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In 1997, a Mexican national named Jose Ernesto Medellin was
sentenced to death for raping and murdering two teenage girls in
Texas. In 2004, the International Court of Justice ruled that he
was entitled to appellate review of his sentence, since the
arresting officers had not informed him of his right to seek
assistance from the Mexican consulate prior to trial, as prescribed
by a treaty ratified by Congress in 1963. In 2008, amid fierce
controversy, the U.S. Supreme Court declared that the international
ruling had no weight. Medellin subsequently was executed.
As Julian Ku and John Yoo show in Taming Globalization, the
Medellin case only hints at the legal complications that will
embroil American courts in the twenty-first century. Like Medellin,
tens of millions of foreign citizens live in the United States; and
like the International Court of Justice, dozens of international
institutions cast a legal net across the globe, from border
commissions to the World Trade Organization. Ku and Yoo argue that
all this presents an unavoidable challenge to American
constitutional law, particularly the separation of powers between
the branches of federal government and between Washington and the
states. To reconcile the demands of globalization with a
traditional, formal constitutional structure, they write, we must
re-conceptualize the Constitution, as Americans did in the early
twentieth century, when faced with nationalization. They identify
three "mediating devices" we must embrace: non-self-execution of
treaties, recognition of the President's power to terminate
international agreements and interpret international law, and a
reliance on state implementation of international law and
agreements. These devices will help us avoid constitutional
difficulties while still gaining the benefits of international
cooperation.
Written by a leading advocate of executive power and a fellow
Constitutional scholar, Taming Globalization promises to spark
widespread debate.
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