NationStates Jolt Archive

A law-school bound friend brought up an interesting point in light of some comments recently made by Tom Delay.

Delay apparently finds it to be a horrible thing that international law has anything at all to do with court decisions. Now, I could be wrong, but I do believe that treaties count as international law. As per Article VI, Clause 2 of the constitution, treaties essentially hold the same weight as the constitution itself in law:

Clause 2: 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.

In other words, the US could make a treaty which would then override a part of the Constitution, and would then be bound by it (as it was explained to me).


There are two things I would like to point out that would come as a result of this:

1) Tom Delay is full of crap and apparently doesn't bother with things like, you know, the supreme law of the land.

2) Those (generally fundamentalist Christians) who argue that there is no separation of church and state need to tread *very* lightly. Even if they were right in that statement, the Treaty of Tripoli would override that which came before it, thus making it *incredibly* clear that the US is not a "Christian nation" - something which is now explicit in the "supreme law of the land."

They are the supreme law of the land under the Constitution. If it violates the Constitution then it's null and void. Also, I don't think the judges were referencing any treaties the US has entered into when they made their decision. Instead they were referencing european law itself. Also, read this for another look at their argument.

http://www.thesakeofargument.com/archives/001040.html


Also, it says little to nothing about SCOTUS. That clause references 'Judges in every State.' SCOTUS really doesn't qualify.

What does this have to do with eating babies?

The Crusaders - p.41-42 Rolling Stone April 21, 2005
...
Meet the Dominionists - biblical literalists who believe God has called them to take over the U.S. government. As the far-right wing of the evangelical movement, Dominionists are pressing an agenda that makes Newt Gingrich's Contract With America look like the Communist Manifesto. They want to rewrite schoolbooks to reflect a Christian version of American history, pack the nation's courts with judges who follow Old Testament law, post the Ten Commandments in every courthouse and make it a felony for gay men to have sex and women to have abortions. In Florida, when courts ordered Terri Schiavo's feeding tube removed, it was the Dominionists who organized round-the-clock protests and issued a fiery call for Gov. Jeb Bush to defy the law and take Schiavo into state custody. Their ultimate goal is to plant the seeds of a "faith-based" government that will endure far longer than Bush's presidency - all the way until Jesus comes back.
"most people hear them talk about a 'Christian nation' and think, 'Well, that sounds like a good, moral thing,' says the Rev. Mel White, who ghostwrote Jerry Falwell's autobiography before breaking with the evangelical movement. "What they don't know - what even most conservative Christians who voted for Bush don't know - is that 'Christian nation' means something else entirely to these Dominionist leaders. This movement is no more about following the example of Christ than Bush's Clean Water Act is about clean water."
The godfather of the Dominionists is D. James Kennedy, the most influential evangelical you've never heard of. A former Arthur Murray dance instructor, he launched his Florida ministry in 1959, when most evangelicals still followed Billy Graham's gospel of nonpartisan soul-saving. Kennedy built Coral Ridge Ministries into a #37 million-a-year empire, with a TV-and-radio audience of 3 million, by preaching that it was time to save America - not soul by soul but election by election. After helping found the Moral Majority in 1979, Kennedy became a five-star general in the Christian army. Bush sought his blessing before running for president - and continues to consult top Dominionists on matters of federal policy.
"Our job is to reclaim America for Christ, whatever the cost," Kennedy says. "As the vice regents of God, we are to exercise godly dominion and influence over our neighborhoods, our schools, our government, our literature and arts, our sports arenas, our entertainment media, our news media, our scientific endeavors - in short, over every aspect and institution of human society.
...
"We're going to turn you into an army of one," Gary Cass, executive director of Reclaiming America, promises activists at one workshop held in Evangalism Explosion Hall. The Dominionists also attend speeches by supporters like Rep. Katherine Harris of Florida, who urges them to "win back America for God."
...
"The First Amendment does not say there should be a separation of church and state," declares Alan Sears, president and CEO of the Alliance Defense Fund, a team of 750 attorneys, trained by the Dominionists to fight abortion and gay marriage.
..."We have a right, indeed an obligation, to govern," says David Limbaugh, brother of Rush and author of "Persecution: How Liberals Are Waging War Against Christianity."
..."Activist judges have systematically deconstructed the Constitution," roars Rick Scarborough, author of "Mixing Church and State." "A God-free society is their goal!"
Activist judges, of course, are precisely what the Dominionists want. Their model is Roy Moore, the former Alabama chief justice who installed a 5,300-pound granite memorial to the Ten Commandments, complete with an open Bible carved in its top, in the state judicial building.
...Activists at the conference pose for photographs beside the rock and have circulated a petition urging President Bush to appoint Moore - who once penned an opinion calling for the state to execute "practicing homosexuals" - to the U.S. Supreme Court.
...
It helps that Dominionists have a direct line to the White House: The Rev. Richard Land, top lobbyist for the 16-million-member Southern Baptist Convention, enjoys a weekly conference call with top Bush advisors including Karl Rove. ... He takes particular aim at the threat posed by John Lennon, denouncing "Imagine" as a "secular anthem" that envisions a future of "clone plantations, child sacrifice, legalized polygamy and hard-core porn."
...
In the conference's opening ceremony, the Dominionists recite an oath they dream of hearing in every classroom: "I pledge allegiance to the Christian flag, and to the Savior for whose kingdom it stands. One Savior, crucified, risen and coming again, with life and liberty for all who believe."
Cass urges conference-goers to stack school boards with Dominionists. "The most humble Christian is more qualified for office than the best-educated pagan," says Cass, an anti-abortion activist who ledd a takeover of his school district's board in San Diego.
...
Amway founder Rich DeVos, a Kennedy ally who's the leading Republican contender for governor of Michigan, has tossed more than $5 million into the collection plate. Jean Case, wife of former AOL chief Steve Case – whose fortune was made largely on sex-chat rooms – has donated $8 million. And Tom Monaghan, founder of Domino’s Pizza, is a major source of cash for Focus on the Family, a megaministry working with Kennedy to eliminate all public schools.
...
Kennedy has also created the Center for Christian Statesmanship, which trains elected officials to “more effectively share their faith in the public arena.” Speaking to the group, House Majority Leader Whip Tom DeLay – winner of Kennedy’s Distinguished Christian Statesman Award - called Bush’s faith-based initiatives “a great opportunity to bring God back into the public institutions of our country.”
…
The most vivid proof of the Christianizing of Capitol Hill comes at the final session of Reclaiming America. Rep. Walter Jones, a lanky congressman from North Carolina, gives a fire-and-brimstone speech that would have gotten him laughed out of Washington thirty years ago. In today’s climate, however, he’s got a chance of passing his pet project, the Houses of Worship Free Speech Restoration Act, which would permit ministers to endorse political candidates from their pulpits, effectively converting their tax-exempt churches into Republican campaign headquarters.
BACK CONSERVATIVE AGENDA OR LOSE COURT, EVANGELICAL LEADERS HINT
Peter Wallsten, L.A. Times (Week of April 23, 2005)

