tdaxp

"International Law v. United States," by Andrew McCarthy, Commentary, February 2006, http://www.commentarymagazine.com/Production/files/McCarthy_0206.html (from The Corner).

Here's why I'm not worried about the Hamdan decision (and it's not just that the Supreme Court smacked around "international law" the day before).

First, note what the intellectual right-wing was saying early this year: that the "Law of Nations" described in the Constitution should be narrowly interpreted.

Still, the framers held firm to the imperatives of self-determination and limited interference. The Constitution prescribed a system of enumerated powers, sufficient to secure the nation and promote commerce but respectful of individual choice and local sovereignty. Any authority not expressly assigned to one of the three federal branches was reserved to the states and the people. If new law was needed or if current law required mending, the divisions of authority were reasonably clear: matters of immediate, parochial concern were to be taken up by representatives and courts at the state and local level; the federal governmenta sliver of the present-day behemothwas reserved for those relatively few issues that transcended state boundaries.

...

The first was the law of nations. In a very useful recent book, Jeremy Rabkin explains that this term of art, culled from Blackstones Commentaries, related specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation) as well as to the need to provide safe harbor for lawful foreign nationals, including diplomats. And, finite as this was, the framers constrained it still further. Under Article I of the Constitution, the law of nations was to have domestic application only if Congress chose to define and punish offenses against itand regardless of what other nations might regard as a violation.

Bench Memos and Opinio Juris celebrate the Supreme Court's latest rejection of "international law" and the UN's International Court of Justice in Sanchez-Llamas v. Oregon

... the ICJ has interpreted the Vienna Convention to preclude the application of the procedural default rule to Article 36 claims. The LaGrand Case... and the Case Concerning Avena and other Mexican Nations... were brought to the ICJ by the governments of Germany and Mexico, respectively, on behalf of several of their nationals facing death sentences in the United States. The foreign governments claimed that their nationals had not been informed of their right to consular notification. They further argued that application of the procedural default rule to their nationals' Vienna Convention claims failed to give "full effect" to the purposes of the Convention, as required by Article 36. The ICJ agreed, explaining that the defendants had procedurally defaulted their claims "because of the failure of the American authorities to comply with their obligation under Article 36."... Application of the procedural default rule in such circumstances, the ICJ reasoned, "prevented [courts] from attaching any legal significance" to the fact that the violation of Article 36 kept the foreign governments from assisting in their nationals' defense...

Under our Constitution, "[t]he judicial Power of the United States" is "bested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Art. III, § 1. That "judicial Power... extend[s] to... Treaties." Id §2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty "to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law "is emphatically the province and duty of the judicial department," headed by the "one supreme Court" established in the Constitution.

"Federal Appeals Court Rules Against Cross," Christian News Wire, 26 June 2006, http://www.christiannewswire.com/news/64487411.html.

The latest example of anti-democratic Judicial Tyranny is out of California (where else), where...

A three-member panel of the 9th Circuit Court of Appeals ruled on June 21, 2006, that the majestic 30-foot cross atop Mt. Soledad in San Diego must be removed by August 1, or the city will face $5,000 per day fines.

Atheists began a crusade to remove the cross when they filed a lawsuit against the city 17 years ago. The cross, located in a city-owned park in the Pacific Beach area with a breathtaking 360° view of the California coastline, was built in 1953 as a Korean War Veteran Memorial. Christian groups found it a popular site for Easter sunrise services and other events.

