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2971. Review: The Conscience of the Constitution

Author:
Slade Mendenhall
Publication Date:
04-2014
Content Type:
Journal Article
Journal:
The Objective Standard
Institution:
The Objective Standard
Abstract:
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, by Timothy Sandefur. Washington, DC: Cato Institute, 2014. 200 pp. $24.95 (hardcover). While the principles of liberty on which America was founded are under attack from so-called liberals and conservatives alike, and while expanding abuses of government power are too vast and complex for most Americans to fully follow, books by rational, knowledgeable professionals clearly and concisely explaining the problems and offering solutions are of immense value. Timothy Sandefur's The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty fits this bill. Sandefur, a principal attorney at the Pacific Legal Foundation and an adjunct scholar at the Cato Institute, bases his latest work on an underappreciated idea in American legal thinking. It is the idea that the Declaration of Independence—understood as a formal, legal, diplomatic document issued by the representatives of thirteen British colonies to the king of England—is part of the law of the land, just as are the Constitution and the Bill of Rights. In fact, argues Sandefur, the Declaration used to be seen as the “conscience of the Constitution,” and reviving this understanding of its position in the framework of U.S. law will go a long way toward establishing the moral and political context within which lawyers, judges, and Supreme Court justices should argue and interpret constitutional law. Sandefur's thesis is controversial and is not likely to be well received in modern courts and law classrooms. Most law schools teach students to view the Declaration as a mere manifesto or letter of aspiration. But Sandefur wages a compelling intellectual defense of the Declaration-as-law on two fronts: against leftists, who have ridiculously claimed that the document was drafted as a wink-and-nod effort by elite white men to put down minorities and the lower classes; and against conservatives such as Russell Kirk and neoconservatives such as Irving Kristol who, afraid of its “natural rights” language, dismiss the ideas of the Declaration and characterize it as an underhanded “ploy to lure the French” into conflict with the English (p. 14). Sandefur, pointing out the baseless nature of such criticisms, puts forth a strong argument for holding the Declaration as law and highlights the Founding Fathers' own understanding of it as such. . . .
Topic:
Government
Political Geography:
America, Washington, and England

2972. The International Society for Public Law - Call for Papers and Panels; Van Gend en Loos - 50th Anniversary; Vital Statistics; Roll of Honour; Quantitative Empirical International Legal Scholarship; In this Issue

Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
On 26–28 June 2014, in Florence, the European University Institute and NYU–La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON.S).
Political Geography:
Europe

2973. The End of Geography: The Changing Nature of the International System and the Challenge to International Law

Author:
Daniel Bethlehem
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This lecture, inaugurating a lecture series in honour of Sir Elihu Lauterpacht, looks at the changing place of geography in the international system and the challenges that this poses to international law, from the central place of geography in the Westphalian legal order to its less certain place in the rapidly globalizing and diffuse international society of the present day. Examining these issues through the contrasting prisms of the principal political organs of the United Nations in New York, on the one hand, and the UN Specialized Agencies centred in Geneva, on the other, the lecture also explores these issues by reference to Thomas Friedman's thesis that The World Is Flat. The lecture concludes by identifying a number of areas of international law, and the international legal system, that will require creative thinking in the period to come to reflect the diminishing importance of geography.
Topic:
International Law
Political Geography:
New York

2974. The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Author:
David S. Koller
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This article responds to Daniel Bethlehem's assertions that globalization is diminishing the importance of geography, and thereby challenging the Westphalian order on which international law is constructed. It contends that international law does not take geography as it is but actively creates and sustains a state-based geography. It argues that the challenges Bethlehem identifies are not new but are inherent in international law's efforts to impose a state-based order on a global world. The question is not whether international lawyers will respond to these challenges, but how they will respond. Will they follow Bethlehem in reinforcing a statist order, or will they place sovereignty of states in the service of the global human community?
Topic:
Globalization and International Law
Political Geography:
New York and Europe

