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TCO
27-03-2008, 00:44:13
Good Constitutional interpretation. Treaties can not be used as a means to amend the Constitution.


http://michellemalkin.com/2008/03/25/breaking-supreme-court-rules-against-illegal-alien-death-row-murderer-and-stupid-bush-administration-upholds-us-sovereignty/

TCO
27-03-2008, 00:56:59
http://volokh.com/archives/archive_2008_03_23-2008_03_29.shtml#1206463133

Shining1
27-03-2008, 01:25:32
Heh. Why even have a federal government then?

Greg W
27-03-2008, 03:14:35
What a surprise, after the US threw prisoners into Guatmo with no trial and held them for years, violating international laws in the process. They have proven that they only follow international law when it suits them.

Oerdin
27-03-2008, 04:42:51
Originally posted by TCO
Good Constitutional interpretation. Treaties can not be used as a means to amend the Constitution.


http://michellemalkin.com/2008/03/25/breaking-supreme-court-rules-against-illegal-alien-death-row-murderer-and-stupid-bush-administration-upholds-us-sovereignty/

Michelle Malkin is a fucking piece of dog shit.

No longer Trippin
27-03-2008, 04:57:27
So your saying we only follow international law when it is in our interest?

Oerdin
27-03-2008, 05:29:51
No the supreme court got this one right but that doesn't change the fact that Michelle Malkin is dog shit. She's an Asian Ann Coulter. A shrill spewer of hate who adds nothing to political discussion.

She is a big supporter of rounding up Muslims in the US and putting them into concentration camps. She even wrote a book supporting it.

Greg W
27-03-2008, 06:12:12
Originally posted by No longer Trippin
So your saying we only follow international law when it is in our interest? Well, according to this (http://www.hrw.org/reports/2002/us911/USA0802-04.htm), the US is indeed a signatory to the treaty. So if it did not allow the prisoners access to consular officials, then it is indeed failing to follow international laws, which it itself agreed to.

Greg W
27-03-2008, 06:13:46
And indeed, if the US is a signatory to something, should the States not be held accountable to the same teraties? If not, then it's a joke.

Oerdin
27-03-2008, 06:14:01
The Texans are claiming the guy never asked to speak to the Mexican embassy. Smells like a fishy claim to me.

Greg W
27-03-2008, 06:16:53
According to that link, the US is obliged ot inform the consulate of any country whose citizen is detained by them. So it wouldn't matter if the bloke never asked, form the way I interpret it anyways...

Greg W
27-03-2008, 06:18:15
Sorry, got that wrong:When the United States ratified the Vienna Convention on Consular Relations in 1969, it bound itself to inform any foreign national detained by U.S. law enforcement, without delay, of his or her right to seek consular assistance. It must also notify the consulate without delay if the detained foreign national so requests.

Greg W
27-03-2008, 06:19:00
It has to inform the national, not the consulate itself. :o

Still sounds a bit dodgy to me though.

Oerdin
27-03-2008, 06:22:17
The American right wing is currently gripped in an anti-hispanic craze. Right wing politicians are hoping that if they can play up nativism, nationalism, and xenophobia then they just might survive the coming election.

No longer Trippin
27-03-2008, 06:34:03
Someone missed my sarcasm.

Michelle Malkin doesn't have an Adam's Apple, thus she is not an Asian Ann Coulter. She is dog shit though.

Vincent
27-03-2008, 06:36:22
Please use sarcasm tags in the future

Dyl Ulenspiegel
27-03-2008, 08:49:35
sarcasm


/sarcasm

Funko
27-03-2008, 09:30:28
Originally posted by No longer Trippin
So your saying we only follow international law when it is in our interest?

SHOCK NEWS!

Shining1
27-03-2008, 13:00:38
International law is a joke, and everyone knows Mexico isn't a *real* country, anywah.

Dyl Ulenspiegel
27-03-2008, 13:12:57
The standard reaction under international law is retribution. So the yanks should not be whining when the Mexicans start random executions of gringos.

Greg W
27-03-2008, 14:44:26
Or when the Mexicans invade!

:gotit: Oh, that's right, they already do.

TCO
27-03-2008, 23:59:22
Volokh even said that this is standard remedy. However issues under this judgement related directly to constraining power of the executive over state courts. Not ruled upon but another issue is that the Federal Government can not use treaties as a method to amend the Constitution (for instance to give it a power over the states that otherwise it would lack).

TCO
28-03-2008, 00:00:20
The right wing was very much in favor of the Singapore caning...

Koshko
28-03-2008, 00:55:53
Yeah but that was awesome.

No longer Trippin
28-03-2008, 04:43:03
I just googled micheal fay... turns out he now huffs butane (which set his face on fire) because it "makes him forget about Singapore." A real winner.

KrazyHorse
28-03-2008, 12:44:41
Originally posted by TCO
Good Constitutional interpretation. Treaties can not be used as a means to amend the Constitution

How the fuck is providing consular access an amendment of the constitution?

(Seriously, don't understand)

KrazyHorse
28-03-2008, 12:51:36
As far as I see it, Texas broke the law when it didn't fulfill its obligations under the Vienna treaty. State governments can't break the law in pursuit of convicting and punishing criminals. When they try to do so a judge throws out the case/evidence (for instance when the cops perform illegal searches).

KrazyHorse
28-03-2008, 12:54:59
Oh, and I now fully expect other signatories to treat this part of the Vienna accord as a dead letter as far as the US is concerned. US citizens abroad can say goodbye to their right to be informed of their consular access rights.

Dyl Ulenspiegel
28-03-2008, 13:16:16
Originally posted by KrazyHorse
How the fuck is providing consular access an amendment of the constitution?

(Seriously, don't understand)

Ok, legal stuff: The international law obligation has to be fulfilled by the US.

How the US does this is a matter of domestic law. If the US Constitution lacks an instrument to force states to comply with the convention, the convention cannot supplement this. That would be the amendment.

The whole mess has a deeper root, and that is IIRC the SC's rejection of direct effect and supremacy of the Convention, as provided for in Art VI Section 2 of the US constitution ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.")

If the SC would follow the Constitution, the whole thing could be handled through the Court system.

Greg W
28-03-2008, 14:51:01
Originally posted by Dyl Ulenspiegel
and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the LandI think that pretty much says it all. Case closed.

"What? Oh, I thought that was just a figure of speech." </Simpsons>

KrazyHorse
28-03-2008, 15:28:01
Originally posted by Dyl Ulenspiegel
Ok, legal stuff: The international law obligation has to be fulfilled by the US.

How the US does this is a matter of domestic law. If the US Constitution lacks an instrument to force states to comply with the convention, the convention cannot supplement this. That would be the amendment.

I agree with this. But instead of answering me, you bring up my point here:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.")

KrazyHorse
28-03-2008, 15:30:32
George, Texas can't choose to ignore duly-ratified treaties.

Texas' laws are subordinate to treaties. If you want it to be otherwise then other countries are going to start signing treaties with individual states.

KrazyHorse
28-03-2008, 15:32:16
For a court which has done so much to extend executive power, this is pretty lame.

I think that these justices are more swayed by emotional arguments than they'd like to admit....

KrazyHorse
28-03-2008, 15:40:32
There's a lot of talk sputtering around about US "sovereignty".

a) That's funny, because sovereign entities should be able to make agreements with each other and should be able to live by them if they choose to (which the US government has now shown it is incapable of doing despite wanting to).

b) I guess by this logic the SC should abrogate every treaty the US has ever signed if any American doesn't want to live by it...

