Tuesday, March 01, 2005

Kevin Drum might regard me as a wingnut for suggesting this but the trendy law-school advocacy for subjecting American Constitutional law to the inchoate, protean, ever-evolving, undefinable thing called " International Law" as the supreme legal standard is a grave threat to American sovereignty.

It's also an extremely undemocratic grab for arbitrary power by the legal class which already has far too much coupled with too little discernment of how that power should be used. While a seemingly arcane issue, admitting the authority of foreign court rulings amounts to a revolution in American jurisprudence and has enormous implications for democratic control over national policies and the limits of American sovereign rights. The Supreme Court simply does not have the Constitutional authority to make this kind of jurisdictional decision - though the Congress does through explicit clauses on Federal court jurisdiction and the Senate's role in advice and consent for treaties.

The Congress should circumscribe this practice before it puts down roots and grows into a weed we will all live to regret.

From the WSJ:

"Rule of (International) Law Can foreign courts tell American ones how to do their job? :

One of the more dangerous fads in Supreme Court jurisprudence of late is something called "international law," in which American laws are measured not just against the Constitution but against the laws of foreign countries. The purpose is to put the U.S. law in what supporters delicately call a "global context." What they really mean is that they can't persuade enough Americans of their views to change U.S. law so they want to persuade judges to do it for them.

Among the most ardent supporters of this view are opponents (here and abroad) of the death penalty, who argue that capital punishment violates international norms. In the juvenile death-penalty case it heard last fall, the Supreme Court took the unusual step of permitting friend-of-the-court briefs from 48 foreign governments and such renowned jurists as Mikhail Gorbachev and the Dalai Lama. (Naturally, they all opposed it.)

Which brings us to Medellin v. Dretke, a death penalty-related case that the Supreme Court will hear next month and which has the potential to catapult the concept of international law to a new level of acceptability in American courts. At issue is whether an order issued by the International Court of Justice at The Hague must be enforced by a court in Texas. That is, the "supreme" court of the United States would reside in the Netherlands, not the District of Columbia

José Medellin is a Mexican citizen on death row in Texas. He was convicted in state court in 1994 of murdering two teenage girls and sentenced to death. The Texas Court of Criminal Appeals upheld his conviction and sentence in 1997.

A few months later the Mexican consular authorities in the U.S. learned about Medellin's plight for the first time. They eventually took his case to the International Court of Justice, arguing that under the Vienna Convention they should have been notified when Medellin was first arrested. The ICJ ruled in Mexico's favor and ordered U.S. state courts to review the death sentences of Medellin and 50 other Mexican citizens held on death row in this country.

At first blush, the ICJ ruling seems entirely reasonable. The U.S. is a signatory to the Vienna Convention, which everyone agrees serves American interests; if an American citizen is arrested abroad, the U.S. wants to know about it. Nor does the U.S. dispute the facts of the case. It has apologized, promises to do a better job of keeping its treaty commitment, and has launched an education campaign on the Vienna Convention for state law-enforcement authorities.

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. "

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.
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.
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
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!

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.

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

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
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