07 May McCain Equates International Law (in Constitutional Interpretation) as an “Airy Construct”
Some clues to the types of judges a President McCain might appoint can be found in his speech today. Readers of this blog might be interested in McCain’s criticism of Roper v. Simmons and its musings on international law.
Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and “evolving standards of decency.” These meditations were in the tradition of “penumbras,” “emanations,” and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.
He is basically right about the inherent problems of using international law to interpret the U.S. Constitution in the rights context. But I somehow doubt a President Obama (or President Clinton) would share these sentiments.
Prof. Ku wrote: “[McCain] is basically right about the inherent problems of using international law to interpret the U.S. Constitution in the rights context.”
Can you explain your assertion? What are these inherent problems? The fact that the Constitution is a treaty according to both its text and original understanding (see Martin, The Constitution as Treaty (Cambridge Univ. Press 2007)) requires that its text be construed in conformity with the United States’ other international legal obligations per the law governing treaty interpretation.
Francisco Forrest Martin
But I thought the drafters of the US Constitution specifically intended that the US be a good international citizen when they created the provisions which allowed for the influence, and incorporation, of international law into US domestic law. It seems to me that McCain has some difficulty with not only the words of the Constitution but also its spirit. His comment has suggestions of the “exceptionalism” doctrine that has sustained Bush in his illegal actions/activities.
So what if the law does not facilitate what a politician wants to do or compliance therewith requires a little hard work? I thought the rule of law requires that the law apply to governed and governors alike.
Garth Cartledge