Yesterday's New York Times featured an op-ed column by Felix Rohatyn, a former U.S. ambassador to France, in which he talks about how our use of the death penalty affects how we're perceived by our European friends.
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.