the exceptionality of law assn. 3 - 1 Writing 140 The...

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1 Writing 140 10/30/2007 The Exceptionality of Law A heated debate among the politically divided Supreme Court justices has begun in recent years over the relevance of international law and whether it should be cited in Supreme Court cases. The justices opposing the referencing of international law assert that rulings of foreign judges have no relation to the beliefs of Americans. The justices in favor argue that the United States is part of an international community and that foreign law is relevant in the interpretation of the Constitution. Though five of the four Supreme Court Justices seem content in citing international law in their opinions, they fail to be consistent in their references. There have been many cases, particularly in Rumsfeld v. Padilla and Hamdi v. Rumsfeld (controversial and high profile cases involving the rights of Guantanamo Bay detainees), where it would have been extremely relevant to cite certain aspects of the Geneva Conventions, international laws that the United States had signed, yet the Supreme Court did not mention the treaties’ rights in their opinions. Yet, in 2005, only a year after those two cases were decided, the Supreme Court explicitly cited international law in Roper v. Simmons and referenced Article 37 of the United Nations Convention on the Rights of the Child, which the United States had not ratified. In 2005, the United States was thoroughly engaged in the war in Iraq, going against international advice to withdraw and criticizing other nations for not joining in the fight. Of all years to look internationally for legal expertise, 2005 seemed far from ideal. The Supreme Court is inconsistent in their citation of international law, only referencing it when it supports the opinion of the majority, not when it’s most applicable. There is no
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2 single root cause for the inconsistency, but reasons can be found in the internal divisions of the Supreme Court Justices, and where a case lies on the political spectrum. Though the use of international law in Supreme Court cases may be unpredictable, but there are legitimate arguments in favor of its use. In 2005, six members of the Supreme Court supported the referencing of foreign law. As pointed out by Sarah Cleveland, “(Stephen) Breyer and at least five other members of the court… argue that international norms should inform our constitutional analysis in a world increasingly united by globalization, democratization and the spread of universal human rights.” The United States interacts daily on political and economic levels with the entire world. It would be rational to assume that we share common values with other developed nations. The arguments not only address our current interactions with the global economy, but also on the historical founding of our nation. “The general concepts of individual rights such as ‘liberty’ and ‘cruel and unusual punishments’ that the drafters
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  • Fall '07
  • Alvandi
  • Writing, Supreme Court of the United States

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