WASHINGTON – Evangelical Christian leaders, who have been working closely with senior Republican lawmakers to place conservative judges in the federal courts, have also been exploring ways to punish sitting jurists and even entire courts viewed as hostile to their cause.
An audio recording obtained by the Los Angeles Times features two of the nation’s most influential evangelical leaders, at a private conference with supporters, laying out strategies to rein in judges, such as stripping funding from their courts in an effort to hinder their work.
The discussion took place during a Washington conference last month that included addresses by House Majority Leader Tom DeLay, R-Texas, and Senate Majority Leader Bill Frist, R-Tenn., who discussed efforts to bring a more conservative cast to the courts.
…
“There’s more than one way to skin a cat, and there’s more than one way to take a black robe off the bench,” said Tony Perkins, president of the conservative Family Research Council, according to an audiotape of a March 17 session. The tapes was provided to the L.A. Times by the advocacy group Americans United for Separation of Church and State.
…
“We set up the courts. We can unset the courts. We have the power of the purse,” DeLay said at an April 13 question-and-answer session with reporters.
The leaders present at the March conference, including Perkins and James Dobson, founder of the influential group Focus on the Family, have been working with Frist to eliminate the filibuster for judicial nominations, a legislative tool that has allowed Senate Democrats to stall 10 of President Bush’s nominations.
Frist is scheduled to appear, via a taped statement, during a satellite broadcast to churches nationwide Sunday the Family Research Council has organized to build support for the Bush nominees.
…
“What they’re thinking of is not only the fact of just making these courts go away and re-creating them the next day but also defunding them,” Perkins said.
He said that instead of undertaking the long process of trying to impeach judges, Congress could use its appropriations authority to “just take away the bench, all of his staff, and he’s just sitting out there with nothing to do.”
These curbs on courts are “on the radar screen, especially of conservatives here in Congress,” he said.
Dobson, who emerged last year as one of the evangelical movement’s most important political leaders, named one potential target: the California-based 9th U.S. Circuit Court of Appeals.
“Very few people know this, that the Congress can simply disenfranchise a court,” Dobson said. “They don’t have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th Circuit doesn’t exist anymore, and it’s gone.”
…
A spokesman for DeLay declined to comment.
…
Claiming a role by the movement in the GOP gains, Dobson concluded: “We’ve got a right to hold them accountable for what happens here.”
…
Dobson chided Frist, a likely 2008 presidential contender, for not acting sooner on the filibuster issue, urging “conservatives all over the country” to tell Frist “that he needs to get on with it.”
Dobson also said Republicans risk inflicting long-term damage on their party if they fail to seize the moment - a time when Bush still has the momentum of his re-election victory – to transform the courts. He said they had just 18 months to act before Bush becomes a “lame-duck president.”
…
As part of the discussion, Perkins and Dobson referred to remarks by Dobson earlier this year at a congressional dinner in which he singled out the use by one group of the cartoon character SpongeBob Squarepants in a video that Dobson said promoted a homosexual agenda.
Dobson was ridiculed for his comments, which some critics interpreted to mean the evangelist had determined the cartoon character was gay.
Dobson said the beating he took in the media, coming after his appearance on the cover of newsmagazines hailing his prominence in Bush’s reelection, proved that press will only seek to tear him down.
“This will not be the last thing that you read about that makes me look ridiculous,” he said.