Dyl Ulenspiegel
28-03-2008, 15:47:10
KH:

Your missing explanation is here: "The whole mess has a deeper root, and that is IIRC the SC's rejection of direct effect and supremacy of the Convention"

I am not sure about the exact argument (lacking precision for direct effect or lacking substantive quality in penal cases), but it's definately bullshit.

But in this precedence-trap, you have to go the round-about way through the executive, and that has no basis what so ever.

Lurker the Second
28-03-2008, 15:47:22
I haven't read the opinion, but I think the issues are more nuanced than have been generally perceived. I could be wrong, but I doubt the Supreme Court said states could ignore treaties. Not gonna say more b/c haven't read it.

Dyl Ulenspiegel
28-03-2008, 15:49:41
IIRC, the SC position was something like the states are not allowed to ignore it, but should they ignore it, it has no consequences.

I think now they used lack of substantial effect in trials, but can't be arsed to read through their hogwash.

Twats.

Lurker the Second
28-03-2008, 16:03:22
I thought the dispute was more about the enforceability of an ICJ judgment? I suppose I should read the case, which I'll do over the weekend now since I'm curious and all.

Dyl Ulenspiegel
28-03-2008, 16:21:51
Yes, but the ICJ judgment and the "executive way" arose because of the earlier decision by the SC. I had read both at the time, but it's been a while.

Vincent
28-03-2008, 16:41:28
loyers r gay

KrazyHorse
28-03-2008, 17:02:35
I guess this means that Arizona should be able to start a shooting war with Mexico and the US federal gov't wouldn't be able to do more than cluck...

KrazyHorse
28-03-2008, 17:04:13
Why should anybody sign treaties with the US any more than they should sign treties with the EU?

Dyl Ulenspiegel
28-03-2008, 17:07:56
"War" is a federal power, the run of the mill murder trial isn't.

And btw, there are many international treaties with the EU. GATT/WTO, for example.

Shining1
28-03-2008, 21:12:45
So does Mexico retaliate against the U.S.A, or against Texas?

Shining1
28-03-2008, 21:14:06
I mean, they could invade, and then Texas could see how keen it was to follow the rules of the union. Or it could win and double its territory and illegal worker population.

Vincent
28-03-2008, 21:39:59
yes

Dyl Ulenspiegel
28-03-2008, 22:22:08
no

Oerdin
28-03-2008, 22:37:23
Originally posted by KrazyHorse
There's a lot of talk sputtering around about US "sovereignty".

a) That's funny, because sovereign entities should be able to make agreements with each other and should be able to live by them if they choose to (which the US government has now shown it is incapable of doing despite wanting to).

b) I guess by this logic the SC should abrogate every treaty the US has ever signed if any American doesn't want to live by it...

Put right wingers on the court and you get hyper nationalists who ignore the law as they please. It's a shame but that's what we end up with since 51% of Americans voted for fucktards.

TCO
28-03-2008, 22:51:37
Originally posted by KrazyHorse
How the fuck is providing consular access an amendment of the constitution?

(Seriously, don't understand)

You don't understand cause you expect me to be smart or you just don't understand? IAC, the idea hangs around state laws and provisions of separations of powers.

LoD
28-03-2008, 22:53:21
Originally posted by Oerdin
No the supreme court got this one right but that doesn't change the fact that Michelle Malkin is dog shit. She's an Asian Ann Coulter. A shrill spewer of hate who adds nothing to political discussion.

She is a big supporter of rounding up Muslims in the US and putting them into concentration camps. She even wrote a book supporting it.

It's a shame she hasn't lived in the 40ties, after Peal Harbor specifically. Would have probably given her some perspective.


Originally posted by Oerdin
The American right wing is currently gripped in an anti-hispanic craze. Right wing politicians are hoping that if they can play up nativism, nationalism, and xenophobia then they just might survive the coming election.

ROTFLMAO!

TCO
28-03-2008, 22:57:17
Originally posted by KrazyHorse
As far as I see it, Texas broke the law when it didn't fulfill its obligations under the Vienna treaty. State governments can't break the law in pursuit of convicting and punishing criminals. When they try to do so a judge throws out the case/evidence (for instance when the cops perform illegal searches).

Dude, I'm a moron...but there are ideas being expressed. Please keep your eye on the ball. Sheesh.

TCO
28-03-2008, 23:03:42
Originally posted by Lurker the Second
I haven't read the opinion, but I think the issues are more nuanced than have been generally perceived. I could be wrong, but I doubt the Supreme Court said states could ignore treaties. Not gonna say more b/c haven't read it.

TCO
28-03-2008, 23:04:35
Lurker is so....so cool. I fucking say that. It so. I do.

Oerdin
29-03-2008, 00:44:16
Originally posted by Lurker the Second
I haven't read the opinion, but I think the issues are more nuanced than have been generally perceived. I could be wrong, but I doubt the Supreme Court said states could ignore treaties. Not gonna say more b/c haven't read it.

My understanding is you are wrong. They claimed that the tenth amendment (all other rights are reserved for states) trumps US treaty obligations despite the constitution EXPLICITLY saying that treaty obligations take precedence over state laws. It is absolutely retarded without any excuse.

TCO
29-03-2008, 02:17:16
If the US signs a treaty with the Vatican making Catholocism the official religion, are we bound by it?

KrazyHorse
29-03-2008, 04:07:48
Originally posted by TCO
Dude, I'm a moron...but there are ideas being expressed. Please keep your eye on the ball. Sheesh.

I am keeping my eye on the ball. The SC has now held that states can ignore treaties whenever they please. As far as I can tell, that is against the explicit wishes of the writers of the Constitution...

KrazyHorse
29-03-2008, 04:39:41
I love watching Americans try to twist what the Constitution says to whatever they think it should say. Give up already. It was written 220 years ago. They didn't get it exactly right. Now you guys have stuck yourselves in a situation where your government can't abide by the treaties it ratifies because of what some judge decided that article 6(?) should have said instead of what it actually said.

Pardon me if the mix of mental gymnastics and pedantry being engaged in here is less than fascinating to me.

By the way:

If the US signs a treaty with the Vatican making Catholocism the official religion, are we bound by it?

Depends on how you want to resolve any other issue where the "supreme law of the land" contradicts itself. Like the 18th and 21st Amendments.

Most people would say that the more recent additions are supreme. In which case the answer to your question is yes. Duh.

LoD
29-03-2008, 09:57:40
BTW, I'm surprised Dyl isn't actually cheering on the US Supreme Court - given where the treaty was signed.

Greg W
29-03-2008, 13:29:31
Speaking of twisting the constitution... I still find it funny that the amendment to carry firearms is spouted as a reason why owning guns should remain legal, when it was written to allow people to bear arms in the Civil War! :lol:

:nervous:

Oerdin
29-03-2008, 13:46:06
Originally posted by LoD

ROTFLMAO!

You highlighted nativism and I'm not sure why.

http://en.wikipedia.org/wiki/Nativism_%28politics%29

Oerdin
29-03-2008, 13:50:39
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-984&friend=nytimes

That's the 6-3 decision. The majority is claiming that treaties don't automatically become law without some second act of Congress making them law. I find that bizarre since the treaty has been in effect since 1963. This seems very much like the court twisting and attempting to come up with excuses not to free a rapist and a murderer. I agree he's a bad guy but the rule of law should win over any case no matter the specifics of what the guy did.