2975. The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Author:
Carl Landauer
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Daniel Bethlehem makes a convincing case in 'The End of Geography' that the growing challenges of our contemporary world require a move from our state-centred international legal system. This reply places Bethlehem's voice among a growing list of those who either describe or prescribe a move from the traditional Westphalian state system. It argues, however, that the challenges have always been transboundary and that the Westphalian state system has never been as strong or as long-lived as envisaged by its critics.
Topic:
International Law
Political Geography:
New York and Europe

2976. A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours

Author:
Maria Artistodemou
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This article is a radical rethinking of public international law through the use of Lacanian psychoanalysis. Its central thesis is that while contemporary scholarship addresses what Lacan calls the symbolic and imaginary registers including law, politics, and ideology, it continues to ignore and repress the dimension of the real. The article illustrates this with a clinical example examined by Kris and discussed by Lacan. Imagining public international law as an indefatigable neurotic in search of 'fresh brains', the article shows why meeting her in the domains of law and politics is not enough to satiate her appetite. What continues to resist is the 'extimate', the inhuman element within the human that the subject hides so well from herself that it is excluded in the interior. A major instance of the extimate is the 'caffeinated neighbour', that is, the neighbour who is not in our image because her disturbing core has not been subtracted. The article argues that unless international law comes to terms with this inevitably ugly and obscene core, in oneself as well as in the neighbour, it cannot hope to achieve any meaningful changes. That the need to recognize the extimate is the ethical demand facing international law now; unless we address it, our symptoms will continue to grow and we will continue to crave fresh brains.
Topic:
International Law
Political Geography:
New York

2977. The Beneficiaries of TRIPs: Some Questions of Rights, Ressortissants and International Locus Standi

Author:
Christopher Wadlow
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The rights and remedies of private parties under the three principal global treaties for the protection of intellectual property are restricted to persons having the status of ressortissants under the relevant treaty, and by the general law of diplomatic protection. Two largely neglected issues arise in relation to ressortissants, which the treaties do not expressly resolve. The first concerns whether the obligations which state A assumes towards the nationals of state B can be enforced by states other than B. The second is whether the obligations assumed by a state under one of these treaties extend to that state's own nationals. It is suggested that the Bananas III and Havana Club decisions have effectively resulted in unlimited locus standi for WTO members to complain of breaches of TRIPs, including the incorporated provisions of the Paris and Berne conventions. The answer to the second question is more tentative, but it is suggested that there may be greater opportunities for arguing that the provisions of TRIPs are binding on states in relation to their own nationals, including incorporated Paris and Berne Articles, than there were under either of those earlier treaties on their own.
Topic:
International Law
Political Geography:
Europe and Paris

2978. Revisiting Van Gend en Loos: A Joint Symposium with the International Journal of Constitutional Law (I.CON)

Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I.CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
Topic:
Development
Political Geography:
Europe

2979. Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy (Abstract only)

Author:
J.H.H. Weiler
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
Topic:
Development and Law
Political Geography:
Europe

2980. The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions

Author:
Eyal Benvenisti and George W. Downs
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
In its Van Gend en Loos judgment, the ECJ assigned citizens directly enforceable rights vis-à-vis their respective state executives, and authorized national courts to protect those rights. What explains the Court's suspicion of state executives as the sole actors to implement Community law (acting directly or through the Commission)? What justifies its confidence in the ability of the national courts to protect the individuals? We submit that the ECJ was informed by the premise that national courts acting in unison could withstand political pressures and protect individuals while implementing the Treaty. Moreover, the ECJ understood that its interaction with national courts would put it in a position potentially to offer significant support for citizens of relatively weaker countries against various predatory policies employed by the more powerful states in the organization. In this article we explore these premises and present evidence to support them. More generally, we argue that there is good reason to endorse this model of judicial activism as a means to ensure democracy as judged by the effective and informed participation of individuals in public decision-making that affects them – within international organizations. This judgment demonstrates the promise of greater interaction and coordination between national and international tribunals in preventing democratic failures at both the national and international levels. Although judicial intervention often pre-empts public deliberation, it can also encourage it; although it may operate to pre-empt the vote, it can also function to ensure it.
Topic:
International Organization
Political Geography:
Belgium and Netherlands