Straughn, put that under a link, please, for crying out loud.

Straughn, put that under a link, please, for crying out loud.
I'll point something out to you. I pay for the content that i get in procuring the subject matter and then i archive it on a disc. It saves me a dungload of time just cut&pasting after the transcription. If i didn't transcribe, then i could post link but very often i've found that source sites require subscriptions and the like, and frankly, there's a great lot of lazy folk here who never bother going that far with it in the first place. I go thorough the trouble of listing source for anyone else that wants to go further, anyway.

So i think i'll just keep doing what i'm doing 'lest a mod finds a problem with it, thanks, very much. ;)
Also, it makes the subject matter less abstract to the thread continuity.

They are the supreme law of the land under the Constitution.

Where does it say that?

What it basically says (prepositional phrases removed) is that the Constitution and treaties are both the supreme law of the land. It only states that laws have to be made under the Constitution, not treaties.

Also, I don't think the judges were referencing any treaties the US has entered into when they made their decision.

In some decisions, they do.

Meanwhile, the particular case he is apparently up in arms about is the execution of minors and international law was mentioned as part, but not all of the decision. In many decisions, the Supreme Court has talked about how international law differs from ours, but it doesn't matter. Apparently, Tom Delay thinks we should be able to put children in an electric chair. I can't think of too many people who would support that - especially when you consider the fact that, even when tried as adults, children do not get the same legal protections.

Instead they were referencing european law itself.

(a) A huge bulk of our law is based on English common law. It is not encoded anywhere, but is upheld by precedent. Anyone attempting to make comments about the law should be aware of this.

(b) Saying, "This is our decision and it happens to agree with most of the rest of the world" doesn't equate to basing American law on European law.

(c) We have signed treaties (which are the supreme law of the land) which include human rights stipulations which would disallow the execution of children.

Also, it says little to nothing about SCOTUS. That clause references 'Judges in every State.' SCOTUS really doesn't qualify.

SCOTUS is to uphold the supreme law of the land, last I checked.

So i think i'll just keep doing what i'm doing 'lest a mod finds a problem with it, thanks, very much. ;)
Also, it makes the subject matter less abstract to the thread continuity.

Fine, just be prepared that people will be more likely to be put off of reading cut&pasted things, as huge cut&pasted posts are not good etiquette.

It states that treaties and the constitution are superior to the laws and constitutions of states.

I would wager that, as the Supreme Court interprets the constitution, it would (has? does?) consider the constitution of the US to be superior to treaties made by the US, there are numerous merits to this if you'd like to discuss them.

