“Our Constitution’s system of checks and balances between the three branches of government has been an illusion for decades. The reality is an increasingly brazen judicial supremacy. Judges dictate fundamental social policy, impose taxes, manage schools and prisons, and orchestrate elections. In short, Americans have exchanged the rule of law for the rule of judges. . . . Without any constitutional mandate, judges have banned the public recognition of God, redefined marriage, undermined national sovereignty, released a flood of pornography, institutionalized feminist dogma, and handicapped law enforcement.

“Yet, in spite of everything . . . the Constitution is on democracy’s side. It provides all the tools necessary – if only we’ll use them – to rescue America from the tyranny of judges.” –Phyllis Schlafly, in The Supremacists: The Tyranny of Judges -- and How to Stop It

 In the summer of 2003, the U.S. Supreme Court, in one of its most egregious bursts of liberal social activism, rendered a decision which overturned Texas law, usurped the role of lawmakers, and established a far-reaching precedent that potentially will undermine any law based on moral choices, including incest and polygamy.

In Lawrence v. Texas, the Supreme Court rejected Texas’ ban on same-sex sodomy, and in the eyes of many in the gay community, established a “constitutional right” to gay sex. Until the 1960s, every state prohibited sodomy, but Texas was one of just 13 states in which a law governing such conduct still existed, and one of four that banned same-sex sodomy only. Those laws, rarely enforced, carry penalties ranging from fines to 10 years in prison.

Critics differ on the legitimacy of the Texas sodomy law, but ruling that the act of homosexual sodomy is protected as a fundamental right requires that society cast aside the moral teachings of thousands of years.

Roper V. Simmons

Now, the U.S. Supreme Court has struck again, overturning state laws that apply the death sentence to 16- and 17-year-old murderers. The 5-4 decision this week in Roper v. Simmons overturns laws in 19 states and throws out the death sentences of 72 murderers who were under 18 when they committed their crimes.

The crime at the center of Roper v. Simmons is described by Justice Kennedy in writing the majority opinion:

At the age of 17, when he was still a junior in high school, Christopher Simmons . . . committed murder . . . There is little doubt that Simmons was the instigator of the crime. Before its commission, Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan with his friends . . . Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors.

 Simmons did just that: He broke into the victim’s home, wrapped her in duct tape and tied her hands and legs together with electrical wire. He then drove her to a river bridge and threw her into the water where she drowned.

The question the Supreme Court had to decide was whether the death penalty for the perpetrator of the crime constituted a case of “cruel and unusual punishment,” in violation of the 8 th Amendment of the U.S. Constitution. The court seemed oblivious to the nature of the rime and whether that constituted cruelty to an unfortunate, helpless victim. The Court seemingly concerned itself only with whether society has the right to execute a strapping 17-year-old murderer for the cold-hearted, premeditated execution of his victim.

An Imagined “Consensus” and Selective “Evidence”

The court majority based its decision, in part, on the fact that, of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. That’s 47%--a minority—of relevant states. The dozen states that have no death penalty offer no special immunity for juveniles, and all of those 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses. Again, that is a minority of the states in which capital punishment is permitted, and it does not constitute the “consensus” upon which the Court based its argument.

The fact that the 5-person majority on the Court cited “consensus” as a basis for their decision does not hold up well in view of the court’s own precedents. In Roe v. Wade (to cite just one case), all 50 states had some prohibition against abortion on their books. But the Court conveniently ignored that fact.

Justice Scalia wrote in his Roper v. Simmons dissent, “Words have no meaning if the views of less than 50 percent of death penalty states can constitute a national consensus. Our previous cases have required overwhelming opposition [emphasis added] to a challenged practice, generally over a long period of time.” In this case, a majority of relevant states approve the practice.

The justices, arguing a weak set of facts regarding a national consensus, offered the lame assertion that “In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”

Scalia, in a statement loaded with sarcasm, writes, “Juries cannot be trusted with the delicate task of weighing a defendant’s youth along with other mitigating factors.” If we accept this (as Justice Scalia obviously does not), then the whole foundation of our capital sentencing system collapses.

