The Long View 2008-03-26: Hierarchies in Conflict

Pope Benedict XVI baptizes Magdi Allam

Pope Benedict XVI baptizes Magdi Allam

In retrospect, it would appear that the baptism of Magdi Allam John J. Reilly wrote of a few days before this blog post was motivated by partisan political ends, rather than a love of Christ. Allam left the Church in a huff only five years later, claiming that his journey with the Church ended at the same time Benedict XVI’s pontificate did.

Unfortunately, Mr. Allam seems to have missed the epistle about how we baptize in the name of Christ, not Cephas.

Hierarchies in Conflict

Benedict XVI is accused of faintness of heart by Robert T. Miller at First Things; or at any rate, the Vatican is accused of trying to tone down the undown-tonable:

Pope Benedict XVI baptized and received into the Catholic Church Magdi Allam, an Egyptian-born author and critic of Islamic fundamentalism...Cardinal Re tells an Italian newspaper, “Conversion is a private matter, a personal thing, and we hope that the baptism will not be interpreted negatively by Islam.” A private matter? When it takes place at the Easter Vigil at St. Peter’s Basilica and on international television? Good luck with that one, Eminence....This sort of thing has happened before in Benedict’s pontificate. At Regensburg, Benedict wanted to take Islam to task for being insufficiently amendable to reason,...Benedict [then] issued a series of increasingly sweeping seems that Benedict wants to speak and act boldly, but when the inevitable reactions come, he wants to avoid responsibility by saying he was misunderstood. He can’t have it both ways.

Give nature time. There will be mayhem enough for all in due course, and then there will be all the straight talk a man could wish.

* * *

The US Supreme Court in Medellin v. Texas preserved its authority at the expense of the credibility of the United States, if you ask me.

The case was about the right of foreign nationals under the Vienna Convention to help from their home nation's consulates when they are incarcerated abroad. Specifically, it was about whether a Mexican national on Death Row in Texas could make the issue the basis for granting a new trial, when the time had passed under Texan criminal procedure for him to raise the matter on appeal. Mexico took the matter to the International Court of Justice (to whose jurisdiction the US had agreed in the Optional Protocol to the Convention), which said that the Texan procedural rule here could not defeat the right under the Vienna Convention to be informed of the availability of consular assistance, and so the conviction must be reconsidered. A US Supreme Court decision in another but similar case said the Vienna Convention did not supersede local criminal procedure. The Supremacy Clause of the Constitution says that treaties are the law of the land, and binding on state judges. Here, the Supreme Court held that the obligation of the US under the UN Charter to implement binding decisions of the International Court of Justice was not "self-executing" domestically: the federal government might have an obligation under international law to take certain steps, but the State of Texas need not comply unless Congress or specific treaty language said so. (Typically, the Bush Administration had tried to make good the lack of congressional action with a presidential directive, an argument of which the Court made short work.)

Nominally, this decision does not change the black-letter law of the Supremacy Clause, but it signals that this is going to become one of those areas where what the Court does will not be predictable from what it says. Because of the Supremacy Clause, the US has long been in the habit of insisting that multilateral treaties contain language to the effect that domestic implementation of their provisions must be left to the governments of their signatories. However, the reciprocal right to consular representation would not seem to require special domestic implementation. The right in question is not a complicated tariff agreement, after all.

I suspect what was happening was that the US Supreme Court was annoyed that the International Court of Justice had interpreted the requirements of the Vienna Convention one way, while the US Supreme Court, in another case dealing with the same issue, had arrived at a different conclusion. The ICJ decision was the one the petitioner here was trying to have implemented, so he could get a new trial. In effect, the Supreme Court was refusing to defer to a yet More Supreme Court.

The US Supreme Court did not say that treaties cannot be "self-executing," just that the treaties have to say the magic words for that to happen. When the Court gets one of these fantods, however, it is often the case that no words are ever magical enough. The Constitution, by its text and history, really does not contemplate that the Supreme Court is as "supreme" as its more triumphalist dicta of the past 50 years would have us believe. The fact is that Congress and the President have always had the power to create juridical bodies that are superior to the Supreme Court in some ways. The Court will be damned before it admits that fact.

As a matter of metapolitics, the result in Medellin is not altogether to be deplored. It really is true that a faction of legal academia has a project for displacing the domestic law of the United States with a super-constitutional law created by international institutions. I know this because my old law school sends me alumni magazines with articles by the faculty describing their progress in this endeavor. Nonetheless, the US is a partner to 70 treaties that use language similar to that in the treaties at issue in this case, and those have long been understood to be self-executing. In a way, the Court is acting like the Fed: carrying out a domestic policy without regard to its foreign consequences. The Fed's policies have the effect of devaluing the currency; the Court's, of devaluing the diplomatic credibility of the United States.

In contrast, consider this reaction from The Volokh Conspiracy applauding the decision with few caveats:

Finally, for what it's worth, I think as a matter of policy that Texas and other states should indeed allow foreign nationals arrested on criminal charges to notify representatives of their consulate...But not every good policy is or should be imposed by federal law. The right approach here is for the states to reform their own laws. If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives.

Forgive me for pointing out that a states-rights approach to consular notification would be more than a little crackers. It's hard to imagine a function that is a more appropriate federal responsibility. The consular-notification right in the Vienna Convention was largely an American idea, to protect Americans abroad. Do the "foreign nations" who could bring pressure on Texas to comply with the Convention include the one with its capital at Washington?

Copyright © 2008 by John J. Reilly

Why post old articles?

Who was John J. Reilly?

All of John's posts here

An archive of John's site