I have dealt with this in past posts so a search will give you more extensive information. The case I remember is the “packet havana” so a google search should give you the particulars. A couple of relevant links:
http://www.law.northwestern.edu/depts/clinic/ihr/docs/1mon.pdf
http://www.walter.gehr.net/default.html
To clarify this, since it was questioned… in many civil law (European) countries treaties become law once they are signed by the government. This is the opposite to countries like the US and most common law[sup]1[/sup] where the houses of government must ratify the treaty, and then give enactment to it.
As for the OP, I have read several American intellectual property cases where the SCOTUS has given consideration to the approach of other courts, particularly the esteemed House of Lords in the UK.
[sup]1[/sup] Despite the fact that the US has “common law”, in my experience it is not included amongst the “common law” countries consisting of the UK’s other former colonial possessions.
sailor:
Your links did not support the claim that “The US Supreme Court has held that the US government is bound by the whole body of international law, not only treaties.” A search of U.S. Supreme Court case law reveals no instance of the phrase “packet havana.” I have no desire to make the hamsters scream through your entire posting history. And basically, I’m completely positive that you are wrong. So could you please direct me to the case or cases that say the government is bound by international law even if the government has not assented to it through treaty or otherwise? Thank you very much.
This was directed at sailor, and IANA US consitutional lawyer, but doesn’t the US Constitution or the legislation establishing the SCOTUS specifically prevent the US from being compulsorily bound by transnational or international laws? I seem to recall this because this was the main legal (as opposed to political/practical) issue with the US and the International Criminal Court, wasn’t it?
the Supreme Court held in The Paquete Habana 175 U.S. 677 (1900) that customary international law is part of U.S. law
The SCOTUS said to the US government it was bound by international law and could not seize that vessel which was protected by international custom from time immemorial.
You know, I am not a constitutional lawyer either but if you are going to discuss the Constitution you might as well read it. It’s not like it’s secret or anything. The constitution says quite the opposite.
In other words, international treaties supersede state laws and have the same standing as federal laws.
“Resort” is different to “bound”. The court may resort to foreign laws and reasoning for persuasive principles. In common law countries, for example, English House of Lords decisions are “very persuasive”, but are not binding law.
I see what you’re getting at, but isn’t “customary international law” distinguishable from “treaty-made international law”?
I’m very rusty on this as I don’t encounter public international law everyday, but isn’t treaty-made law non-binding international law until it reaches a certain number of ratifying countries (a sort of “momentum”) and becomes customary international law which purports to be binding on all countries irrespective of whether a country has ratified it or not?
The Supreme Court most assuredly did not hold that “that the US government is bound by the whole body of international law, not only treaties” in the *Paquete Habana* case. The Court did nothing more than apply international law to an incident that occurred overseas, to wit, the capture of two Spanish ships by the Navy during the Spanish-American War. That’s a long way away from saying that the US is “bound” by international law, as any cursory examination of other US Supreme Court cases would make abundantly clear. (For instance, I’m quite fond of that case a couple years ago where the Supremes told the International Court of Justice to go get stuffed, because Virginia could damn well execute foreign citizens if it wanted to.
Seriously, sailor, you’ve done nothing more than latch onto a single sentence in a century-old opinion and declare that it represents the state of the law, when in fact it does not such thing.
Thanks for the clarification. That’s what I like about these boards - helpful, friendly elucidation on exotic topics which I wouldn’t normally stretch myself to find out about.
Well, we shall have to agree to disagree because to me the phrase of the SCOTUS
is quite clear.
Um no, you are totally misrepresenting that case which we have also discussed in depth here in the SDMB. It was a complex case of international treaty law and I do not rememebr every detail now but I rememebr many people disagreed with the SCOTUS, including Madelaine Albright who was Secretary of State at the time. She pointed out that if other nations felt the USA would not respect the treaties to which it was a signatory this would make it doubly difficult to protect American citizens abroad as other countries would feel entitled to do the same. At any rate, there is no question that the US government is bound by the treaties the US ratifies and the SCOTUS has never declared otherwise. that case hinged on some legal technicality about whether the consular access which the foreign national had been denied in violation of the treaty would have had any effect on the outcome of the case. It does not support your position at all.
I picked up on this one late. Getting back to the OP question, SDC DID NOT say International Law should replace the constitution. Here is a report of the speech in question:
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=35367
I couldn’t find the whole speech either, but she said that the US should consider International Law in interpretation of US Law, which is probably controversal enough in itself.