TCO
29-03-2008, 15:10:19
Originally posted by KrazyHorse
I am keeping my eye on the ball. The SC has now held that states can ignore treaties whenever they please. As far as I can tell, that is against the explicit wishes of the writers of the Constitution...

I need to go back and actually read all that stuff. But I don't think that is what the ruling says. I think that it says that the PRESIDENT does not have executive power to change judicial behavior of the states. Also, I don't think they ruled on this, but it's an interesting issue that a US Treaty should not have the power to modify constitutional construction. For instance, one can't use a treaty to establish a religion or to change the balance of powers between the states and the Federal.

Greg W
29-03-2008, 15:22:08
Originally posted by Oerdin
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-984&friend=nytimes

That's the 6-3 decision. The majority is claiming that treaties don't automatically become law without some second act of Congress making them law. I find that bizarre since the treaty has been in effect since 1963. This seems very much like the court twisting and attempting to come up with excuses not to free a rapist and a murderer. I agree he's a bad guy but the rule of law should win over any case no matter the specifics of what the guy did. Didn't read all that (aka the link), but...

Surely the worst case scenario would be that the man could claim a mistrial, and force a retrial? I can't see where allowing him access to consulate staff, even now, would allow him to walk free. Unless I'm missing something (quite possible).

LoD
29-03-2008, 15:55:11
Originally posted by Oerdin
You highlighted nativism and I'm not sure why.

http://en.wikipedia.org/wiki/Nativism_%28politics%29

I find the discrepancy between the meaning implied by its etymology and the actual semantics hilarious.

TCO
29-03-2008, 15:57:28
Thanks for posting that stuff. I skimmed both the opinion and dissent. I can't clearly tell who is right. Would probably need to look at the cases cited and have some better grounding in law in general. But I'm glad that we are free of having IJC messing with us. Also, hope that they fry that murderer.

Vincent
29-03-2008, 16:00:00
Congrats, now die

TCO
29-03-2008, 16:00:56
Originally posted by KrazyHorse
I love watching Americans try to twist what the Constitution says to whatever they think it should say. Give up already. It was written 220 years ago. They didn't get it exactly right. Now you guys have stuck yourselves in a situation where your government can't abide by the treaties it ratifies because of what some judge decided that article 6(?) should have said instead of what it actually said.

Pardon me if the mix of mental gymnastics and pedantry being engaged in here is less than fascinating to me.

By the way:



Depends on how you want to resolve any other issue where the "supreme law of the land" contradicts itself. Like the 18th and 21st Amendments.

Most people would say that the more recent additions are supreme. In which case the answer to your question is yes. Duh.

So ratified treaties are a method of amending the Constitution? If we signed a treaty with Andora that changes the number of Senators to 3/state, than that would now be the law? :clueless:

Vincent
29-03-2008, 16:02:11
No

Vincent
29-03-2008, 16:02:36
I mean yes

LoD
29-03-2008, 16:03:08
TCO: pretty much every free, democratic country puts international law along or even above its constitution (or equivalent). Why are you surprised the US has provisions for the same?

Vincent
29-03-2008, 16:04:17
Yes and no, somehow. I won't affect your karma anyway

Vincent
29-03-2008, 16:05:06
I mean: who needs karma when he has a bike. A BIKE!!!

Vincent
29-03-2008, 16:06:03
It's a fucking bike. A dutch bike, btw. They make fine bikes. A really old one too. But it's still great. much better than fuckin karma.

Vincent
29-03-2008, 16:07:00
Ah, forget about the bike. It's just transportation, hehe, nudge nudge.

You know what really matters in the end ...

Vincent
29-03-2008, 16:08:05
I won't stop your ears from bleeding, right. Or the nose. The nose is a delicate thing. Better be carefullllll ...

Vincent
29-03-2008, 16:09:03
Hey, what's this?

http://i2.bebo.com/029b/14/drawingsmall/2007/01/09/21/2097029606a3143154962b613604131s.gif

TCO
29-03-2008, 16:17:07
Originally posted by LoD
TCO: pretty much every free, democratic country puts international law along or even above its constitution (or equivalent). Why are you surprised the US has provisions for the same?

Because we are soveriegn. Because they lack a mechanism of enforcement. Because there is not yet a functioning world state, with elections and power and the sort of architecture that the Federal government has versus the states.

Because we are better than those weeners. And it pisses them off when all their little tie Gulliver down with ropes schemes fail.

Oh...and try getting the Swiss to buy off on international courts having jurisdiction over them.:bash: (Just in case, they do, I pulled that example out of my ass.)

Vincent
29-03-2008, 16:19:43
Yeah, it stinks

Funko
29-03-2008, 17:06:44
They had an official survey into what country in the world had the best law.

1. Denmark
2. New Zealand
3. Tuvalu
4. Greece
5. Austria
6. Senegal
7. Germany
8. France
9. Surinam
10. United Kingdom

...

54. United States.

So that's that settled.

Vincent
29-03-2008, 17:08:52
I saw that on TV last night. I also saw "monk", but an old episode

Funko
29-03-2008, 17:10:05
He has the best kung fu on TV.

Vincent
29-03-2008, 17:12:00
That's what the survey found out?

KrazyHorse
29-03-2008, 17:20:05
Originally posted by TCO
So ratified treaties are a method of amending the Constitution?

No, they're a method of amending the "supreme law of the land". Which includes both treaties and the Constitution.

KrazyHorse
29-03-2008, 17:21:35
Originally posted by TCO
Because we are soveriegn.

No, exactly the opposite. A sovereign power would have the ability to bind its subordinate parts to whatever agreements it signs. This decision represents a LIMITATION of US sovereignty.

KrazyHorse
29-03-2008, 17:22:00
Seriously, if you can't see that then I'm embarrassed for you.

Vincent
29-03-2008, 17:22:03
I copy and paste all my homework from here!

KrazyHorse
29-03-2008, 17:23:53
If I'm the sovereign of my house then I should be able to buy a car without my wife objecting when I write a cheque from our bank account. If she has legal recourse to object then I am no longer SOVEREIGN. I can no longer engage in free trade with other sovereigns.

:rolleyes:

Vincent
29-03-2008, 17:26:06
What car would that be? A BMW?

KrazyHorse
29-03-2008, 17:30:52
As if I could afford a BMW.

TCO
29-03-2008, 17:30:55
Originally posted by KrazyHorse
No, they're a method of amending the "supreme law of the land". Which includes both treaties and the Constitution.

Could a treaty be used to create an established religion? I think you said, yes, duh. But I want to be clear.

And a method of amending the Constition is a subset of a method of amending the Constitution and treaties.

KrazyHorse
29-03-2008, 17:32:18
It does not amend the Constitution. But article 6 puts treaties and the Constitution on equal footing. The hierarchy of Constitution-Treaties-Ordinary Law has no basis in the actual wording of the Const. as far as I can see.

TCO
29-03-2008, 17:34:47
Originally posted by KrazyHorse
No, exactly the opposite. A sovereign power would have the ability to bind its subordinate parts to whatever agreements it signs. This decision represents a LIMITATION of US sovereignty.

You're confusing different parts of the discussion. My comment about soveriegnty was in response to the issue of whether the US should be subordinate to the IJC. We are a functioning power. The international community is not.