In any case, unless explicitly declared in conflict with the constitution by the SCOTUS, the treaty of tripoli does bind all state and (it can be assumed) federal laws.

Fine, just be prepared that people will be more likely to be put off of reading cut&pasted things, as huge cut&pasted posts are not good etiquette.
I agree my etiquette is of a fluctuating nature, so i'll elucidate a smidge ...
often in the course of argument, people will ignore the subject matter for sake of stigma, often polarized/rhetoricized stigma, without actually reviewing subject matter for consideration. The argument follows the deviation of semantics and disregards the veracity of source material involved.
After running into that WAY too many times, with repeated thread postings/catalyzing, i ended up thinking it would just kinda serve to put it on the table and people don't have to try and assassinate messengers.

If treaties and the constitution were equal, then the constitution couldn't be amended to reduce or limit the scope of treaties...right?

Since the constitution can limit the scope of treaty-making power and the scope of the treaties themselves, then it's obvious that treaties are not equal to the constitution.

Suppose the US entered into a treaty with Tithia. and a provision of that treaty declared that Tithian citizens visiting the US could not attend any house of worship in the US in which the Tithian flag was not displayed. Duh.

BTW dempublicants, did you read the article I linked to?

If treaties and the constitution were equal, then the constitution couldn't be amended to reduce or limit the scope of treaties...right?

Wrong. The Constitution can be amended to change its own wording. When there is a change made by an amendment, the latest takes precedence. This would be the same, according to the wording of that clause, for treaties (ie. the Constitution could be amended to reduce/limit the scope of treaties).

Suppose the US entered into a treaty with Tithia. and a provision of that treaty declared that Tithian citizens visiting the US could not attend any house of worship in the US in which the Tithian flag was not displayed. Duh.

That would suck for the Tithians, wouldn't it? After all, that treaty would be the supreme law of the land.

BTW dempublicants, did you read the article I linked to?

Yes, I find it rather interesting that they focus on the arbitrary age at which we declare a person an adult, and ignore the fact that, even when trying a juvenile as an adult, they are not given the same protections as a real adult.

international treaties, ratified by a government, are superior to Any local law, even the pressiousss constitution.

Treaty = Contract = Binding

If a nation does not honour its contracts, it loses credibility and face, what there may be left of it.

The Constitution is the supreme law of the land.... Treaties made by the proper constitutional authority (US Legislative house) are also the supreme law of the land under the Constitution... Technically, the Constitution can circumvent international treaty (for example a treaty which outlawed freedom of the press, would be non-binding)... In all, the Constitution is the (supposedly) heaviest legal authority in the land.... As it defines all powers of the US government (includings its powers to make treaties).

The Constitution is the supreme law of the land.... Treaties made by the proper constitutional authority (US Legislative house) are also the supreme law of the land under the Constitution... Technically, the Constitution can circumvent international treaty (for example a treaty which outlawed freedom of the press, would be non-binding)... In all, the Constitution is the (supposedly) heaviest legal authority in the land.... As it defines all powers of the US government (includings its powers to make treaties).

Here's the question, is that due to practice? According to the actual wording used in the Constitution, they are both equally the supreme law of the land, with laws being held to a Constitutional basis.

Here's the question, is that due to practice? According to the actual wording used in the Constitution, they are both equally the supreme law of the land, with laws being held to a Constitutional basis.

You're forgetting that the Constitution binds government (or at least it is supposed to)... As such, in practicallity it is supreme even over the treaties... Since the treaties are an operation of the constitutionally formed government. It is pratical that the Constitution is supreme in the Supremacy Clause of Article VI.

The Supreme Court upheld this case in Reid v. Covert, 354 U.S. 1 (1957).

This court has regularly and uniformly recognized the supremacy of the constitution over a treaty. This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null....
-
Our constitution does not cede power to anything outside of the Judicial, Legislative and Executive branches of government....


In logical context, the Constitution holds superiority as the law of the land, over all other laws... Since it is even superior to the governmental authority to make and break treaties... And provides all other functions and branches their authority (including providing legal authority to treaties), and thus is the "source" of all authority in the land... Including that of treaties made with foreign powers.

This is also persuant to the legal supremacy order of Article VI...

"This Constitution[1], and the laws of the United States which shall be made in pursuance thereof[2]; and all treaties made, or which shall be made, under the authority of the United States[3], shall be the supreme law of the land..."

