On the Nature of the Rule of Law and its Hypocritization
(Or, what’s bad for the Goose may also prove bad for the Gander)
Article VI, Clause 2 of the United States Constitution (the Supremacy Clause) states that “all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land.” However, the United States Supreme Court, in the relatively recent case of Medellín v. Texas, 552 U.S. 491 (2008) has apparently ruled that international law, including treaties and decisions of international tribunals, are not binding on the United States unless incorporated into domestic law by acts of Congress. Thus, as far as the United States is concerned, no international law is binding unless on a case by case basis, the President and the Congress agree to be bound thereby. Although there is an exception with respect to self-executing treaties, it is illusory given that violations of the obligations purportedly assumed cannot be enforced against the United States unless, as stated above, the President and the Congress agree to be bound thereby. If other countries adopt reciprocal policies, that would mean that international law, as a system of law, does not exist and that in international relations only Hobbesian exercises, uses and abuses of power carry any weight. Among the areas most affected are human rights recognized under the Charter of the United Nations and the two treaties and two related protocols which purport to give them legal standing. Among the rights included in such treaties and protocols are the rights to health care, decent housing, education, etc. Rights which many in the political right, not finding the in the body of the Constitution, are insisting do not exist, notwithstanding the provisions of its Ninth Amendment.[*]
So much for respect for rule of law by the United States judiciary and of Human Rights, even those we’ve been guaranteed under international treaties and which our government pledges to defend, at least elsewhere.
Not surprising then that even in domestic decisions, for example the recent Ninth Circuit interim decision on President Trump’s 90 day restriction on immigration from countries the Obama administration had found lacked adequate vetting capabilities, the federal judiciary operates more like a politburo than a legal system. The federal judiciary, like the mainstream media, has become utterly politicized, notwithstanding Alexander Hamilton’s attempts to isolate federal judges from such biases through lifetime appointments rather than periodic democratic election.
While purported liberals[†] revel in the Ninth Circuit’s appropriation of Executive Branch functions because in that instance it suited their political interests, the demise of the “rule of law” that both of the foregoing examples illustrates, makes perpetual conflict internationally as well as domestically almost unavoidable, at least until an autocrat in both spheres assumes and manages to retain power. Not exactly what most of us currently hope for but as chaos becomes more prevalent, a possibility that may become more and more attractive to too many of us.
Hypocrisy is an essential element of both postures, the hypocrisy of the United States with respect to its purported avowal of human rights and international law, and the hypocrisy of the CDC with respect to respect for the rule of law. It’s a defect that also infects the GOP which during the Obama administration engaged in very obstructionist tactics, albeit not the scorched earth policies of the current CDC and without the support for its tactics by the mainstream media that the CDC enjoys. Thus hypocrisy seems omnipresent and without an honest independent press, likely to get worse.
Unfortunately for decent people from all political perspectives, the consequences of the foregoing affects us all, and affects us wherever we live, and may well lead to civil and international conflict and perhaps, may even help rid the universe of our incoherent presence.
Perhaps good for the universe but not all that good for us and our progeny.
© Guillermo Calvo Mahé; Manizales, 2017; all rights reserved
[*] Ninth Amendment to the United States Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
[†] A term that in the United States now seemingly applies only to the Clinton wing of the Democratic Party and its adherents (e.g., Obama followers and the mainstream media, collectively the “CDC”) rather than to true traditional liberals some of whom try to differentiate themselves as Progressives but whose identity, at least by the mainstream media, is being subsumed into the CDC.