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Tuesday, February 22, 2005

The Specter of Internationalism

Marbury v. Madison, in no uncertain terms, declares that it is within the province of the judiciary to say what the law is. If treaties are to be used as rules of decisions in enforcement cases, surely it is the province of the judiciary, under Marbury, to explain that to us.

In yesterday's Medillin debate, though, Prof. Damrosch had no constitutional explanation for why the judgments of the Supreme Court should be displaced in favor of the judgments of the International Court of justice. She put forward an instrumentalist internationalist argument: Treaties only work if both sides are using uniform interpretations, and those interpretations should come from international adjudicators.

Sensible thought. The only problem is that the Constitution vests all judicial power in the Article III courts, not in the Article III courts and those other courts, domestic or foreign, which may arise out of convenience.

It is true that the Article III courts have been willing to abdicate some judicial authority to executive agencies. The agency situation, though, can be easily distinguished. Agencies live and die by their organic acts. It therefore makes sense to assume that they have a heightened understanding of the meaning of those acts. Secondly, even where agencies are allowed a first crack at stating what the law is, they are still reviewed for Chevron reasonableness---NOT left to make final decisions in the name of instrumentalism. Lastly and most importantly, the deference to executive agencies still retains all judicial authority within the Constitutional order. It merely shifts power from Article III to Article I. As serious a matter as that is, it is nothing near the shift of power that occurs when we defer to authorities which exist outside of the constitutional order, and abide by Belgian rulings.

But we are told that to be good international citizens we need to abide by neutral, objective treaty readings. This reliance on functionalism at the expense of the power allotments of the constitution has been in vogue in certain circles of late. Justice Breyer looks first to efficacy and then to the Constitution (as even his staunchest admirers will point out). Justice Kennedy looks outside our constitutional order to find a good-global-citizenship rationale for his opinion in Lawrence.

Internationlist tendencies are nothing new. They have sprouted from the middle ages, always with a claim that efficacy clearly will follow from ceding authority to international tribunals and organizations. The bulwark against this maneuvering is supposed to be the U.S. Constitution, which lays out the definitive framework for power allotments in our society. The Constitution should be the first and last authority used: It need bow to the altar of utilty.

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