That is in order... The Constitution is first, laws made persuant to it by the legislature is second, and treaties made by the legislature persuant to it is third...

That is, The Constitution defines the powers....

The Legislature relies on the Constitution for its powers to make laws

The Legislature relies on the Constitution for its powers to make treaties

And the Judiciary is empowered to make ruling based upon the Constitution primarily, Federal law secondarily and International law tertiarily...

International Treaty can be made or broken by the Legislative power...

The Legislative power can be made or broken by the Constitution...

It's a matter of pre-emptory wording and law...

You're forgetting that the Constitution binds government (or at least it is supposed to)... As such, in practicallity it is supreme even over the treaties... Since the treaties are an operation of the constitutionally formed government. It is pratical that the Constitution is supreme in the Supremacy Clause of Article VI.

Ok, so it has been upheld that way, despite being worded otherwise.

(I don't argue that it makes more sense that way, only that it is not worded that way in the clause).

They are the supreme law of the land under the Constitution. If it violates the Constitution then it's null and void. Also, I don't think the judges were referencing any treaties the US has entered into when they made their decision. Instead they were referencing european law itself. Also, read this for another look at their argument.

http://www.thesakeofargument.com/archives/001040.html


Also, it says little to nothing about SCOTUS. That clause references 'Judges in every State.' SCOTUS really doesn't qualify.
Back to the original point of this thread; this post pretty much nails it - treaties are binding, but just as with any law, can be dumped, rescinded or changed.

Regardless, THE JUDGES WERE NOT REFERENCING ANY TREATIES, they were unhappy with the law as defined by the US legislature, so they went 'shopping' around the world for a law that fit within their own belief system. This would be no different than referencing laws from the Bible, the Koran or the Star Wars Trilogy in a US judgement. A judge is there to enforce law, not to create one or 'import' one when he does not like the current law. Making decisions based on foreign law is a serious derelection of duty.

Regardless, THE JUDGES WERE NOT REFERENCING ANY TREATIES, they were unhappy with the law as defined by the US legislature, so they went 'shopping' around the world for a law that fit within their own belief system. This would be no different than referencing laws from the Bible, the Koran or the Star Wars Trilogy in a US judgement. A judge is there to enforce law, not to create one or 'import' one when he does not like the current law. Making decisions based on foreign law is a serious derelection of duty.

If you read the actual decision, you would find that it was not based entirely or even mostly on foreign law.

Ok, so it has been upheld that way, despite being worded otherwise.

(I don't argue that it makes more sense that way, only that it is not worded that way in the clause).

Actually, it is worded that way...

In legal terminology, you always place things in superior order... That is, that with the most authority first, and that with the least last...

"This Constitution"

Primary source of all authority...

[comma]

"and the laws of the United States which shall be made in pursuance thereof"

The Constitution defines the laws of the land as only those which are persuant to Constitutional Authority... They are subservient to the US Constitution...

[semicolon]

"and all treaties made, or which shall be made, under the authority of the United States"

That is, treaties made by the legislative branch, under its powers as granted in the US Constitution...

[comma]
"shall be the supreme law of the land."

That is applied above all state laws...

It does not place all three on equal footing... It places all three above all other laws (that is all state laws).

Just as the Governmental Authority which the Constitution invests is bound to the Constitution which invested it...... The Treaties are bound to the Governmental Authority (Legislature) and the Constitution which invests it.

It's called Supremecy...

The Crusaders - p.41-42 Rolling Stone April 21, 2005
...
Meet the Dominionists - biblical literalists who believe God has called them to take over the U.S. government.

-snip-
That was very interesting reading, but not a bit paranoid, no? Surely the Dominionist movement is not all that big, is it?

This begs the question; why are some conservative Christians willing to go to theocratic lengths like those outlined in the above article?

I think it's because of abortion. Eutrusca was right. The nationwide legalisation of abortion started this ball rolling.

If you read the actual decision, you would find that it was not based entirely or even mostly on foreign law.
Then I'm sure you'd like to post a link to the decision you hold in question, since so far it has only been discussed in general terms.

Here is a discussion about one;
http://www.fox23news.com/news/national/story.aspx?content_id=D956B7F8-2064-4F66-AFC7-56DC42AD21FE

--------------------------

"This is much ado about nothing," she (O'Connor) said in response to a question by moderator Tim Russert of NBC. "Our Constitution is one that evolves. What's the best way to know? State legislatures - but it doesn't hurt to know what other countries are doing."

