(Download) "Constitutional Law and Transnational Comparisons: The Youngstown Decision and American Exceptionalism (International Rule of Law)" by Harvard Journal of Law & Public Policy * Book PDF Kindle ePub Free
eBook details
- Title: Constitutional Law and Transnational Comparisons: The Youngstown Decision and American Exceptionalism (International Rule of Law)
- Author : Harvard Journal of Law & Public Policy
- Release Date : January 22, 2006
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 358 KB
Description
In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the "brave new meaning" that the Court had given the Due Process and Equal Protection Clauses and, by implication, the Eighth Amendment. (1) One of his principal complaints about the majority opinion, holding that the Eighth Amendment prohibits imposition of the death penalty on a person below the age of 18 at the time of an offense, was its reliance on foreign and international law to reinforce its conclusion that such punishment was "cruel and unusual." Justice Scalia's reference to "brave new meaning," implicitly invoking the negative utopia of Aldous Huxley's famous novel, (2) is of a piece with his position that constitutions are designed to "obstruct modernity," (3) that the "new" is irrelevant to interpreting the written constitutional text. Huxley's sarcastic title for his dystopic novel was, however, drawn from a more ambiguous reference in Shakespeare's The Tempest. (4) Brought up on a deserted island with only her father and his servant, Miranda falls in love with Ferdinand, who is washed ashore by a terrible storm created by her father; upon meeting others from Ferdinand's ship also washed ashore, she exclaims, "Oh brave new world, that hath such creatures in it!" (5) Miranda's statement can be read as one of exultation and celebration of the entrance of foreigners onto her isolated island, even as those with more knowledge can see the darker side of some of these strangers. Whether one is inclined to exult or bemoan the occasional references to foreign or international law found in recent Supreme Court cases, one thing is clear: references to foreign or international law in the Supreme Court's constitutional jurisprudence are not new. Rather than being a brave or bold departure from established norms of interpretation that exclude their use, references to foreign or international law have played, episodically, a small role in many of the Court's most important opinions over time--sometimes being used to support propositions in dissent in cases subsequently overcome by constitutional amendment or different doctrine, (6) sometimes being cited to support holdings that would be eschewed or qualified today. (7) Although objections to the consideration of foreign or international law have been raised on grounds of national sovereignty, democracy, and the need to cabin judicial discretion, (8) none of these concerns should rule out all such references, whose long history is the starting point for traditionalist analysis of their appropriate use in interpretation.
 "Constitutional Law and Transnational Comparisons: The Youngstown Decision and American Exceptionalism (International Rule of Law)" by Harvard Journal of Law & Public Policy * Book PDF Kindle ePub Free){kind=link}