By Felix G. Rohatyh, United States ambassador to France from 1.997 to 2.001. (THE NEW YORK TIMES, 26/01/06)
DURING my four years as the American ambassador to France, I discovered that no single issue was viewed with as much hostility as our support for the death penalty. Outlawed by every member of the European Union, the death penalty was, and is, viewed in Europe as a throwback to the Middle Ages. When we require European support on security issues — Iran's nuclear program; the war in Iraq; North Korea's bomb; relations with China and Russia; the Middle East peace process — our job is made more difficult by the intensity of popular opposition in Europe to our policy.
Several years ago, Justice Anthony Kennedy spoke to the senior staff of our embassy in Paris on this issue to help them explain our position to a very hostile French audience. I was agreeably surprised when he indicated his belief that sooner or later, we would have to take into account the views of Europeans in determining what constitutes "cruel and unusual punishment."
Last March, the Supreme Court, in a 5 to 4 decision, abolished capital punishment for juvenile offenders, concluding that the death penalty for minors is indeed cruel and unusual punishment. "Our determination," Justice Kennedy wrote in the majority decision, "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."
While, unsurprisingly, Justices Antonin Scalia and Clarence Thomas dissented, it is notable that Justice Sandra Day O'Connor agreed with Justice Kennedy that international trends affect the meaning of "cruel and unusual punishment." Justices Scalia and Thomas, on the other hand, took the majority to task for taking "guidance from the views of foreign courts and legislators."
This attitude, reflecting a narrow and parochial view of the issue, is also found in Judge Samuel Alito's testimony before the Senate Judiciary Committee on his nomination to the Supreme Court: "I don't think it appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of countries of the world."
To the contrary, globalization has made it not only "appropriate or useful" but vital to look at foreign laws. It is in our interest to be aware of their impact whether they concern antitrust, food safety or the death penalty. Contempt for the laws of our allies is a major factor in our increasing isolation in the world; our present posture in Iraq reflects that reality. That is why is it is deeply troubling that the next member of the Supreme Court will most likely share Justice Scalia and Justice Thomas's point of view.
The Supreme Court is our most respected institution. Whether it is conservative or liberal is important; but it is even more important that it be enlightened. It must show understanding, if not respect, for other peoples' beliefs and laws, and occasionally be willing to support reasonable changes. Our Constitution, itself, was an extension of Enlightenment ideas that were incubated on the Continent. It certainly did not spring up in a vacuum, but was affected by strains of political thinking in Europe.
"That our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text," Justice John Paul Stevens wrote last year, concurring with Justice Kennedy. Taking the views of 450 million Europeans into account is not a sign of weakness on our part, nor is it a commitment to change our views. It is simply recognition that the laws of our most important allies, our biggest foreign investors, foreign employers, foreign customers and trading partners are worthy of our attention. That is a sign of enlighten- ment.