Capital Punishment

As everyone knows, the Supreme Court recently decided that people who become homicidal maniacs before their 18th birthday cannot be executed. The case was Roper v. Simmons. (Justice Scalia's dissent should be required reading for anyone who wants to understand what the relationship between the U.S. Constitution and the Supreme Court should be.)

The merits of the decision have been much discussed. One point that was disturbing to me, though, was the Court's willingness to rely on the laws of other countries as a basis for policy in the U.S.

There is a growing trend for our courts to rely on international law, philosophical articles, etc., as a basis for our law. I thought trial courts were supposed to rely on evidence, and appellate courts were supposed to rely on law.

Think this is just some obscure Washington DC issue? Think again. Our own Supreme Court, in Armstrong v. State, (the case that struck down our law prohibiting a physician assistant-certified from performing abortions), relied extensively on a 'scholarly' brief by one Ronald Dworkin. Dworkin is a left-wing NYU law professor who advocates assisted suicide.

Now, you might feel that assisted suicide is a good thing. But if our Court is relying on the opinion of some philosophers from back east, are they really "interpreting" our Montana Constitution, or are they making policy. You tell me. I wonder what Justice Scalia would say?