What Role Should International Law Play in the U.S. Legal System?
In 1997, a Mexican national named Jose Ernesto Medellin was sentenced to death for raping and murdering two teenage girls in Texas. In 2004, the International Court of Justice ruled that he was entitled to appellate review of his sentence, since the arresting officers had not informed him of his right to seek assistance from the Mexican consulate prior to trial, as prescribed by a treaty ratified by Congress in 1963. In 2008, amid fierce controversy, the U.S. Supreme Court declared that the international ruling had no weight. Medellin subsequently was executed.
Julian Ku and I argue in Taming Globalization that Medellin case only hints at the legal complications that will embroil the United States Constitution in the twenty-first century. Like Medellin, tens of millions of foreign citizens live in the United States; and like the International Court of Justice, dozens of international institutions cast a legal net across the globe, from border commissions to the World Trade Organization. This presents an unavoidable challenge to American constitutional law, particularly the separation of powers between the branches of federal government and between Washington and the states. To reconcile the demands of globalization with a traditional, formal constitutional structure we must re-conceptualize the Constitution, as Americans did in the early twentieth century, when faced with nationalization. We identify three "mediating devices" we must embrace: non-self-execution of treaties, recognition of the President's power to terminate international agreements and interpret international law, and a reliance on state implementation of international law and agreements. These devices will help us avoid constitutional difficulties while still gaining the benefits of international cooperation.
I discussed the thesis of Taming Globalization in greater depth at the San Francisco Commonwealth Club and CSpan's BookTV recorded it here.
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Apr '11
Re: What Role Should International Law Play in the U.S. Legal System?
I would add that Congress should repeal, reform, or at the very least clarify the Alien Tort Claims Act. I don't believe that they'll imprison attorneys who use frivolous claims under it to shake down companies doing innocent business in the Third World, but that'd be on my wish list, too. I'd settle for disbarring them, perhaps with a substantial fine.
Apr '12
Re: What Role Should International Law Play in the U.S. Legal System?
Every one of these international bodies consist of officials that have no accountability to the people of the United States. Consequently, it is impossible to claim they have the consent of the governed. Therefore, any American politician or judge that uses international law to even slightly influence a decision is violating the spirit of the constitution and DOI.
I disagree with Mr. Yoo that globalization places any legitimate demands on the United States, outside of any laws passed by our own legislature in response to globalization. Giving even the slightest authority to these bodies sets a terrible precedent.
Edited on April 17, 2012 at 1:20amMar '11
Re: What Role Should International Law Play in the U.S. Legal System?
"What Role Should International Law Play in the U.S. Legal System?
Absolutely nothing. The Constitution is the highest law of the land. Period and end of discussion.
Apr '11
Re: What Role Should International Law Play in the U.S. Legal System?
Douglas: "What Role Should International Law Play in the U.S. Legal System?
Absolutely nothing. The Constitution is the highest law of the land. Period and end of discussion. · 1 minute ago
Absolutely nothing seems a little strong, and not at all the position that the Constitution takes. I agree that the current case law is too expansive, and that the academy is worse, but conservatives should not respond with further wrongs in the hope of arriving at a right.
Jan '11
Re: What Role Should International Law Play in the U.S. Legal System?
Douglas: "What Role Should International Law Play in the U.S. Legal System?
Absolutely nothing. The Constitution is the highest law of the land. Period and end of discussion. · 11 minutes ago
"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."
The problems arise when a provision of a treaty contradicts a law passed by Congress or the Constitution.
Mar '11
Re: What Role Should International Law Play in the U.S. Legal System?
James Of England
Douglas: "What Role Should International Law Play in the U.S. Legal System?
Absolutely nothing. The Constitution is the highest law of the land. Period and end of discussion. · 1 minute ago
Absolutely nothing seems a little strong, and not at all the position that the Constitution takes. I agree that the current case law is too expansive, and that the academy is worse, but conservatives should not respond with further wrongs in the hope of arriving at a right. · 5 minutes ago
What law is higher than the Constitution? God's law, obviously, but it has no force in the court system. The Constitution HAS to be the last word in our laws. To allow any foreign or international law to have force in domestic courts is to surrender sovereignty. Every year it seems events prove the Founders wisdom on maintaining our independence, and the folly of surrendering that independence to some international authority or another. UN dictates do not have the consent of the governed in the United States.
