Guess what folks? There is a Constitution after all!
International Law, and Order
March 26, 2008; Page A14
Everyone waxing outraged about the big Medellín decision yesterday is focusing on the death penalty, but the Supreme Court did something else entirely: It insulated American law from the international variety. And this modest and limited ruling should help restore those two qualities to U.S. courts, which is no doubt one of the reasons the Roberts Court’s political opponents are so livid.
Though the case became a global cause célèbre, its sordid origins trace to 1993, when José Medellín, a Mexican national, murdered two Houston teenagers. He was sentenced to death by a Texas jury, but his lawyers argued on appeal that he hadn’t had access to Mexico’s consulate before he confessed to his crimes.
This was a violation of the 1963 Vienna Convention, which holds that diplomats are supposed to be notified when their nationals are arrested. In response, the U.S. government took steps to ensure states better comply in the future, both to fulfill its treaty obligations and serve the reciprocal interests of U.S. citizens detained abroad.
But Mexican authorities made the case a referendum on capital punishment and international legal norms, ultimately suing the U.S. in the International Court of Justice at The Hague. The ICJ ruled in Mexico’s favor, ordering states to give Medellín and some 51 other nationals new hearings. The question before the Supreme Court was whether such international dictates must be enforced by sovereign state courts. An affirmative answer might have gone a long way toward validating the expansive claims of liberal legal theorists that U.S. courts take instruction from the U.N., among other moral oases.
Chief Justice John Roberts, writing for the 6-3 majority, ruled that the ICJ finding was not binding because the Vienna Convention is an understanding between governments, a diplomatic compact. It was never intended to automatically create new individual rights enforceable domestically by international bodies. Texas’s violation was of diplomatic protocols, and calls for a diplomatic remedy.
Treaty obligations, in other words, do not necessarily take on the force of law domestically. Rather, Congress must enact legislation for whatever provisions — such as consular notification — that it wants to make the formal law of the land. This distinction matters because it establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers. As Justice Roberts points out, the courts must leave to the political branches “the primary role in deciding when and how international agreements will be enforced.”
Medellín v. Texas also swatted away a claim of Presidential power. While the Bush Administration did not agree with Mexico’s choice of venue, or the intrusion on U.S. sovereignty, it attempted to allay the diplomatic ruckus by directing states to comply with the ICJ ruling in a 2005 executive order. The Court ruled that the President’s power, too, was limited by the Constitution. The authority to make treaty commitments did not extend to unilaterally asserting new state responsibilities or legal duties. Again, the executive could only make new laws in conjunction with the legislature.
Devotees of using foreign law to overrule American politicians will squawk. But the Medellín majority has delivered a victory for legal modesty and the U.S. Constitution
God Bless those Black Crows!