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WenweiLaiFirstPaper 12 - 19 Jul 2010 - Main.WenweiLai
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| | | The refusal to join the ICC is easier to understand since joining the ICC means a restraint on the military means that can be used. As to the resistance to the use of foreign sources in Constitutional interpretation, it is harder to find any immediate interest. In fact, the arguments provided by the conservatives seem to be purely legal. For example, they would argue that foreign sources are not part of the Constitution; the Court cannot enforce a Constitutional right by changing what the right is. However, this argument confuses two different questions: whether the Court CAN use it and whether the Court SHOULD use it in a specific case. When a persuasive authority is used properly, there should not be the problem of changing what a Constitutional right is. | |
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< | To respond to the “persuasive source” argument, the conservatives contend that the use of foreign sources by the Court is only nose-counting: we can’t follow something simply because it is followed by others. This is unconvincing as well. Doesn’t the mere fact that most countries in the world are protecting a right means something? For example, the Convention on the Rights of the Child, which was cited in Roper v. Simmons (2005), was ratified by every country in the world except for the US and Somalia. Isn’t it enough to justify the Court’s search for the rationale behind the right’s universal acceptance? The resistance to foreign sources, just like the refusal of the ICC, puts the US together will some totalitarian countries. | >
> | To respond to the “persuasive source” argument, the conservatives contend that the use of foreign sources by the Court is only nose-counting: we can’t follow something simply because it is followed by others. This is unconvincing as well. Doesn’t the mere fact that most countries in the world are protecting a right means something? For example, the Convention on the Rights of the Child, which was cited in Roper v. Simmons (2005), was ratified by every country in the world except for the US and Somalia. Isn’t it enough to justify the Court’s search for the rationale behind the right’s universal acceptance? The resistance to foreign sources, just like the refusal of the ICC, puts the US together with some totalitarian countries. | | | The resistance to foreign sources may not necessarily be linked to the development of US unilateralism. It may be said that the conservatives refuse a specific source simply because they don’t like it, such as the abolishment of capital punishment. However, if this is the case, then there is no need for them to reject foreign sources as a whole, since sometimes foreign sources may be on their side. Bradwell is a good example: foreign sources are not always liberal. As a result, a more plausible interpretation may be that the resistance is only part of a larger political ploy. For instance, this website attacks the use of foreign sources by the Court, and then reaches the conclusion that “whether unsafe, unhealthy Mexican trucks will soon be roaming U.S. highways may be decided by a NAFTA tribunal instead of by U.S. law” At the end of the day, the resistance is a political product, not a legal one.
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