“International Law” applies only outside of soveriegn nations and to the extent nations have agreed to be governed by said laws. Obviously, within the US, an International Law, even if sanctioned by state or Federal law, would not be valid if found to be unconstitutional. Apparently, O’Connor and Breyer feel that some creativity in interpretation of the Constitution may be appropriate.
>> she said that the US should consider International Law in interpretation of US Law, which is probably controversal enough in itself
Well, it may be controversial but I see nothing wrong with it. Note that the operative words are “interpretation of US law”. Tusculan put it very well
I cannot see how there is anything wrong with taking into consideration what other countries of similar culture believe. I think this is a very good thing.
Its a common practice, although I have seen the caveat that the law will only be persuasive if the reasoning is apparent. An example of this is where a trade mark might have been registered in one jurisdiction, but a court in another jurisdiction will not allow it to be registered in the absence of a rationale for the registration in the first jurisdiction (the case on this is called St Trudo’s Mark).
I agree with those emphasizing the difference between being bound by the decisions of foreign courts and merely resorting to them for guidance or persausive value.
I believe O’Connor was in the majority who found a US Constitutional protection for homosexuals in our Constitution. Sorry I don’t have the cite but it was decided in the summer of 2003. This decision was controversial for a number of reasons. The one that is relevant here is that the court cited the law or decisions of foreign countries. I think this is a mistake because what a foreign country does really has no bearing on what our framers intended when they drafted teh Constitution. In other words, did the framers intend to create a fundamental right to privacy so large that it would supercede a State’s ability to criminalize homosexual acts? I don’t see how foreign law is relevant to this question since it is specific to our Constitution. And even if it was, I think it reliance on foreign law should be avoided, rather than encouraged or cited wiht approval, since doing so interferes or frustrates our citizens role in the political process. This is heading towards a debate. I think the issue is to what extent if any should a US court be bound by or cite approvingly foreign law. O’Connor apparently thinks this is good; I disagree with some narrow exceptions for treaties, etc. Another debate is whether the SCOTUS should be limited to merely interpreting the Constitution or whether they should act as a type of super-legislature, which is a frequent charge of their critics, especially on the right. I think that debate is relevant here. Reasonable people may differ on both issues.
>> I think that debate is relevant here. Reasonable people may differ on both issues.
True. Very true.
take for instance the prohibition against “cruel and unusual punishments”. The writers of the constitution did not intend to prohibit punishments which were cruel and unsual to them but to society at each point in time. Some punishment may be acceptable in the 18th century and not today because society evolves. So the SCOTUS is faced with the decision of whether a certain punishment is “cruel and/or unsual”. It seems perfectly valid to me to consider, among many other factors, what other nations of similar culture consider. Not as a sole consideration but in the context of the rest. One more argument to be given consideration.
i think this is valid for every country if we want to develop some peaceful understanding. We say it to China when we preach the notion of human rights. We say that no matter what their internal laws may say, there is an international consensus which condemns certain human rights abuses and we encourage China to abide by this if only to better get along with the nations which have those values. I think it is right for China and for every other country to consider what the rest of the world thinks. It can only be a good thing.
Sailor, aren’t you simply stating the other side of the debate? To you, its “good” because the Constitution shoudl be interpreted as a “living document”. A strict constructionists would call that being a super-legislature, and would argue that if the concept of cruel and unusual punishment became outdated, the solution is to amend the Constitution rather than have the SCOTUS “create” law the way a legislature would.
Your example is not directly on point, because every state clearly agreed to not impose cruel and unusual punishment when they ratified the Constitution. When you talk about a right that is implied in the Constitution, such as abortion or homosexuality, your example is less close becuase, IMHO, you have to ask yourself whether the states ratifying the Constitution were agreeing to such limits. If you conclude that the States were reserving the right right to prohibit abortion, homosexuality, or other implied fundamental rights, then you basically are ignoring the Tenth Amendment and the whole concept of separation of powers in the Constitution. IMHO, you have to ask what the framers intended at the time of ratification, not now. In other words, if a State ratifying the constitution was not agreeing to cede power to regulate these activities, then a modern interpretation of the constitution that amounts to a ban on a state to regulate such activities is effectively a legislative action by the judiciary.
[QUOTE]
*Originally posted by LemonThrower *
Which is all anyone in this argument has been saying.
Good Heavens! You mean Jefferson was wrong in writing “We hold these truths to be self-evident, that all heterosexual men are created equal, that they are endowed by their creator with certain inalienable rights…”? :eek:
In view of the fact that I gave the case name and discussed the fact that it did indeed cite foreign law above in this thread, I’d have to agree the point is relevant.
