International Law 'Vs.' the American Constitution

By Rabkin, Jeremy | The National Interest, Spring 1999 | Go to article overview

International Law 'Vs.' the American Constitution


Rabkin, Jeremy, The National Interest


When major programs of President Roosevelt's New Deal were blocked by the Supreme Court during the 1930s, Roosevelt insisted that the Court must learn to apply a more "modern" view of the Constitution. Soon enough, a reshaped Court did adopt a much more permissive approach and scholars who liked the result spoke of a "living Constitution." We heard more about "evolving standards" and a "living Constitution" from defenders of judicial activism in the 1960s and 1970s. It seemed to offer the prestige of a higher law without the inconvenience of a fixed law. But sometimes we really want a constitution to have fixed and reliable limits. So, for example, many of those who once praised the "living Constitution" have, in recent months, invoked with great solemnity the "law" of impeachment, which, they say, was "fixed" by the Framers of the Constitution in the eighteenth century.

If nothing else, America's months of debate about impeachment remind us that many Americans care deeply about "the rule of law" - and disagree among themselves on what it means. Even those most devoted to defending President Clinton have appealed to arcane legal arguments about the proper application of the Constitution's provisions on impeachment.

But our own law may not be the only law that determines what happens in this country. At the very moment when Americans were so preoccupied with debates about the meaning of perjury or the requirements for impeachment, a series of events around the world offered a foretaste of what may become the next subject of heated legal debate for the United States: the proper reach of international law.

In Britain, the House of Lords decided last December that Augusto Pinochet could be held for extradition to Spain, where a magistrate sought to try the former Chilean dictator for tortures and murders committed by the Chilean government during Pinochet's period as chief of state. Meanwhile, halfway around the world, the government of Australia struggled to defend itself before a UN authority, which condemned the Australian government for allowing a uranium mine to be developed in the vicinity of an Australian national park. And here in the United States, the U.S. Supreme Court, after repeated displays of its own impatience with judicial second-guessing of capital sentences, suddenly ordered a halt to an execution in Texas and agreed to hear an appeal claiming that capital punishment in this case would violate international standards.

All these cases reflect the deepening insinuation of international law into the internal affairs of sovereign states. More than that, they raise sharp questions about the status of this emerging body of law. No one of these episodes marks a historic turning point in itself, but they are all straws in the wind. Lots of things are now rustling in that wind and it is gaining in force. We used to think that the Constitution would serve as a windbreak, but that is no longer so clear. To gauge the extent of the challenge it is necessary to look briefly first at the theoretical assumptions on which our Constitution was grounded, and in light of which it used to be interpreted on matters of international law.

The Traditional American View and its Modern Rival

Resistance to international impositions has a long history in American political and constitutional thinking. Indeed, the United States was founded on a particular understanding of the limited authority of an external law applied to American society. For the American Revolution was a rebellion against the imposition of transnational law, the precise issue being whether the British Parliament possessed the rightful authority to make laws for the internal affairs of the colonies. The colonists insisted that, as they had never been represented in the British Parliament, they could not accept such authority. The British disagreed, and so brought on a revolutionary conflict.

Thus, when the Declaration of Independence asserts the "self-evident" truth that all men are "endowed by their Creator with certain unalienable rights", it proceeds almost at once to the conclusion that governments "derive their just powers from the consent of the governed. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

International Law 'Vs.' the American Constitution
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.