The amendment strikes me as overly vague, so I would have voted against ratification.
The issue, however, is far from crazy.
In the article, the author takes issue with those skeptical of incorporating international law as a basis for interpreting the Constitution of the United States. If enough countries adopt a custom or practice, it has the effect of becoming, like a treaty whether the United States Senate has approved of it or not. The article points out that the practice of executing minors has been explicitly disapproved by all "civilized nations" and thus now constitutes "cruel and unusual punishment" and is therefore unconstitutional. I would not approve of executing minors, even particularly nasty ones who commit horrendous crimes, but just because other nations have sworn off the practice does not make it perforce binding on the people of the United States. The Founders would have found such reasoning odd had it been advanced at the time, and many would have found it sufficient reason to defeat ratification. The correct way to get rid of it is through legislative, or in extreme cases, adopting a constitutional amendment specifically outlawing the practice, despite whatever a Federal court might say.
This is the essence of the debate between nomocracy (rule-based government) versus teleocracy (government designed to achieve specific ends such as abolishing poverty, say, or building empire.
Dueling Teleocrats
Those who argue in favor of using international law in such cases might pause before embracing that as a principle. If enough countries around the world adopt a custom of, say, outlawing all homosexual activity (and there are a number of countries in Africa and the Muslim world, and even the "civilized" European country of Russia that have done exactly that), that, in my view, would not make such a custom binding on the United States, even if a judge should rule that it was. I would just look at such a ruling as a ruling in error waiting to be corrected. Should international custom be formed (with no comment or approval of the people of the United States) on something one finds unacceptable, (it matters not a whit what the issue is, just that one finds it unacceptable, such as, for the sake of argument, prohibition of homosexual acts), a teleocrat will find himself in a tough position. He could switch to being a nomocrat, and argue, “This custom is repugnant to Americans and has not been approved by the Senate of the United States,” but he may find himself surrounded by teleocrats who would argue, “Hey, this is the direction in which human society is moving. Get with the program.” Such anti-gay teleocrats will argue that “the United States went with the flow in prohibiting the execution of minors, so why the inconsistency now? You have already accepted the principle that international custom trumps the provisions of the United States Constitution.” Teleocracy is fine, as long as the
telos sought is in line with one’s own preferred
telos. When swimming against the tide, it is less comforting. And who knows which way the tide will evolve in the distant future?
