualified for the Supreme Court. After hearing what he had to say about this with, "The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans." I changed my mind completely. Any judge in his position should know the Court's decisions better. I can only assume he does know what has been written in Roper v. Simmons. The fact that he would cart out these lies about the Court tells me he has a specific agenda that is not in the mainstream of current jurisprudence. Furthermore, if he is that blatantly ignorant of the decisions he really shouldn't be a nominee in the first place. He spoke in code to get guys like you to love him. It worked and I'm disappointed. I would guess the orginal question was a set up so he could read this script. It's disgusting and it doesn't belong in these hearings. It insults the process. It insults the Senate. It insults the American people. You have a responsibility, if you are to argue this sort of thing, to do the reading. It's all out there. You can download well-written summaries of the decisions. You can download the decisions themselves. Everyone has a right to their own opinion, but not their own facts. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#31)
    by jimcee on Thu Jan 12, 2006 at 08:59:22 PM EST
    Phat, You have written more into my arguements than I have. My arguement is simple: What part of Constitutional construction is not obvious. Legislative, makes law.(the elected fellas) Executive, approves or vetos the law.(Could be Bushies or Clintonites) Judicial, decides whether the law is constitutional. (pretty much is being decided about now). I find it hard to believe that this is nothing more than ignorant nonsense masquarading as honest politics. And you know better than this foolishness.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#32)
    by phat on Thu Jan 12, 2006 at 09:20:25 PM EST
    I'm not sure that the Supreme Court should take foreign law into consideration. Thier job is to interperet the Constitutionality of and judicial rulings in regard to US laws according to the US Constitution.
    If you can argue why Foreign law should influence the Supreme Court's interpretation of the US Constitution and the laws that are subjected to it then please bring it on.
    The point is that no one is arguing that. The Supreme Court certainly hasn't. The fact that Alito would imply that they have is disgusting. He doesn't belong on any bench, let alone the Supreme Court. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#33)
    by pigwiggle on Thu Jan 12, 2006 at 09:31:57 PM EST
    charlieisslow10-
    “Ya mean like their homicide rate is a fraction of what ours is per capita? Gee, thanks frozen caveman lawyer.”
    Exactly what does efficacy of deterrent have to do with what is and is not cruel and unusual? Anyway, would you suggest that England or Whales follow US sentencing guidelines for assault, robbery, or vehicle theft based on the fractional US rate? Or perhaps Canada should imitate US punishment of rape sentencing by the same token. Phat-
    “It's claptrap. It's terribly dishonest and it is being used to further an agenda.”
    Whose agenda? You can’t chide Judge Alito’s ‘isolationist’ view, as TL has, and simultaneously claim there is no issue of deference to foreign law or opinion. Either there is deference and Alito is isolationist or there is no deference and all on the court share Alito’s view. I think both sides are willing participants in this one.

    Re: Alito's Disturbing Response to Questions About (none / 0) (#34)
    by phat on Thu Jan 12, 2006 at 10:00:01 PM EST
    "I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said.
    There is an implication in this statement that someone has interpreted the Bill of Rights by taking a poll of the countries of the world. Scalia himself has said as much in a dissenting opinion. This simply has not happened. I'm not chiding Alito on his "isolationist" view. I chide him on his implication that there is debate in the Court itself concerning this. The Court takes an "isolationist" view. The court has used specific tests to guage current, popular standards of decency among Americans. Those tests included specific statutes written by a majority of the state legislatures of the US. The Roper v. Simmons case did mention other nations' laws, yes. But it by no means was decided based on those laws. Coburn brought this up as a way to make Alito look mainstream and look good among those who are outside the mainstream but misunderstand decisions like Roper v. Simmons. It has nothing to do with the actual case law involved. The fact that Alito didn't point this out tells me he didn't like Roper v. Simmons but didn't have the guts to argue the actual merits of the decision(s) in question. This idea that cases like Roper v. Simmons were decided by some extra-Constitutional means is a smokescreen. I would expect a judge who is nominated for the Supreme Court to actually argue the actual decision. He chose not to mention the specifics of the decision. It's disingenuous to argue Supreme Court decisions without actually talking about the foundations of those decisions. If you don't like the idea of "evolving standards of decency" just say so and take your lumps if most Americans think you're a loon. I'll give Bork credit for at least doing that. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#35)
    by phat on Thu Jan 12, 2006 at 10:06:30 PM EST
    Let me get more to the point. An honest man would have asked Senator Coburn why he would even mention this garbage. "Senator Coburn, why do you bring this up?" or "I would assume that the Senator is bringing up this point in reference to certain decisions that have been made recently that mention foreign law in the decision. I would have to say, that yes, the Supreme Court should not be using other nations' laws in interpreting the Bill of Rights. But, and I would like the Senator to correct me if my assumption is wrong, but cases like Roper v. Simmons were not decided in the context of other nations' laws." This is an answer I would respect. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#36)
    by phat on Thu Jan 12, 2006 at 10:17:43 PM EST
    Do me a favor and tell me what in my interpretation of the Constitution is phantasmagoric. phat

    Re: Alito's Disturbing Response to Questions About (none / 0) (#37)
    by pigwiggle on Fri Jan 13, 2006 at 07:54:53 AM EST
    charlieisatroll10-
    “Every bit as much as I need it to in order to make yet another one of your pathetic arguments look feeble and foolish.”
    OK, and that is what exactly? What are those bits that connect the efficacy and cruelty of a punishment that will make my argument look feeble? Don’t bother; it's become pretty clear what’s going on here. There is a name for folks like you who visit discussion boards and sling insults, self aggrandize (dismissed), and generally play at arguing without leaving anything with merit or substance. If you just want to bicker and trade insults over your tired canards there is a place for you at Democratic Underground. Have fun, I'm done feeding this troll.

    An originalist's understanding of "cruel and unusual punishment" is frozen in time; if a punishment wasn't unconstitutionally cruel in 1789, it cannot be today. Go ahead and flog; the old ways are still the best. Hmm, well, this turned out to be dead wrong, didn't it?