How this ruling limits the power of the Federal executive is another matter. However, the decision claims that this power was already so limited. And in our system of government there are limits on the Federal, limits on the states...as well as limits on the Executive versus other branches.

TCO
29-03-2008, 17:37:48
Originally posted by KrazyHorse
It does not amend the Constitution. But article 6 puts treaties and the Constitution on equal footing. The hierarchy of Constitution-Treaties-Ordinary Law has no basis in the actual wording of the Const. as far as I can see.

Can treaties be used as a DE FACTO method of negating or changing portions of the Constitution? Did you really mean it with the "yes, duh" that a treaty could be used as a mechanism to create an established religion? How about my example of changing the number of Senators via treaty?

Vincent
29-03-2008, 17:38:38
No thanks

TCO
29-03-2008, 17:39:00
Are you making a pedantic argument that the Constitution would still exist as it is, but that the more recent governing law to be consulted would be the 3-Senator/established Religion treaty?

Vincent
29-03-2008, 17:39:59
Rather a 4-wheel drive

KrazyHorse
29-03-2008, 17:39:59
Almost any country can abrogate any international treaty it wants at any time. If the US signs a treaty accepting judgement of the IJC in certain cases then there is no relinquishment of sovereignty. If I decide to accept arbitration of a dispute while retaining the right to ignore the result of the arbitration then I am still sovereign.

This decision limits the sovereignty of the US by denying it the ability to accept arbitration.

Vincent
29-03-2008, 17:41:26
True. Like italian cars, Fiat for example!

KrazyHorse
29-03-2008, 17:42:07
Originally posted by TCO
Are you making a pedantic argument that the Constitution would still exist as it is, but that the more recent governing law to be consulted would be the 3-Senator/established Religion treaty?

It's not an argument. It's a clarification of definitions. And to both your questions: yes.

Vincent
29-03-2008, 17:42:46
Or rather Maserati. Now that's an italian car.

The Mad Monk
29-03-2008, 17:58:06
Originally posted by Funko
They had an official survey into what country in the world had the best law.

1. Denmark
2. New Zealand
3. Tuvalu
4. Greece
5. Austria
6. Senegal
7. Germany
8. France
9. Surinam
10. United Kingdom

...

54. United States.

So that's that settled.

I guess they didn't take libel laws and outlawing political parties into account.

TCO
29-03-2008, 18:02:44
Originally posted by KrazyHorse
Almost any country can abrogate any international treaty it wants at any time. If the US signs a treaty accepting judgement of the IJC in certain cases then there is no relinquishment of sovereignty. If I decide to accept arbitration of a dispute while retaining the right to ignore the result of the arbitration then I am still sovereign.

This decision limits the sovereignty of the US by denying it the ability to accept arbitration.

I think that the writer of the decision takes the view that prevailing law already created these limits and that actions of the President were an improper grab of power. You are also not coming to grips with the issue of the different branches (legistlative creating enabling laws, versus President sending off memoranda as if they have the effect of law). Did you read the decision (NYT link that Oerdin gave)?

Vincent
29-03-2008, 18:05:04
The Maserati was quite expensive so and I spent a lot of time driving it to the garage.

I sold it and the Porsche was a far better car, and the colour was lovely!

zmama
29-03-2008, 18:18:03
Red Porsche ftw



gief goldz

Vincent
29-03-2008, 18:22:00
No, it was a light blue 1969 , like this one

http://www.virtualtoyshop.com/Minichamps/Porsche/430067134%20PORSCHE%20911%201964%20BLUE.jpg

LoD
29-03-2008, 18:55:46
Originally posted by TCO
Can treaties be used as a DE FACTO method of negating or changing portions of the Constitution? Did you really mean it with the "yes, duh" that a treaty could be used as a mechanism to create an established religion? How about my example of changing the number of Senators via treaty?

You're confusing law with the source of law. This is what KH has been trying to explain.

I'm starting to see where the problem is. You don't see why any sane government would construct such a judicial system (where an international treaty can take precedence over the constitution), am I correct?

Well then, think about the converse situation - where an international treaty has the same "power" as, say, a congressional statute. Then, to be taken seriously, the undersigned country would have to approve some legal document more "powerful" than a statute. This nets another legal document, essentially a duplicate.

And let's not ignore the fact that the system usually makes provisions against the abuse you suggest. For example, in Poland, the ratification and signing of an international treaty is of equal difficulty than modifying the constitution. I don't know how is it in the States, but I have a sneaking suspicion there exists a strong similarity.

So, have I cleared your doubts? Because if not, I rest my case :)...

Oerdin
29-03-2008, 19:31:12
Originally posted by Funko
They had an official survey into what country in the world had the best law.

1. Denmark
2. New Zealand
3. Tuvalu
4. Greece
5. Austria
6. Senegal
7. Germany
8. France
9. Surinam
10. United Kingdom

...

54. United States.

So that's that settled.

Do you have a link?

JM^3
29-03-2008, 19:48:27
Originally posted by LoD

And let's not ignore the fact that the system usually makes provisions against the abuse you suggest. For example, in Poland, the ratification and signing of an international treaty is of equal difficulty than modifying the constitution. I don't know how is it in the States, but I have a sneaking suspicion there exists a strong similarity.


In the US it is a generally easier to get a treaty ratified then to pass a Bill through congress. And much much easier then modifying the constitution.

"Treaties

The Constitution gives the Senate the power to approve, by a two-thirds vote, treaties made by the executive branch.

The Senate has rejected relatively few of the hundreds of treaties it has considered in its history. Many others, however, have died in committee or been withdrawn by the president rather than face defeat.

Some presidents have found it helpful to include senators in negotiating treaties in order to help pave the way for later Senate approval.

The requirement for a two-thirds vote ensures that a treaty will need bipartisan support to be approved.

The Senate may also amend a treaty or adopt various changes, which may lead the other nation, or nations, to further negotiate the treaty.

The president may also enter into executive agreements with foreign nations that are not subject to Senate approval."

-from web

"The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered.[13]

Amending the Constitution is a two-part process: amendments must be proposed and then they must be ratified. Amendments can be proposed one of two ways. The only way that has been used to date is through a two-thirds majority vote in both houses of Congress. Alternatively, two-thirds of the legislatures of the States can call a Constitutional Convention to consider one or more amendments. This second method has never been used, and it is unclear exactly how, in practice, such a Constitutional Convention would work.

Regardless of how the amendment is proposed, the amendment must be approved by three-fourths of states, a process called ratification. Depending on the amendment, this requires either the state legislatures or special state conventions to approve the amendment by simple majority vote. Amendments generally go to state legislatures to be ratified, only the Twenty-first Amendment called for special state conventions.

Unlike many other constitutions, amendments to the U.S. constitution are appended to the existing body of the text without altering or removing what already exists. There is no provision for deleting either obsolete text or rescinded provisions."

-http://en.wikipedia.org/wiki/Us_constitution

Jon Miller

Vincent
29-03-2008, 20:01:51
Not to mention crap american cars ...

JM^3
29-03-2008, 20:08:22
The short version of what I posted is this. It is much easier to get a treaty signed in the US then to amend the constitution.

To ratify a treaty:
2/3 vote in the senate (and the senate rejects few of the treaties it considers)

To amend the Constitution:
2/3 vote in the senate
2/3 vote in the house
3/4 vote of state legislatures

Something on the order of 10k amendments have been introduced, less then 30 of them completing the process and very few recently.