First, “original intent” is one of three main schools of constitutional interpretation, and Mr. Justice Scalia would tell you that what the FF [intended may or may not have bearing – but what matters is what they wrote. Second, Mr. Justice Kennedy in the majority decision carefully avoided any invocation of the “right to privacy” of the Warren and Burge courts, and instead found a quite distinct though similar right enshrined in the Due Process clause.
I fail to see the connection here, and in any case, constitutional law is not (at least ideally) part of “the political process.”
For which we have a forum, and it’s not General Questions.
Until we get a clear objective report of what she said, I feel we can only withhold judgment on her opinions. (Pace KenGr,'s research, if WorldNetDaily reported that an Ice Age was imminent, I’d invest heavily in Carrier Air Conditioning!)
That debate would be quite relevant in a Great Debates thread. But the bottom line is that the courts are charged with trying cases and controversies in relevance to the law of the land, and must therefore resolve any apparent contradictions in that law, and issue rulings in conformity with their findings. For 200 years and a few months, that expectation has been construed to mean that they will not give force or effect to a law that contradicts the supreme law (grundlag) of the land.
Even on the basis of your argument with sailor, the clear language of the Fourteenth Amendment holds that no state shall take any action that will abridge the rights of U.S. citizens. And states do not have “rights” – they have powers – all powers that are not either (a) exclusively the province of the Federal government under the Federal constitution, (b) prohibited to them explicitly in the Federal or state constitution, or © ones whose exercise would abridge rights guaranteed under Federal or state constitution. That there may be grounds for questioning the existence of “implied rights” I will not dispute – but that the states reserved the right to regulate behavior as against those “implied rights” is patently false. Either the “implied rights” do not exist, or they are rights of citizens of the U.S., and the provisions of the Fourteenth Amendment hold.
Many things that seem “quite clear” when ripped from their context do not withstand scrutiny when placed back in context and viewed in light of additional evidence. Heck, that .PDF you linked to earlier made it completely clear that the Supreme Court routinely ignores international law and conventions.
Ever wonder what it would be like to be a young-earth creationist? You know, ignoring the vast weight of evidence and instead focusing on a single bit of information that, standing on its own, could be read to support a contrary view?
Bingo.
No sir, I am not. The World Court said stop the execution; the Supreme Court told 'em to get bent.
Goody for her. But she’s not the Supreme Court.
Largely correct, though the Court has also clearly held that the U.S. may follow or ignore its treaty commitments however it sees fit. More to the point, however, is that your claim was specifically that international law is binding on the U.S. regardless of whether it is enshrined in a treaty to which the U.S. is a party. That is simply not the case.
Yes, it does. I repeat: The World Court said stop the execution; the Supreme Court told 'em to piss off. So much for being “bound by international law.”
>> The World Court said stop the execution; the Supreme Court told 'em to piss off. So much for being “bound by international law”.
You are totally missing the point. The District Attorney in the OJ Simpson case wanted to send him to jail and the Judge and Jury said “piss off”. That does not imply murder is not against the law.
I do not believe the SCOTUS has ever said the Executive branch of the government is free to not abide by the treaties ratified by the senate. that would be clearly unconstitutional and I would like to see a cite for that. What the SCOTUS said is that the actions of the Executive did not violate the treaty which is a totally different thing. Just like the OJ verdict did not say murder was legal, rather it said OJ had not committed murder. Maybe the distinction is lost on you but iit’s there unless and until I see a cite of the SCOTUS declaring that the Executive is not bound by the treaties ratified by the Senate of the US.
Polycarp, the fact that homesexuals are protected by the Constitution is an issue should not be shocking as you feign surprise at my statement. I might have described the case better by saying that the Supreme Court determined that by ratifying the Constitution and becoming a State, Texas, which previously was an independent country with plenary power and which had criminalized homosexual behaviour, was determined 200 years later to have relinquished its power to prohibit homosexual conduct. I was not suggesting that homosexuals do not have rights as citizens.
As for the SCOTUS frustrating the political process, I suppose I need to elaborate. In the U.S., we have representative democracy by which one votes for legislators and an executive, and a constitutional separation of powers. If the judiciary creates law rather than interprets it, if it “rewrites” the constitution rather than enforcing the 9th and 10 amendments and its express provisions regarding amendment, and if it defers to decisions of courts outside the US decided by judges not (directly or even indirectly) elected by US citizens, it frustrates the US political process.