"I don't agree it's much ado about nothing," Scalia said in response to O'Connor. Regarding the death penalty case, he said the majority led by Kennedy "contradicted the view of the majority of the states. I don't see how international law is relevant. I don't know what a South Africa court will tell you about American law," he said.

----------------------------------

The Constitution Evolves??? Yes, but it is not the SCOTUS that holds it to evolution, it is the job of Congress. The SCOTUS is there to enforce the laws of the Congress, who are elected to office - not appointed by a president. There is a reason for that. Laws made by unelected officials are not far from, and can lead to, tyrrany.

Considering we have FIFTY states in the union with their own sets of independant laws, I see little reason to belive that there is inadequate attention to any real or potential civil or criminal matter to justify O'Connors actions.

Actually, it is worded that way...

In legal terminology, you always place things in superior order... That is, that with the most authority first, and that with the least last...

"This Constitution"

Primary source of all authority...

[comma]

"and the laws of the United States which shall be made in pursuance thereof"

The Constitution defines the laws of the land as only those which are persuant to Constitutional Authority... They are subservient to the US Constitution...

[semicolon]

"and all treaties made, or which shall be made, under the authority of the United States"

The use of the semicolon clearly places treaties above laws made in pursuance of the Constitution, at the very least. It would also appear to make them equal, just as if I said "Men and women", I would not be saying "men over women".

It does not place all three on equal footing... It places all three above all other laws (that is all state laws).

I never said it places all three on equal footing. It is quite clear that the laws are subject to the Constitution, but much less clear that treaties are.

Then I'm sure you'd like to post a link to the decision you hold in question, since so far it has only been discussed in general terms.

This thread is not about any particular decision, it is about a Constitutional question. The decision (and Delay's later remarks) simply sparked it.

However, if you would like to read the decision, I'm sure it is easy to find.

Edit: Meanwhile, I hold little regard for what Scalia says. He usually starts off on the right track, but ends up with a conclusion that makes no sense at all. My favorite was when he said that the courts and the federal government do not determine morality (I'm with you here Scalia) and then promptly stated that the state government do (WTF?).

If you read the actual decision, you would find that it was not based entirely or even mostly on foreign law.
I'm not even American and I have noticed that conservatives have taken one comment about international standards of decency, and blown it up to make it sound like American sovereignty has been ceded to the European Union.

One of the most commonly cited cases is the supreme court decision to outlaw the death penalty for minors. It was made under Amendment VII, which states Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted Conservatives argue that the Supreme Court judges based on European law. However, such is not the case.

The Constitution forbids cruel and unusual punnishment. How are we to judge such punnishments. One such way is to look to our moral equals (or superiors, depending on your views), the Europeans. They summed it up pretty clearly in their Charter of Fundemental Rights:

Article 2
Right to life

1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.


If anyone has ANY OTHER REASONABLE WAY TO DECIDE CRUEL AND UNUSUAL PUNNISHMENT, please respond

The use of the semicolon clearly places treaties above laws made in pursuance of the Constitution, at the very least. It would also appear to make them equal, just as if I said "Men and women", I would not be saying "men over women".



I never said it places all three on equal footing. It is quite clear that the laws are subject to the Constitution, but much less clear that treaties are.

If laws are subject, treaties are as well... This has everything to do with superiority.

All legal authority in the united states is derived from the Constitution (this includes treaties which are made persuent to proper constitutional authority).. There really is no debate on this issue. It is pure logic. A treaty which violates the US Constitution is no more valid than a law passed by the same legislature does... Just as federal and state laws are subservient to the Constitution, so to is Treaties made by the same government whose authority is derived from it. To assume treaties are on equal par with the constitution, is the same as assuming that federal law is on equal footing with the same. And to in fact place Treaties above the US Constitution...

If you review Section II of Article III, you'll see the same power invested in the Judiciary... In the same supremecy order [That is, the judiciary is invested with the same power to declare federal laws unconstitutional, as it is towards treaties)... Their power being derived, and oathed upon the Constitution itself. It is their to determine contest between one authority over another in light of the supremecy of one to another.

Legislative authority is made subservient to Constitutional Powers... Whereas treaty authority is made subservient to the "United States" thus the legal power by which the US acts (in persuant to its powers granted in the Constitution).