JM

JM^3
29-03-2008, 20:12:31
Basically, I think that a treaty has the same binding strength as a US law. Which means that it is weaker then the constitution. I haven't read enough about this case to have any opinion on it.

Jon Miller

JM^3
29-03-2008, 20:38:38
KH: "Clause two provides that the Constitution, federal laws made pursuant to it and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be upheld. Even state constitutions are subordinate to federal law." is what Wiki says, if so treaties are only on equal footing with the constitution if they are made under it's authority. A treaty counter to the constitution is not under it's authority.

Jon Miller

Immortal Wombat
29-03-2008, 20:58:19
Originally posted by Oerdin
Do you have a link?
http://www.link.com/

Immortal Wombat
29-03-2008, 20:59:05
also http://iwanttoplayfreegames.net/images/Flash_Zelda.jpg

Immortal Wombat
29-03-2008, 20:59:31
and old school http://www.pixeljoint.com/files/icons/link_zelda.gif

Immortal Wombat
29-03-2008, 21:02:09
and new school http://img184.imageshack.us/img184/2451/thelegendofzeldamessagezw4.jpg

Dyl Ulenspiegel
29-03-2008, 23:01:00
Just for a quick clarification concerning constitutions and treaties.

The general principle is that the domestic effects of ordinary treaties depend upon domestic law. Most modern constitutions solve the problem of the unconstitutional treaty by providing for a procedure to amend the constitution through treaties, and to suspend the domestic effects of a treaty if that procedure has not been followed.

The US Const. has no rule for either. Hardly surprising if you look at the international law concept in english law. Seeing where it comes from, it is perfectly reasonable to deny domestic effect to unconstitutional treaties.

In this case, however, that's not the issue, just in TCO's strawmen.

TCO
30-03-2008, 01:27:50
Originally posted by Dyl Ulenspiegel
Just for a quick clarification concerning constitutions and treaties.

The general principle is that the domestic effects of ordinary treaties depend upon domestic law. Most modern constitutions solve the problem of the unconstitutional treaty by providing for a procedure to amend the constitution through treaties, and to suspend the domestic effects of a treaty if that procedure has not been followed.

The US Const. has no rule for either. Hardly surprising if you look at the international law concept in english law. Seeing where it comes from, it is perfectly reasonable to deny domestic effect to unconstitutional treaties.

In this case, however, that's not the issue, just in TCO's strawmen.

Very thoughtful post. What are you feeling peakish or something?

Yeah...agreed that we segued. But it seems that you disagree with Kitty that a signed, ratified treaty can be used to create a US state religion or 3 senators/state?

And do you side the majority or the minority in terms of correctness of opinions under US law?

Greg W
30-03-2008, 02:07:47
and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the LandTo me, there is no room for argument there. If you are stupid enough to sign a treaty, then it is law. Providing of course that that treaty didn't break anything else in the constitution, and in that case, why did the stupid fuckers you voted into the Senate agree to the treaty anyway?

TCO
30-03-2008, 02:51:26
Originally posted by Greg W
To me, there is no room for argument there. If you are stupid enough to sign a treaty, then it is law. Providing of course that that treaty didn't break anything else in the constitution, and in that case, why did the stupid fuckers you voted into the Senate agree to the treaty anyway?

But that eventuality is part of the discussion. You stacking debate loser, you.

Greg W
30-03-2008, 03:59:47
Ah, the last resort, insults. Well done, well done.

Oerdin
30-03-2008, 05:13:28
Originally posted by Vincent
Not to mention crap Euro cars ...

Fucking things break constantly. You know they're crap when even junk from Korea breaks down less.

TCO
30-03-2008, 13:43:22
Originally posted by Greg W
Ah, the last resort, insults. Well done, well done.

I was expressing my love.

Vincent
30-03-2008, 14:33:32
Go take a dump instead or at least buy a german car

KrazyHorse
30-03-2008, 14:36:26
Originally posted by TCO
I think that the writer of the decision takes the view that prevailing law already created these limits and that actions of the President were an improper grab of power. You are also not coming to grips with the issue of the different branches (legistlative creating enabling laws, versus President sending off memoranda as if they have the effect of law). Did you read the decision (NYT link that Oerdin gave)?

I did. When the treaty was ratified it became law. AFAIK it doesn't take an act of Congress to enforce the laws which are already passed. That's the job of the Justice Dept.

If Congress didn't want a law applied then they shouldn't have passed it.

:rolleyes:

KrazyHorse
30-03-2008, 14:38:07
Originally posted by JM^3
Basically, I think that a treaty has the same binding strength as a US law

That is where you're wrong.

Vincent
30-03-2008, 14:39:01
Law rox big time!

KrazyHorse
30-03-2008, 14:43:02
Originally posted by JM^3
KH: "Clause two provides that the Constitution, federal laws made pursuant to it and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be upheld. Even state constitutions are subordinate to federal law." is what Wiki says, if so treaties are only on equal footing with the constitution if they are made under it's authority. A treaty counter to the constitution is not under it's authority.

Jon Miller

Your paraphrase is INCORRECT.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...

The treaty needs to be made UNDER THE AUTHORITY OF THE UNITED STATES. Note the semicolon. No reference to the Constitution in that clause.

Your judges need to learn to read....

Vincent
30-03-2008, 14:43:56
Maybe there weren't enoght caps!

KrazyHorse
30-03-2008, 14:44:18
There is no basis in the law AS WRITTEN to deny the effects of an unconstitutional treaty.

That's simply something that somebody along the way made up.

KrazyHorse
30-03-2008, 14:44:39
Originally posted by Vincent
Maybe there weren't enoght caps!

MAYBE NOT.

Vincent
30-03-2008, 14:52:30
caps rox

zmama
30-03-2008, 15:37:39
lox rox

Vincent
30-03-2008, 16:17:20
I wonder if there's a 1337-keyboard available

mr_B
30-03-2008, 16:59:31
mr_Rox

JM^3
30-03-2008, 18:00:52
Originally posted by KrazyHorse
Your paraphrase is INCORRECT.



The treaty needs to be made UNDER THE AUTHORITY OF THE UNITED STATES. Note the semicolon. No reference to the Constitution in that clause.

Your judges need to learn to read....

It is still given in the same area as the laws made, or even below them.

Additionally, 2/3 of senate to 'pass' a treaty while 2/3 of senate and 2/3 house + 3/4 of states to pass an amendment. Common sense dictates the interpretation that is currently given (That treaties are below the constitution in strength).

Jon Miller

Vincent
30-03-2008, 18:20:51
What's that in percent?

mr_B
30-03-2008, 19:05:01
green o/c

Vincent
30-03-2008, 19:13:00
so much percent!

mr_B
30-03-2008, 19:29:02
you yourself are a percent

Vincent
30-03-2008, 19:44:21
like my mother!

mr_B
30-03-2008, 20:07:36
DO YOU KNOW MY MOTHER?
what a coincidence
what a coincidence

KrazyHorse
30-03-2008, 20:20:39
Originally posted by JM^3
It is still given in the same area as the laws made, or even below them.

Actually, it's given in a separate clause from either the Constitution or ordinary laws.

Dude, seriously: read it.

Laws must be made in pursuance of the Constitution. Treaties must be made under the authority of the US.

