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.