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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (91746)	12/21/2004 5:35:42 PM
From: TimF	Respond to of 793772

My argument was not about whether judicial review should exist, also it explicitly recognized that there was gaps and uncertainties in the constitution. Surely it's not erroneous to use principles of international law of treaties when interpreting international treaties... In the sense that I was using the term's "abstract principles", it probably is. The level of abstraction is on the level of saying that the 1st amendment is about freedom, and then trying to use this principle of freedom to elevated any supposed increase of freedom to a constitutional principle, or to use a more real life example to take things like the 1st, 3rd, 4th, and 5th amendments to support a right to privacy (and then the further interpretation of this right to privacy to mean a right to contraception and abortion, but not a right to countless other things that involve or touch on privacy) faculty.washington.edu Generally I'm against considering such “penumbras” to be constitutional law. Further considering the fact that none of the listed amendments has anything specifically to do with reproduction it doesn't make a lot of sense to say they give a right to reproduction but not a right to informational privacy or interference in non-reproductive choices. I can't see any way that this is other then trying to reach a desired conclusion and than inventing principles to get that conclusion, followed by ignoring the principles again when they become inconvenient. Even when I agree with the desired conclusion (for example I agree that contraception should be legal), I don't think the court should reach out of nowhere (or out of recent court decisions, or articles in legal publications that themselves have no real constitutional basis) to impose the desired result. As much as I think contraception should be legal if I was on the USSC at the time I could not have agreed with the majority decision. The SCOTUS does give precedence to international tribunals in such cases, not exactly stare decisis, but as sources of normative law. If a court sees that another court, even a court in another country has decided a similar case very well, I don't have a problem with it applying the same decision in the US if it also fits with US law and the US constitution. International law is a strange beast. Its really agreements between countries, there is no sovereign to impose the law (and if there was it would be the nation, at least a weak central government). It's parochial to think that we can't learn anything from other countries. We can. I agree that we can learn from other countries. I just think if we learn something important the the law of the US, including the constitution of the US should change to accommodate it. The fact that something is a good idea doesn't make it law in the US. This is true whether or not other countries implement the idea. Tim