Unconstitutional laws are not allowed because laws must be "made in pursuance thereof". Unconstitutional treaties are fine as far as article VI is concerned. The Constitution and treaties are written in on equal footing. Ordinary laws are explicitly treated as subordinate.

KrazyHorse
30-03-2008, 20:23:42
Originally posted by JM^3

Additionally, 2/3 of senate to 'pass' a treaty while 2/3 of senate and 2/3 house + 3/4 of states to pass an amendment. Common sense dictates the interpretation that is currently given (That treaties are below the constitution in strength).

I don't particularly care what your common sense says. As far as I know there are absolutely no provisions made anywhere in the Constitution to deny the effect of an unconstitutional treaty.

Vincent
30-03-2008, 20:29:48
I know mothers galore, baby!

mr_B
30-03-2008, 20:32:30
hey hey vincent
vincent vincent hey!!

Vincent
30-03-2008, 20:38:04
wick you

mr_B
30-03-2008, 20:40:30
wicky rox

mr_B
30-03-2008, 20:45:17
hey hey vincent vincent vincent hey (http://uk.youtube.com/watch?v=hB6KY7Xnzd0)

mr_B
30-03-2008, 20:50:38
hey hey maroule maroule maroule hey (http://uk.youtube.com/watch?v=W-XsTqZjDKo)

Lurker the Second
31-03-2008, 02:00:50
Originally posted by Funko
They had an official survey into what country in the world had the best law.

1. Denmark
2. New Zealand
3. Tuvalu
4. Greece
5. Austria
6. Senegal
7. Germany
8. France
9. Surinam
10. United Kingdom

...

54. United States.

So that's that settled.

That's just not fair. Substitute Nevada for the U.S. and see what happens to that vote!

Lurker the Second
31-03-2008, 02:22:24
Much of this discussion is at cross-purposes. I you want to have a discussion about what the constitutional result should be for the issue presented, we can have a series of debates about a long line of Supreme Court decisions that made law. And before we get there, we can start with separation of powers and who makes, who enforces, and who interprets law. So we are back to Marbury vs. Madison. Lucky us.

Or we can talk about the politicization of the court.

Greg W
31-03-2008, 02:46:11
Or we can talk about boobies! :bounce: :bounce:

Greg W
31-03-2008, 02:47:49
http://fullof.info/geekpics/crash-boobies.jpg

Shining1
31-03-2008, 03:25:53
Blue Screen of Breasts!

Vincent
31-03-2008, 04:31:44
is that bill gates?

Greg W
31-03-2008, 05:12:25
I don't think so. It might be the pearly gates though. :p

TCO
31-03-2008, 08:14:56
That may be, but you've not come to grips with the issue of enabling law and of the complete lack of a Presidential power to use "memoranda" to dictate things to state courts.

TCO
31-03-2008, 08:16:44
Originally posted by Lurker the Second
Much of this discussion is at cross-purposes. I you want to have a discussion about what the constitutional result should be for the issue presented, we can have a series of debates about a long line of Supreme Court decisions that made law. And before we get there, we can start with separation of powers and who makes, who enforces, and who interprets law. So we are back to Marbury vs. Madison. Lucky us.

Or we can talk about the politicization of the court.

That's my fault. The ruling itself has a narrow rationale and does not touch on some of the bigger issues (strawmen) that I raised (because they're interesting and could be related).

KrazyHorse
31-03-2008, 15:03:14
Originally posted by TCO
That may be, but you've not come to grips with the issue of enabling law and of the complete lack of a Presidential power to use "memoranda" to dictate things to state courts.

Treaty is law. For ordinary law there's no two-step so why should there be for treaties?

TCO
31-03-2008, 18:29:06
Originally posted by KrazyHorse
Treaty is law. For ordinary law there's no two-step so why should there be for treaties?


A. While I'm not an expert on this, reading the opinion, looking at the old Holmes opinion, some things that Dyl has said: it seems that enabling laws are not a novel concept. I can think of some common sense reasons for this (for instance that such laws are needed as a method of practically fulfilling the demands of the treaty). Perhaps we need to learn more about this mon frere.

B. You STILL haven't addressed the issue of whether the President has the power to affect court proceedings with memoranda. How is this treaty requirement to be fulfilled in practice? Presidential memoranda don't make any sense as the President lacks the Power to make state courts do things in other legal settings.

KrazyHorse
31-03-2008, 20:25:43
Dude, I don't think that the Prez should have HAD to send a memo. The courts should have guarded the killer's rights without the Prez intervening. The memo is a red herring.

KrazyHorse
31-03-2008, 20:29:58
I understand the concept of an enabling law. However in the US' case one is not needed (again, if you assume that the law is intended to be read as written instead of as some other dude misread it).

Lurker the Second
31-03-2008, 21:27:05
Originally posted by KrazyHorse
However in the US' case one is not needed (again, if you assume that the law is intended to be read as written instead of as some other dude misread it).

Why do you say that? It seems to me to be quite the contrary. What evidence is there that the treaty was self-executing?

Oerdin
31-03-2008, 21:46:52
Text of treaty.

http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf

Saying we the undersigned "Agreed as follows" and then explicitly stating the date when the treaty would take effect for all signatories?

TCO
31-03-2008, 22:02:08
http://en.wikipedia.org/wiki/Treaty

Lurker the Second
31-03-2008, 23:46:53
That's not self-executing language. Nowhere near it.

Greg W
01-04-2008, 00:09:34
I think the self executing part would be where the constitution states that any treaties entered into become the supreme law of the land. To my non legal mind, that basically states that as soon as it's signed by the US, it becomes law.

Lurker the Second
01-04-2008, 02:42:06
So lets say Australia and New Zealand sign a treaty that says the countries are mutually concerned that the rare migratory asshat chicken is endangered and they therefore agree not to allow them to be killed within their respective borders. The treaty becomes effective on January 1, 2008. Prior to then, you could choke that chicken to your heart's desire with no legal consequences because it simply was not a crime to do so. Have you committed a crime if you choke the chicken on January 1? If so, what crime? With what consequences?

Greg W
01-04-2008, 03:30:20
Seriously, is it not blindingly obvious? I can't even believe that you need to ask that question.

If our constitutions said that treaties signed by our countries become law, then it's blindingly obvious that they have indeed broken a law, and thus committed a crime.

The consequence of which is that they have broken a law and should be dealt with like any other law breaker.

Why is that so hard to understand? I really don't get it (and maybe that's just me being a non law type person)...

However, the fact that you are giving a completely ridiculous example doesn't help your case? Argument? Question? Whatever it is.

Lurker the Second
01-04-2008, 03:39:54
What's ridiculous about my example? If your response is there's no such thing as an asshhat chicken, you should just leave the thread.

You never did answer the last two questions.

Greg W
01-04-2008, 03:52:57
I did actually answer both questions.

Greg W
01-04-2008, 03:54:27
Originally posted by Greg W
Answer to 2nd last question:
If our constitutions said that treaties signed by our countries become law, then it's blindingly obvious that they have indeed broken a law, and thus committed a crime.

Answer to last question:
The consequence of which is that they have broken a law and should be dealt with like any other law breaker.

Lurker the Second
01-04-2008, 03:59:34
Oh, I see, they have broken "a law" and should be dealt with like "any other lawbreaker". I'm guessing the chicken choker won't get to pick whether he gets a $45 fine or 45 years, will he? Which of the "any other lawbreakers" is he?