The simple fact is, all authority of the "United States" government is derived from the Constitution, and thus subservient to its operation in granting such powers to the body as a whole... This is as applicable to federally passed laws, as it is upon treaties enacted by the same said federal body.

This is also understood by the context of the drafter of the same mentioned Constitution; so we are establishing "originality" here upon its powers. Where amendment in the original text was to add "nor shall any treaty be valid which is contradictory to the Constitution of the United States." But was rulled out on the grounds that "it was unnecessary because treaties were already inferior to the constitution". This is understood from the supremacy view as expressed earlier. The Constitution derives its powers from the People, the Constitution grants the Federal Government its scope and levels of power, and thus makes it subservient to the Constitution in all matters of prudence... And all enactments thus, made by such body is also inferior to the Constitution in matters of prudence, which includes Treaties (which can only be empowered through the proper constitutional means).

If anyone has ANY OTHER REASONABLE WAY TO DECIDE CRUEL AND UNUSUAL PUNNISHMENT, please respond
You could easily make the argument that the murderer having breached the right to life of another not in defense of oneself, one's property, or another he has in turn forfeited his own rights.

You could easily make the argument that the murderer having breached the right to life of another not in defense of oneself, one's property, or another he has in turn forfeited his own rights.
A person's right to life is inalienable.

A person's right to life is inalienable.

So is ones right to happiness and liberty.... however... It is not inalienable from their own acts... Thus, Capital Punishment rightly executed by a proper and functional court is not a violation of that right, anymore than detainment of the person is a violation of their right to liberty and hapiness.

I side with jefferson on this issue... CP is valid, but should only be administered in the case of first-degree murder and treason.

So is ones right to happiness and liberty.... however... It is not inalienable from their own acts... Thus, Capital Punishment rightly executed by a proper and functional court is not a violation of that right, anymore than detainment of the person is a violation of their right to liberty and hapiness.
Good point, but I tend to think of imprisonment as a practical necessity for the safety of society, rather than something which is ideologically justifiable.

Good point, but I tend to think of imprisonment as a practical necessity for the safety of society, rather than something which is ideologically justifiable.

Well, you can see it from both points on this issue as well...

I happen to support CP under two circumstances.... However, I am at present concerned for the present state of the court-system, and as such generally oppose its execution at this point.

And in the restitutional sense, I see punishment as being proportionate to the crime.

And as a libertarian I see crime as an act commited by one or more people upon another in violation of that persons rights (life/liberty/property)... As such, I am opposed to "victimless" crimes.

Thus, I see someone who has commited first-degree (planned and premeditated) murder upon another as in forfeit of their life per legal equity. And an act against ones nation of treason (in the constitutional sense, not the crap people think of today) as being just as heinous and in violation the same as such.

A person's right to life is inalienable.
Yes, at least it is in the US Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

This is one of the major reasons the anti-abortionists are so adamant about their stand. They see abortion as denying the "inalienable right of life" to the "pre-born."

So is ones right to happiness and liberty.... however... It is not inalienable from their own acts...
The way I see it, yes it is. An inalienable right is that, inalienable. No matter what you do, your right is guaranteed. It cannot be removed under any circumpstances.

That is why I'm all for life in prison and not for the DP.

The way I see it, yes it is. An inalienable right is that, inalienable. No matter what you do, your right is guaranteed. It cannot be removed under any circumpstances.

That is why I'm all for life in prison and not for the DP.

Problem: That removes liberty and the pursuit of happiness, two other inalienable rights.

Meanwhile, go to the thread I just made to actually address this issue. =)

international treaties, ratified by a government, are superior to Any local law, even the pressiousss constitution.

Treaty = Contract = Binding

If a nation does not honour its contracts, it loses credibility and face, what there may be left of it.

tell that to the canadians.

Problem: That removes liberty and the pursuit of happiness, two other inalienable rights.

Meanwhile, go to the thread I just made to actually address this issue. =)
will do. :)

tell that to the canadians.
News for you: You lost a lot of credibility to the face of the Canadians.

Wonder why we refused to go on board with your missile shield? or in Irak? Or why we are in the process of imposing trade sanction?

One of the most commonly cited cases is the supreme court decision to outlaw the death penalty for minors. It was made under Amendment VII, which states Conservatives argue that the Supreme Court judges based on European law. However, such is not the case.