Mt Soledad Veterans Memorial Cross

"White Men Can't Help It," by Michael Orey, Business Week, 15 May 2006, pg 54, http://www.businessweek.com/magazine/content/06_20/b3984081.htm

"One can only hope...," by Leonard Powers, Business Week, 5 June 2006, pg 17, http://www.businessweek.com/magazine/content/06_23/c3987014.htm

"Sociology is the Mississippi of the Social Sciences. No matter how bad your field it, sociology is always worse."
- Overheard

Enter the magician. Sociologist William T. Bielby is the leading courtroom proponent of a simple but powerful theory: "unconscious bias." He contends that white men will inevitably slight women and minorities because they just can't help themselves. So he tries to convince judges that no evidence of overt discrimination -- no smoking gun memo, for instance -- is needed to prove a case. As Allen G. King, an employment defense attorney at the Dallas office of Littler Mendelson, puts it: "I just have to leave you to your own devices, and because you are a white male," you will discriminate.

"Apple dealt loss in Apple v. Does trade secret case," by Ryan Paul, Ars Technica, 27 May 2006, http://arstechnica.com/news.ars/post/20060527-6933.html.

I love my iPod, and I'd love a MacBook, but I love freedom more.

A California appeals court judge has ruled in favor of a petition filed by the EFF that frustrates Apple's attempt to force rumor sites AppleInsider and Powerpage to reveal their sources. In 2004, web site AppleInsider published an "exclusive" account of a new Apple product alleged to be in development, a breakout box for GarageBand dubbed Asteroid (presumably because it allowed you to rock. Rimshot!).

The ruling concludes that trade secrets do not categorically transcend freedom of the press, that there is no relevant legal distinction between journalistic blogging and journalism with regards to the shield law, and that Apple's attempt to subpoena the e-mail service provider of one of the sites was a violation of the federal Stored Communications Act.

"Sounds like the Big cheese admires Weeramanty," by Mark Safranski, tdaxp, 26 September 2005, http://tdaxp.blogspirit.com/archive/2005/09/23/use-of-force.html.

"Ginsburg discusses court integrity, Congress on campus visit," by Meredith Grunke, Daily Nebraskan, 10 April 2006, http://www.dailynebraskan.com/media/storage/paper857/news/2006/04/10/News/Ginsburg.Discusses.Court.Integrity.Congress.On.Campus.Visit-1803033.shtml?norewrite200604101541&sourcedomain=www.dailynebraskan.com.

Note: My source for this post is the Daily Nebraskan, the occasionally incoherent student publication of the University of Nebraska - Lincoln. Most of their time, such as with their publication of my dialog with Dr. Frances Kaye over ROTC, they get things right. Occasionally they don't. I am assuming that their reporting of a recent speech by a Supreme Court justice on our fair campus is accurate.

"Citing Foreign Law," Washington Post, 21 March 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/03/20/AR2006032001674.html (from NRO's Bench Memos).

I've applauded Chief Justice Roberts successful attack on so-called international law. Roberts' victory is all the more encouraging because of the division of the Supreme Court on a closely related matter: foreign law.

Foreign law, which has been attacked by the Attorney General and Justice Scalia, differs from "international law" in that it is actually law, somewhere. While there was once a real international law based on the Catholic Church, in modern times "international law" means at best the socialization of states and at worst a strange morality.

"Rumsfeld v. FAIR," by John Roberts et al, Supreme Court of the United States, 6 March 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1152.pdf.

John Roberts isn't just right on international law. He also is ready to lead the Court of a nation in an unlimited war.

An cautiously alarmed post at Bench Memos, a blog of the the libertarian/conservative National Review, made me kick myself for not reading the Rumsfeld v. FAIR decision earlier. Rumsfeld v. FAIR is the case that challenges the Solomon Amendment, which denied federal funds to schools that prohibit ROTC from recruiting on campus...

"Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit," by John Roberts et al, Supreme Court of the United States, 21 February 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1084.pdf.

While not quite as succinct as Justice Antonin Scalia's criticism of international law, Chief Justice John Roberts has officially put "international law" in its place

John Roberts: Lord of International Law

Ladies and gentlemen, we got him in.

By a 58-42 vote, Samuel Alito has become the 110th Justice of the United States Supreme Court. Alito is also the fifth Catholic judge currently sitting -- joining Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Chief Justice John Roberts.