Secular Courts and the New Medievalism

Todays’ NY Times has an intriguing story about a Colorado jury’s decision to impose the death penalty on a murderer that the courts overturned. The higher courts overturned the conviction because the jury relied on the Bible to draw its conclusion. A straightforward application of the First Amendment’s prohibition of establishment?

Not so fast.

The judge instructed the jury that, in applying state law that allows but does not mandate the death penalty, the jury members should:

must make an “individual moral assessment,” in deciding whether Mr. Harlan should live.

This was not a matter of jurors deciding to replace state law with the Bible. Rather, they were using the Bible to help them to apply state law. Apparently, they decided that Old Testament instructions to take an eye for an eye more compelling than New Testament instructions to turn the other cheek. The article points out that in so doing, and in following the judge’s instructions, they were simply practicing the well-established common law principle of relying on moral codes to determine the meaning of laws:

Other legal experts say the Colorado decision touches on an issue that courts do not like to talk about: that jurors, under traditions dating to the days of English common law, can consider higher authority all they want, and can convict or acquit using whatever internal thoughts and discussions they consider appropriate.

This case is remarkable because the US Supreme Court itself recently relied on a separate moral and legal code to throw out capital punishment for minors. Instead of relying on their own Constitution or on precedent, not to mention the Bible, the USSC instead relied on European high court decisions to reject capital punishment.

The meaning of this transformation of the “higher law tradition” of American constitutionalism is this. In times past “higher law” referred to natural law. In the older British common law it might have referred to ancient customs or even principles found in canon law. However, whereas ancient judges and church canon lawyers articulated the “higher law” in medieval times, today it’s the cosmopolitan elite of jurists, media, and academics who dictate the rules. Like the clerics of old, these new clerics might have an institutional base, but lack a territorial constituency that can keep it responsible. This international court party wields power irresponsibly, having no allegiance to nation state and checked by few powers. They produce only an ultra-moralistic tone for politics that does no one any good (and see here).

More at Claremont, including a link to the court’s judgment. Plus a good critique of the majority decision over at Mirror of Justice.

UPDATE: Peter Berkowitz reviews several books about international law that are supportive of this new medievalism.