KrazyHorse
01-04-2008, 04:42:09
Originally posted by Lurker the Second
Why do you say that? It seems to me to be quite the contrary. What evidence is there that the treaty was self-executing?

The whole concept of requiring that a treaty be "self-executing" or that a separate law be signed to execute it has no basis as far as I can see it in the Const. as it's written.

Now, I understand that some judge in the 19th cent. made up some shit about that, but you'll forgive me if I laugh at that as an "interpretation".

As far as I can see, a treaty gets agreed to "under the authority of the US" (i.e. it's signed and ratified) and it instantly becomes part of the "supreme law of the land". It's not subordinate to the Constitution and doesn't require a separate law to activate it.

Again, I understand that there's a body of precedent against this. I simply think that the precedent was based on nothing more than what somebody thought should have been written (as opposed to a reasonable interpretation of what was written).

KrazyHorse
01-04-2008, 04:49:56
Originally posted by Lurker the Second
Oh, I see, they have broken "a law" and should be dealt with like "any other lawbreaker". I'm guessing the chicken choker won't get to pick whether he gets a $45 fine or 45 years, will he? Which of the "any other lawbreakers" is he?

Whichever one of those a judge decides is the correct penalty, barring guidelines or sentencing laws passed by the legislature (assuming that the treaty is not more specific on what to do to violators).

Greg W
01-04-2008, 05:06:22
Exactly. The first case would likely set a precedence for later cases if there was no specified penalty. However other similar (in the stated case, either animal cruelty or similar) penalties would obviously be taken into account.

What the penalty is has little bearing on whether it's law or not though, and whether a law has been broken, especially in the case in question (the Mexican dude).

Which is why I find it so hard to understand that it's not blindingly obvious. Maybe that's just me using common sense though, and heaven knows there's little enough of that present in the law.Originally posted by Lurker the Second
I'm guessing the chicken choker won't get to pick whether he gets a $45 fine or 45 years, will he?Dunno about in your country, but in mine, I am not aware of any case where the lawbreaker gets to pick what sentence or penalty he gets.

Vincent
01-04-2008, 05:13:22
What is the case (a fact) is the existence of atomic states of affairs.

Dyl Ulenspiegel
01-04-2008, 08:33:31
Originally posted by Lurker the Second
That's not self-executing language. Nowhere near it.

Access to consular protection not self-executing? You side with the SC clowns!

Lurker the Second
01-04-2008, 11:20:35
Originally posted by KrazyHorse


Now, I understand that some judge in the 19th cent. made up some shit about that, but you'll forgive me if I laugh at that as an "interpretation".



Your laughter is hollow, but leave that aside for the moment. If the Senate, in advising and consenting, and the President both rely on 200 years of precedent as to how things work, it seems to me futile to argue that precedent is irrelevant. It's hard enough to get treaties passed, but I guarantee you if the Senate thought all the treaties they were voting on were self-executing, they would rarely vote in favor of one. I can also guarantee you the Vienna Treaty would not have been adopted.

Also, you're too intelligent to make the entire foundation of your argument ("some judge in the 19th century" making shit up) something you haven't even begun to look at.

Dyl Ulenspiegel
01-04-2008, 11:27:59
Then quit ratifying treaties and add to your pariah status.

MDA
01-04-2008, 11:29:52
this makes more sense once I realized SC is Supreme Court and not South Carolina.

Why would Texas care what South Carolina thinks, right?

Dyl Ulenspiegel
01-04-2008, 11:31:40
Why would Texas care about anything from outside Texas?

Lurker the Second
01-04-2008, 11:56:21
Originally posted by Dyl Ulenspiegel
Then quit ratifying treaties and add to your pariah status.

The "hey why doesn't the U.S. pass laws to implement its treaty obligations" thread is over there --->

It's a political, not legal, discussion.

Greg W
01-04-2008, 11:57:40
Originally posted by Lurker the Second
Your laughter is hollow, but leave that aside for the moment. If the Senate, in advising and consenting, and the President both rely on 200 years of precedent as to how things work, it seems to me futile to argue that precedent is irrelevant. It's hard enough to get treaties passed, but I guarantee you if the Senate thought all the treaties they were voting on were self-executing, they would rarely vote in favor of one. I can also guarantee you the Vienna Treaty would not have been adopted.

Also, you're too intelligent to make the entire foundation of your argument ("some judge in the 19th century" making shit up) something you haven't even begun to look at. Then your constitution is hollow and pointless. Cos it specifies that treaties passed are law. It doesn't mention anything about needing to execute them.

Dyl Ulenspiegel
01-04-2008, 12:01:35
Originally posted by Lurker the Second
The "hey why doesn't the U.S. pass laws to implement its treaty obligations" thread is over there --->

It's a political, not legal, discussion.

The legal discussion is, of course, why do courts choose an extremely narrow construction of self-executing effect and thereby create black holes while the Constitution has a handy rule for the problem?

Ok, because of the politisation of the courts, their whiny submission to dumb politicians, and the pathetic level of legal education. But then, every legal discussion is political.

Lurker the Second
01-04-2008, 12:34:22
I have never been discussing why courts choose any particular construction of self-executing effect. I've simply been trying to explain the somewhat deep roots that underlie the Medellin decision.

And what "handy rule" does the Constitution have to resolve the problem? That the distinction between self-executing and non-self-executing treaties shouldn't exist because the "law is the law"? You're in Greg's camp, then. Congrats.

I agree that at some level every legal discussion is political, but explaining the history, rationale and precedent is not.

Greg W
01-04-2008, 12:50:27
The constitution shouldn't need to resolve the issue. They are already law. Why is there even talk about executing them? Where is that in the constitution? In fact, I'd argue that anything that poses as making them not law (aka some need to execute them) would be against the constitution.

Drekkus
01-04-2008, 14:14:50
:nervous:

Oerdin
01-04-2008, 14:24:12
Who exactly was the six who sided for this interpretation and who where the three desenters? I'm suspecting this is a Republicans for, Democrats against sort of situation in which case it would seem the majority was choosing their interpretation based on political factors. Or at least I'm suspecting so.

Dyl Ulenspiegel
01-04-2008, 14:28:50
Originally posted by Lurker the Second

And what "handy rule" does the Constitution have to resolve the problem? That the distinction between self-executing and non-self-executing treaties shouldn't exist because the "law is the law"? You're in Greg's camp, then. Congrats.


The handy rule is for self-executing treaties in Art 6 (2).

Construe self-exec. more broadly, and you can settle such issue through the handy rule.

The destinction has to be made, sure. Many treaties require specific implementation, but not this one.

Venom
01-04-2008, 14:33:37
Why run? It's fun watching an Australian short bus driver discuss law with an actual lawyer.

Lurker the Second
01-04-2008, 17:54:49
Originally posted by Oerdin
Who exactly was the six who sided for this interpretation and who where the three desenters? I'm suspecting this is a Republicans for, Democrats against sort of situation in which case it would seem the majority was choosing their interpretation based on political factors. Or at least I'm suspecting so.

You do understand that the court ruled against the Bush administration I hope. Regardless of that, it's not clear to me what "political factors" would be forcing the issue. Even if the court agreed with Medellin, he wasn't going free. He would have received "further judicial review" by means of the United States' own choosing, but the results of that review would have been a foregone conclusion.

Roberts, Kennedy, Scalia, Thomas and Alito were in the majority, with Stevens concurrring. Souter, Breyer and Ginsburg dissented.

