October 03, 2008

The Supreme Court and International Law

Noah Feldman, a Harvard law professor and an adjunct senior fellow at the Council on Foreign Relations, has an interesting piece in last Sunday’s New York Times Magazine that analyzes the relationship between the U.S. Supreme Court and international law. Feldman argues that there are two lenses through which one can view this relationship. The first views the Constitution as facing inward, “toward the Americans who made it, toward their rights and their security.” This view is accepted by Supreme Court Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The other views the Constitution as facing outward, in a paradigm in which “rights similar to those [the Constitution] confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order.” This view is accepted by Justices Stevens, Souter, Ginsburg, and Breyer.


Feldman states that each of these views of the Constitution in international law has recently enjoyed a victory. The liberals, with the aid of Justice Kennedy and an outward-looking Constitution, prevailed in the much-publicized Boumediene v. Bush, a decision that granted detainees at Guantanamo Bay the ability to challenge, in U.S. courts, their detention. Conservatives, with the aid of Justice Kennedy and an inward-looking Constitution, scored a recent victory in Medellin v. Texas. In Medellin, the International Court of Justice declared Jose Medellin’s murder conviction to be in violation of the Vienna Convention on Consular Relations, a treaty which guaranteed a right of foreign citizens to speak to the embassies of their respective countries while detained. The Supreme Court, however, held that Medellin, under the rules of postconviction judicial review, could not ask the courts to consider legal arguments that were not first raised at trial. The Court also ruled broadly that treaties obligating the United States to follow rulings by the International Court were not binding law, unless Congress passed a separate statute explicitly making the rulings binding. Feldman writes:


“The key vote in both cases was that of Kennedy. In both cases, he acted to uphold the prerogatives of the Supreme Court – against the president and Congress in the Guantanamo case, and against the international court in the Medellin decision. And Kennedy does argue that such judicial supremacy is crucial to the rule of law. But the other justices did not see the cases in those terms. To them, the cases were not primarily about the perennial issue of the division of powers between the different branches of government. To these eight justices, the cases were about what sort of Constitution we have: either outward-facing or inward-looking.”


Feldman's article raises an interesting question: Do we have a Constitution that is “outward-facing” and confers rights on all world citizens, or is our Constitution “inward-facing” and centered only on the rights of Americans?

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