The danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.
The U.S. brief in Medellin is due Monday, and we hear there’s a battle royal between the State Department, which doesn’t want to upset Europeans who support the ICJ (and hate the death penalty), and the Solicitor General’s office, which understands the legal principles at stake. At the ICJ, the Bush Administration argued that Mexico’s demand would be an “unwarranted intrusion” on U.S. sovereignty. That’s still the correct position. “
Page 2 of 2 | Previous page
Dan tdaxp:
March 1st, 2005 at 7:35 pm
Mark,
The Supreme Court has ultimate authority for treaties
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;”
And treaties are powerful
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
I’m not sure which treaties are being discussed, or which of those we are a party to. But treaties are described as part of “the supreme Law of the Land,” which is pretty weighty.
The Warren Court recklessly attacked state and federal laws, and we are still living with the consequences. “International Law” may provide a new avenue for judicial activism, but Courts interpreting laws in light of treaties is not at all revolutionary or by itself dangerous.
mark:
March 1st, 2005 at 7:50 pm
No, but that’s not what the Court is doing in this instance. A treaty has text and the Senate debate leaves a record of legislative intent. They are looking at rulings from, say, the Supreme Court of India, the ICJ, and various bodies as one big grab bag of all-purpose precedents precedents. That’s new.
International Law is far, far, wider a field than just international conventions to which the U.S. is a signatory. This is an issue of jurisdiction, the parameters of which is a legislative prerogative.
mark:
March 1st, 2005 at 8:24 pm
Article III. Section 2. Clause 2.
On SCOTUS jurisdiction:
“…with such exceptions, and under such regulations as the Congress shall make”
Keeping the Constitution and actual treaties – as opposed to foreign courts and IL theories – as the standard is hardly a radical proposition. The burden of proof in terms of this issue is on those advocating the innovation to previous jurisprudence
Dan tdaxp:
March 1st, 2005 at 9:12 pm
Related to your concerns, Opinio Juris notes that in the juvenile death penalty decision, the Supreme Court acted despite specific reservations in the treaty (http://lawofnations.blogspot.com/2005/03/international-law-and-juvenile-death.html). I haven’t been following the specific cases.
I /believe/ that the “exceptions and regulations” refer to the structure of the inferior courts (the appeals process, etc). Reading that clause too strongly would allow the Congress to completely circumvent the Court.
More generally…
I’m not a fan of innovatice jurisprudence. The Court has used “internationa law” as a cloak to makings its own laws, especially as the pseudo-social-sciences it once relied on are ever more discredited.
As to the middle, where treaties are vague… that’s what makes law fun!
Dan tdaxp:
March 2nd, 2005 at 1:56 pm
Mark,
Powerline says it better than I could
In my view, the reliance of foreign law and practice is a symptom of the Court’s problem, not the problem itself. The Court has appropriated from the American people the role of social arbiter. Thus, it strikes down longstanding policies and practices adopted through the democratic process on the grounds that five or more Justices personally don’t approve. This creates a question of legitimacy which causes the Justices to scrounge for support. Since the Justices preferences often don’t correspond to the preferences of majorities here, they naturally look to Europe. They lack the political savvy to realize that doing so only makes their work seem even less legitimate.
http://powerlineblog.com/archives/2005_03.php#009717
Anonymous:
March 5th, 2005 at 6:25 am
This is insane. There is so much variance among legal precendents in different countries all over the world that you can basically cherry-pick from whatever country you want to support whatever position you please. It’s a stealth way of granting some thin veneer of legal justification to what amounts to “anything goes”. I mean holy hell, it should be obvious to anyone who grants it a moment’s thought that madness lay that way.
And people look at *me* funny when I say I’d be overjoyed to have 9 Antonin Scalias on the SC. It’s preferable to this nonsense!
— Matt McIntosh
Dan tdaxp:
March 28th, 2005 at 10:48 pm
Mark,
You were right. I missed the point.
I’ve adjusted my views. I did not see the significance of the Court’s actions.
Thanks for this great blog!
-Dan tdaxp