Right. Good formulation. When a foreign national does not identify himself as such, what should the remedy be for failing to notify him of his rights under the treaty?
Absolutely. The Senate should adopt a rule that handles this.
We did enact a law that laid out the specific process. Or are you contending that “The said authorities shall inform the person concerned without delay of his rights under this subparagraph” is somehow unclear and ambiguous?
I hold people to the standards they declare are important. Alito, Roberts, Scalia, and Thomas have said that judicial activism is wrong. So when I see them doing it, I point out that - according to their own standards - what they’re doing is wrong. If they acknowledge that judicial activism is acceptable, I will stop raising objections to them doing it. Although I will probably still object to some of their decisions on other grounds (hypocrisy is not their only fault).
Yes. Because it doesn’t say how the said authorities are supposed to become apprised of “the person concerned”'s status, and what remedy should be imposed if their inaction arises from being unaware that “the person concerned” fell into this category.
Marbury v. Madison was judicial activism, but even Scalia, Alito, Roberts, and Thomas do not advocate overturning it. You are making a strawman argument, in other words, by suggesting that consistency requires a steadfast adherence to textualism and the treating of every issue de novo. The general view is not that we should tear down 200 years worth of jurisprudence, but that we should stop adding to it by this flawed method.
The distinction between a self-executing treaty and a non-self-executing treaty goes back to 1801. While it may well have been judicial activism in 1801, it has been the basis of a substantial body of law since.
My understanding is that a non-self-executing treaty is one that only describes principles. A self-executing treaty is one that describes procedures.
So a treaty that said, “People should have freedom of worship” is a statement of principle and is non-self-executing as it doesn’t specify how this principle should be implemented. A government could sign this treaty and then arrest people for going to church. It would just say, “Sure we arrested them for going to church. But they’re free to worship however they wish in prison so we’re not violating the treaty.”
But if a treaty said “People should have freedom of worship and the government should not arrest people for attending religious services” then it’s stating a specific procedure. If the government ratifies the treaty and then goes ahead and arrests people for going to church, it can’t say, “Well, yeah, we signed a treaty that said we wouldn’t arrest people for going to church. But we didn’t pass a law that said we would follow the treaty.”
I agree, to a point, but you are glossing over (or unaware of) the fact that the treaty’s own language directs ratifying states to enact legislation implementing it. This strongly suggests that the treaty is not intended to be self-executing.
Not quite. I take it you didn’t read Foster v. Neilson, 27 US 253 (1829) as part of the process of forming your understanding?
I’d say this is just another example of what I said. Alito, Roberts, Scalia, and Thomas pick and choose when they wish to use some principle. They make the decision they want and then they go back and decide which principles will work to justify it. If they feel the text supports their decision, then they’re strict textualists. If the text isn’t there, then strict textualism doesn’t apply in this case.
You can’t say that “I follow a principle of marital fidelity” and then add “except when I’m having an affair.” That’s not a principle - it’s just a statement that sometimes you cheat on your spouse and sometimes you don’t. You’re behaving exactly the same way as somebody who doesn’t claim to practice marital fidelity. It’s not a principle if you only follow it when you choose to follow it.
That’s not remotely a correct summary of what I said. I enunciated a principle that you have chosen to ignore, instead pretending that I said nothing.
I said that long-standing decisions, decisions that have created a bulk of foundational caselaw, should not be overturned even though their origin is not textually based.
Your summary was, “If the text isn’t there, then strict textualism doesn’t apply in this case.”
Why did you do that?
I can imagine two reasons. You didn’t understand what I said, or you understood it, but since it didn’t help your argument, and in fact undermined your argument, you chose to misrepresent it.
Perhaps there’s another explanation. I’d like to hear it.
To repeat, the principle you offer: adhere to textualism in all cases and treat every issue without regard for precedent – is a strawman. None of the Supreme Court justices, even Thomas, says this. When you say it as though it’s their argument, that is the strawman fallacy.
Wasn’t he given access once it was known he was a Mexican national?
This is my understanding as well. The complaint of the Mexican government was that he was not given notice of consular access early enough in the process for them to provide him with the option of “better” representation.
Texas, being a sub-entity, isn’t a subject of International Law. So it can’t violate it. If Texas invades Mexico (as he frequently does in Supreme Ruler 2020, by the way), the law breaker is the USA, assumed to be in control of the armed forces within the country.
Never as in prior to his conviction, not never ever ever.
Already addressed this:
[QUOTE=Me]
…we’re not talking about who gets sued. I was responding to [somebody’s] specific assertion that…
They didn’t follow the law, since Garcia was never given consular access. Whether or not there is a remedy for their failure to follow the law where Congress has not enacted a statute executing the treaty is a different issue.
[/QUOTE]
True, however I don’t put the fault on Texas authorities. There is no indication in this case that the United States acted to violate Garcia’s rights.
The claim is that they violated Garcia’s rights through inaction. . .that they failed to determine he had Mexican citizenship, or even make any attempts to do so, and notify him of his right to contact the Mexican consulate.
I guess we need to agree on “the law.” I agree Texas did not adhere to the VCCR treaty. But I’m talking about the laws the State of Texas is obligated to follow. The treaty, as it currently stands from Texas’s perspective, is only international law. Texas is not obligated to follow international law; it has no domestic effect here. Texas is obligated to follow Texas and US domestic law. So, yea, Texas followed the law.
The US, because it is bound to its valid treaty obligations regardless of whether the treaty has domestic effect, is in breach for Texas’s failure to adhere to the VCCR treaty.
If I were arrested one of the first thing police would check would be my identity (which usually means looking at my ID card, or my passport if I were a foreigner). For example, in order to establish whether I am wanted for something else. Which would establish my citizenship. Also the written notifications on the rights of the arrested (a sample from Berlin - German language seem to have a paragraph on the right to consular access nowadays, as a precautionary measure as mentioned upthread.
What documents would they check if you’re undocumented? If, instead of coming here with a valid passport, you were an illegal immigrant who for some reason didn’t want to advertise that fact?
My WAG (not being a lawyer) would be that they’d first establish check my name and residence with a reliable source (e.g. my landlord), then look at the municipial residents’ and the resident aliens’ register. IF I am not in there chances are I am an undocumented immigrant, and I guess authorities would encourage me to contact my consulate - in fact be ecstatic if I did so, because it would be against my interest. If I establish my identity with my consulate, my home country will be able to issue me a passport, and I can be repatriated against my will (shortly if not charged and convicted, after serving my term otherwise). Weighing that disadvantage against the little help that my consulate will give me (less than that of the court-appointed lawyer I can get anyway) it is in my interest to decline consular help and in the state’s interest to encourage me to seek it.
I guess a difference with the US situation would be that absent the death penalty you get less of these grasping-at-straws legal fights after the main trial.
There is a municipal residents’ and resident aliens’ register in France, Spain or Germany? I imagine there is some kind of voters’ registration in every country, but do you have to register your residence with some municipal authority apart from that?
Not arguing, you just made me curious.
Lots of people with no U.S. immigration status still have reliable identity documents (Home country passport or consular ID cards, one example being the Mexican matricula). If they were here legally for a while but then fell out of status, they could well have driver’s licenses or Social Security cards, or all kinds of other things.