Mar '11
Re: What Role Should International Law Play in the U.S. Legal System?
Klaatu
The problems arise when a provision of a treaty contradicts a law passed by Congress or the Constitution. · 6 minutes ago
In that case, it's the duty of SCOTUS to strike such treaties down when challenged. The Senate could ratify and the President could sign a treaty that bans newspapers tomorrow. But SCOTUS would have a responsibility to strike it down. The Constitution still has legal supremacy.
Mar '11
Re: What Role Should International Law Play in the U.S. Legal System?
I saw the C-Span Book TV program and was impressed!
Having seen the UK in the process of losing it's laws to the EU and Sharia, I hope the US retains the Supreme Court as being Supreme.
Needless to say, Mr Obama and the Democrats would prefer otherwise.
Apr '11
Re: What Role Should International Law Play in the U.S. Legal System?
Douglas
What law is higher than the Constitution? Gods law, obviously, but it has no force in the court system. The Constitution HAS to be the last word in our laws. To allow any foreign or international law to have force in domestic courts is to surrender sovereignty. Every year it seems events prove the Founders wisdom on maintaining our independence, and the folly of surrendering that independence to some international authority or another. UN dictates do not have the consent of the governed in the United States. ·
Of course the Constitution is the final word, but the Constitution is not hostile to international law; treaties and the law of nations both find themselves in the text. The Vienna Convention that the ICJ was ruling on in the case Prof. Yoo refers to was properly ratified by the 2/3 of the Senate and the President the Constitution requires.
Working out what the role of treaties America signed up to under the Constitution is not as simple as ignoring them because we have the Constitution instead. Treaties, like the federal statutes that the Constitution's supremacy clause considers their equal, are inferior to the Constitution, but are not without power.
Apr '11
Re: What Role Should International Law Play in the U.S. Legal System?
Douglas
Klaatu
The problems arise when a provision of a treaty contradicts a law passed by Congress or the Constitution. · 6 minutes ago
In that case, it's the duty of SCOTUS to strike such treaties down when challenged. The Senate could ratify and the President could sign a treaty that bans newspapers tomorrow. But SCOTUS would have a responsibility to strike it down. The Constitution still has legal supremacy. · 58 minutes ago
The Constitution has legal supremacy over treaties. Laws passed by Congress do not; they are equal and the last in time rule applies.
David Williamson: I saw the C-Span Book TV program and was impressed!
Having seen the UK in the process of losing it's laws to the EU and Sharia, I hope the US retains the Supreme Court as being Supreme.
Needless to say, Mr Obama and the Democrats would prefer otherwise. · 44 minutes ago
EU law isn't really international law; it's federal law. Sharia isn't generally a problem as international law in the UK, either; it's a religious law issue or some deranged domestic law multicultural effort.
Oct '11
Re: What Role Should International Law Play in the U.S. Legal System?
"Re-conceptualize." The Constitution is the foundation of the success of the U.S. Our failings are in degree to our departure from it. The Constitution is necessary and sufficient: it is all the law we require, and we require that it not be diluted with demonstrably lesser legal frameworks.
What is it with lawyers? Always working to make more law. Sir, I suggest you re-conceptualize the role of lawyers in our Republic.
Apr '11
Re: What Role Should International Law Play in the U.S. Legal System?
Barfly: "Re-conceptualize." The Constitution is the foundation of the success of the U.S. Our failings are in degree to our departure from it. The Constitution is necessary and sufficient: it is all the law we require, and we require that it not be diluted with demonstrably lesser legal frameworks.
What is it with lawyers? Always working to make more law. Sir, I suggest you re-conceptualize the role of lawyers in our Republic. · 6 minutes ago
The Constitution is all the law we require? You don't think that criminalizing murder is a useful role of government?
Apr '12
Re: What Role Should International Law Play in the U.S. Legal System?
I was hoping for some clarification- other posters seem to be implying that Mr. Yoo is referring to deals made in treaties, wherein we allow for international law to apply within the US.
I re-read Mr. Yoo's article believing I had missed something, but the only implication that international laws have any legitimate force in the US is the fact the Supreme Court heard the case in the first place. In the the second paragraph, the article implies these laws are only followed voluntarily with the phrase "demands of globalization."
I would appreciate it if Mr. Yoo or a more enlightened poster could offer some clarification. Thanks.