The Constitution forbids cruel and unusual punnishment. How are we to judge such punnishments. One such way is to look to our moral equals (or superiors, depending on your views), the Europeans. They summed it up pretty clearly in their Charter of Fundemental Rights:



If anyone has ANY OTHER REASONABLE WAY TO DECIDE CRUEL AND UNUSUAL PUNNISHMENT, please respond
wtf are you talking about? clearly the framers of the constitution didnt think the death penalty was cruel and unusual because they wrote it knowing fully well that the death penalty existed at the time.

The Eternal Kawaii declares: We are for the death penalty for juvenials' parents instead. They are the ones who should pay for doing such a poor job raising children.

News for you: You lost a lot of credibility to the face of the Canadians.

Wonder why we refused to go on board with your missile shield? or in Irak? Or why we are in the process of imposing trade sanction?

I was only pointing out that canada considers treaty law subordinate to domestic law. But whatever. :rolleyes:

I was only pointing out that canada considers treaty law subordinate to domestic law. But whatever. :rolleyes:


Maybe they are just unfamiliar with international law because they have rarely been found in violation of it.

Which makes the u.s. something of an 'expert' in the field...laughlaughlaughlaugh....drrrrrrrrrrrrrrums! :D

wtf are you talking about? clearly the framers of the constitution didnt think the death penalty was cruel and unusual because they wrote it knowing fully well that the death penalty existed at the time.
Cruel and unusual punishment is a 'floating' clause, it changes based upon the perception of the people of the time. We now hold that whipping is cruel and unusual, yet I doubt the founders would have batted an eyelash at it.

Cruel and unusual punishment is a 'floating' clause, it changes based upon the perception of the people of the time. We now hold that whipping is cruel and unusual, yet I doubt the founders would have batted an eyelash at it.

*Ahem* Made a poll and new thread on this, since this one basically got hijacked. =)

They are the supreme law of the land under the Constitution. If it violates the Constitution then it's null and void. Also, I don't think the judges were referencing any treaties the US has entered into when they made their decision. Instead they were referencing european law itself. Also, read this for another look at their argument.

(no)

Also, it says little to nothing about SCOTUS. That clause references 'Judges in every State.' SCOTUS really doesn't qualify.

Let's look at the case in question.

" (c) The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offenders under 18. See, e.g., Thompson, supra, at 830-831, and n. 31. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom. Pp. 21-25."


Why on earth are they citing foreign law? Because of how the court deals with 8th amendment cases (cruel and unusual punishment), generally through a consensus of that states, and if need be to support the argument, the world. The court is merely pointing out that the majority of the world (and the states), including the nation off of which the cruel and unusual clause is based off of (the United Kingdom) have abolished the juvenile death penalty and find it to be cruel and unusual.

(You can read the court case here: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-633 and see how little of a part of the argument this composes anyway)

It's not the punishment that I have a problem with. It's the sorry court system that has major failings in finding the truth of the matter in each case.

As long as you limit the death penalty to those for whom you can establish a hard factual case (I think we have to think beyond "reasonable doubt" - we have to have an absolute certainty), then I'm OK with it.

If we weren't so unsure of the nature of the convictions, the majority of Americans would probably have no problem with the sentence.

It's not the punishment that I have a problem with. It's the sorry court system that has major failings in finding the truth of the matter in each case.

As long as you limit the death penalty to those for whom you can establish a hard factual case (I think we have to think beyond "reasonable doubt" - we have to have an absolute certainty), then I'm OK with it.

If we weren't so unsure of the nature of the convictions, the majority of Americans would probably have no problem with the sentence.
this is exactly why i don't like the death penalty. we had over a hundred cases in which we were sure "beyond a reasonable doubt" that people had been murdered in the first degree. dozens of these people were sentenced to death. but all the sudden we had DNA evidence come out and all these people were proven not guilty.
I don't beleive one innocent man should die. and thats the risk you take when having the death penalty in the first place. sure you can say "now we have DNA evidence so we can prove beyond a reasonable doubt" but that was the exact thinking before DNA evidence existed. we were so sure that these people were guilty that we were going to kill them, and we did kill many of them.

I was only pointing out that canada considers treaty law subordinate to domestic law. But whatever. :rolleyes:
Ah but we don't have the same constitution, now do we? :D