Lurker the Second
01-04-2008, 18:06:01
Originally posted by Dyl Ulenspiegel
The handy rule is for self-executing treaties in Art 6 (2).

Construe self-exec. more broadly, and you can settle such issue through the handy rule.

The destinction has to be made, sure. Many treaties require specific implementation, but not this one.

I completely agree that if you construed self-execution more broadly, this case would have been settled differently. That is, in sum and substance, the dissent. I wouldn't characterize it as a "handy rule", though. So long as you agree "the distinction has to be made", you're just shifting the line where litigation is sharpest. But perhaps that's splitting hairs.

Let me also be clear that I'm not suggesting the majority's determination that the treaty is not self-executing is clearcut. The dissent makes a good argument that it is self-executing. But there is also a great deal of force behind the majority's conclusion to the contrary. Maybe Stevens is "rightest" of all.

Lurker the Second
01-04-2008, 18:10:07
Originally posted by Greg W
The constitution shouldn't need to resolve the issue. They are already law. Why is there even talk about executing them? Where is that in the constitution? In fact, I'd argue that anything that poses as making them not law (aka some need to execute them) would be against the constitution.

And you would be wrong. Every judge on the court and every party in the case recognized the distinction between non-executing and self-executing treaties. They just couldn't agree which category this treaty fell into.

KrazyHorse
01-04-2008, 18:54:51
Originally posted by Lurker the Second
[B] I can also guarantee you the Vienna Treaty would not have been adopted.

Why not? According to most of the sources I've read the US was quite insistent on the clause about requiring that prisoners be informed of their consular rights. The Senate would have balked at forcing states to inform foreigners of their consular rights despite the fact that it seemed very important for the US to get reciprocal guarantees of the same thing?

Also, you're too intelligent to make the entire foundation of your argument ("some judge in the 19th century" making shit up) something you haven't even begun to look at.

You give me too much credit. But on the other hand, I've apparently given others too much credit in terms of their ability and willingness to read a law and be able to tell the difference between a reasonable interpretation and an unreasonable one.

Tell me, Lurker: where do Miranda rights come from? How did the remedy of throwing out tainted evidence come about? Where was the Congressional approval for this?

The Vienna treaty is part of the supreme law of the land. A judge decided that to protect a suspect's rights under the 5th amendment it was necessary to throw out confessions which were not preceded by a statement of the suspect's rights. Similarly, the Vienna treaty provides consular rights to foreigners. It should have been up to the courts to decide how best to protect those rights (which should be given the same weight as Constitutional rights).

Lefty Scaevola
01-04-2008, 20:22:49
Originally posted by KrazyHorse
George, Texas can't choose to ignore duly-ratified treaties.
. It does not ignore them. If anybody had bothered to check what the actual case was about, it was about procedural waiver. The defendant had never neither requested a consular meeting nor raised any issue about not having one or not not being informed about the right until after both trial and first appeal were over, despite being represented by cousel. A very standarderd rule is that if you do not raised certain time in a case you waive it. Most rights must be claim and most error challenged at trial or post trial before appeal, to avoid waisting court resources. If you allow them to be raised at anytime, parites can lay behind the log with one or two, taking there chances at a trial, then getting a re-do if they lose. The procedural rules of when issues and errors must be raised in a court proceeding are inherently local to the court systems. They are almost never cover by external sources such a treaties or the bill of rights or the magna charter. they are part of the internal adminstration of a court system. Texas courst held (correctly) held that the ICoJ has not jurisdiction of the another courts procedral rules of when you need to claim a court error or be deemed to have waived it. Likewise the SCOTUS held that the president, as excutor of treaties had no power to super cede that rule.
Texas does not deny the treaty, it merely required a party to claim its rights or complain of an court error in applying the right by a certain time in a court proceeding.

Dyl Ulenspiegel
01-04-2008, 20:25:32
And a texas court decides the scope of the ICJ's jurisdiction.

Can we please leave the law to the bus drivers?

Venom
01-04-2008, 20:36:10
And the austrian nightmare fires back. This is a titanic confrontation. Like watching a retarded King King battle a mentally handicapped Godzilla.

Vincent
01-04-2008, 20:38:41
Rather a gay coiffeur mud fight

Dyl Ulenspiegel
01-04-2008, 21:07:20
gay coiffeur popcorn fight

TCO
01-04-2008, 22:27:51
I LOOOOVE that this clips the ICJs wings. They are not in charge of the US state courts. Fuck them. ha ha motherfucking ha.

Greg W
02-04-2008, 01:00:58
Originally posted by Lurker the Second
And you would be wrong. Every judge on the court and every party in the case recognized the distinction between non-executing and self-executing treaties. They just couldn't agree which category this treaty fell into. I am curious. Where in the constitution does it talk about the need to execute a treaty? I don't know your constitution, so I am not aware of the nuances of it. It just sounds funny to me that they talk about treaties becoming law, but don't mention in the same breath that they are law "when they are executed". Just curious...

Greg W
02-04-2008, 01:02:06
Oh, and I assume Venom meant King Kong. Unless he's talking about some giant boxing promoter!

Oerdin
02-04-2008, 01:38:19
Originally posted by Lurker the Second
You do understand that the court ruled against the Bush administration I hope. Regardless of that, it's not clear to me what "political factors" would be forcing the issue. Even if the court agreed with Medellin, he wasn't going free. He would have received "further judicial review" by means of the United States' own choosing, but the results of that review would have been a foregone conclusion.

Roberts, Kennedy, Scalia, Thomas and Alito were in the majority, with Stevens concurrring. Souter, Breyer and Ginsburg dissented.

Yes, I am aware that President Bush was arguing for implementation of the treaty which is a very good thing. Seems there was some key cross overs in the decision.

The big political factor I've seen argued on right wing blogs has been one of preserving US sovereignty and states rights via the 10th amendment. Toss in a general phobia of all things foreign and a dislike for federal authority and you have the position of the libertarian branch of the Republican Party which Roberts and a few others are vocal supporters of.

Lurker the Second
02-04-2008, 03:15:31
Ok, I wasn't sure what you meant by "political factors". What you've defined it as is consistent with Dyl's observation that all legal discussions involve politics at some level. And as I said, I agree with that. I would describe it more as a political philosophy rather than political "factors", but it's the thought that counts.

Oerdin
02-04-2008, 05:25:41
I still thinking trying to twist legal decisions to fit your personal political asperations/philosophy is wrong.

The other big thing that comes to mind is if an honest position was taken, I.E. the one Bush and every other country has taken, then so where around 50 murder cases in Texas would have been thrown out due to local authorities in Texas not fulfilling their treaty obligations.

I do think justices did a lot of squirming to find a legal reason to prevent those cases getting invalidated. The honest thing to do would be to force Texas to uphold the law even if it meant throwing cases out.

TCO
02-04-2008, 16:09:28
I'm not sure that they really are. Other than in the context of the law is the law...rather than a pravda-like belief that truth is whatever is good for the Party.

Greg W
03-04-2008, 08:12:18
Still waiting for an answer to my question by the way... :cute:

TCO
05-04-2008, 01:54:37
fucking stacking debate loser. Eric Olsen reamed you good on the threaded forum.

TCO
05-04-2008, 02:52:19
http://www.fed-soc.org/debates/dbtid.18/default.asp

http://www.fed-soc.org/debates/dbtid.17/default.asp