So yesterday Sen. John Cornyn (R-TX) entered the fray (hmmmm... maybe not a "fray" so much; frays seem to imply that a lot of people are talking about it; I wish that were the case with this issue) about the Texas case and the Mexicans they want to execute. Writing in the National Review, Cornyn says:
Today the Court considers whether to take yet another step down this path. The case involves the state of Texas, and I have filed an amicus brief asking the Court to respect its own precedents and to defer to the people of Texas in their administration of criminal justice consistent with the Constitution. The other side in the case argues in effect, however, that the International Court of Justice can effectively overrule a decision of the U.S. Supreme Court and of the Texas government.[...]
This is — to put it lightly — not how our legal system is supposed to work. To the contrary, our Founding Fathers fought the Revolutionary War precisely in order to stop foreign governments from telling us what our laws say. The Declaration of Independence specifically complains that the American Revolution was justified because King George "has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws." It was "We the People of the United States" who ordained and established a Constitution of the United States, one that includes a mechanism by which only "We the People of the United States" can change it if necessary. And of course, every federal judge and justice swears an oath to "faithfully and impartially discharge and perform all the duties incumbent upon me...under the Constitution and laws of the United States."
I would love for some republican to keep reading the Constitution one day. It seems like they get to the end of the Preamble and the big words start taxing their brain. So let's do this again. The US Constitution, Article VI, Clause 2, says this:
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.
Commenting on this site, our friend Incertus spells out the point nicely, and I want to quote him:
Point is, it's not international law--it's US law, no matter how the wingnuts try to spin it. When the US becomes party to a treaty, we pass a law that has equal force to anything in the Constitution--that's why treaties require such a high threshold to be ratified.
Incertus is correct, and John Cornyn's argument is a red herring that relies on the ignorance of his readers. His statement that "only 'We the People of the United States' can change [the Constitution]" maybe correct, but no one's talking about changing the Consitution. We're just talking about applying it. The Constitution says that treaties have the weight of US law, that are, in fact, US law. And according the the Vienna Convention on Consular Relations, to which the US is a signatory, the International Court of Justice has jurisdiction in matters like this.
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.
The Vienna Convention gives the ICJ the power to decide matters of "interpretation or application" of the convention. If I'm reading this correctly, it means not only that the ICJ gets to decide matters like the Texas case, but that it has the power to decide whether it's allowed to decide matters like this.
So John Cornyn may not like a bunch of furriners making decisions about who the people of Texas can and can't kill, but until the US is no longer a signatory to the Vienna Convention, he'll have to make a choice between abiding by the letter and spirit of the Constitution that he claims to cherish on the one had and supporting the illegal thing he wants the state of Texas to do on the other. He shouldn't have to wait long though. Bush has promised to withdraw from the Convention, and after that Cornyn can have all the Mexicans executed that he wants.