Equally disgusting is the fact that the Roper majority relies selectively on scientific and sociological “evidence,” citing the American Psychological Association’s claim that killers under the age of 18 are incapable of making appropriate moral judgments. This is the same bunch that has told the Court in the past that teenage girls are mature enough to decide whether to have an abortion without parental consent.

The Globalists’ End Run

An editorial in the Wall Street Opinion Journal zeroes in on the crux of the matter: “The most troubling feature of Roper is that it extends the High Court’s recent habit of invoking foreign opinion in order to overrule American laws.”

It is this “global twist” that betrays the whole outrageous decision for what it really is. Recognizing, apparently, that their 8 th Amendment argument was weak, the Court attempted to shore up its argument with references to a panoply of international treaties and foreign laws, claiming, “the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

 Justice Kennedy states his opinion that “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.”

Proper that we acknowledge international opinion? Says who? Five people in black robes? Apparently, these liberal justices need to be loudly reminded that it is the U.S. Constitution that is the final arbiter of U.S. law—not five—or even nine—people in black robes, comfortably ensconced in the ivory tower environs of the Supreme Court, isolated by their lifetime tenure from the will of the American people.

Our Supreme Court justices are beginning to manifest an alarming fascination with foreign legal systems. Sandra Day O’Connor told a Georgetown University audience last October that “international law is a help in our search for a more peaceful world.”

That is garbage.

Importing international law into the United States has nothing to do with the noble-sounding aim of preventing war. The reason our more liberal judges find it so fascinating is that they wish to change our Constitution without having to get approval from the American people through the amendment process.

Phyllis Schlafly reported last November (“Whom Is The Supreme Court Listening To?”) that the Supreme Court accepted amicus briefs from Mikhail Gorbachev and from 48 foreign countries for consideration in Roper v. Simmons. However, it is interesting to note that the Court is very selective about which countries they cite, since executions are common in many countries. (It is also interesting that they fail to cite international laws on abortion when they strike down state and congressional bans on partial-birth abortion. Could it be because abortion laws around the world are much stricter than our own?)

Further demonstrating the Court’s fascination with (and heavy reliance on) international law is their ruling in Lawrence v. Texas, which made references to the European Court of Human Rights and other foreign sources as examples of “emerging awareness” about sex. But that opinion, written by Justice Kennedy, conveniently omitted any reference to countries such as India, where homosexual behavior is a crime meriting imprisonment.

Six of the nine Supreme Court justices are now on record using references to foreign law in their opinions. In a speech last year, Justice Ruth Bader Ginsburg told the American Constitution Society, “Your perspective on constitutional law should encompass the world.” (Schlafly, “Whom Is the Supreme Court Listening To?”)

Three of our Supreme Court justices disagree with Ginsburg’s statement, and we believe most Americans would also disagree.

Reminder to the Court

Section 3331 of Title 5 of the U.S. Code requires high-ranking officers, including Supreme Court justices, to take the following oath:

“I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Violation of this oath should be an impeachable offense.

It is time to let the justices, and all future judicial nominees, know that we believe it is their duty to base their decisions on the U.S. Constitution; and furthermore, we believe it is a violation of their oath of office to base decisions on foreign decisions or practices.

The gravest threat to American democracy is the supreme power of judges over political, social, and economic policy. Invoking international “opinion” is a convenient rationale that these liberal justices have used once again (Roper v. Simmons) to impose their own moral values on the citizens of this country. Contrary to what the court majority stated in their mealy-mouthed conclusion, it is obvious that the liberal five did not simply “acknowledge” world opinion, but in fact, relied on it to an alarming degree in cobbling together this most recent affront to the sense of justice that is so crucial to upholding a system of law and order in a democratic republic.

Unelected judges will essentially redefine our society against the will of the people — unless the people rise up and stop them.

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Action: To learn what you can do to keep judges from legislating from the bench, go to www.eagleforum.org . You will find information on ordering Phyllis Schlafly’s book, The Supremacists: The Tyranny of Judges and How to Stop It. You will also find audio links to two interviews between Phyllis Schlafly and Dr. James Dobson on the subject of judicial tyranny and how to stop it.