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13 - Global Power in an Age of Rights: Historical Commentary, 1946–2000

Published online by Cambridge University Press:  05 July 2011

Martin S. Flaherty
Affiliation:
Fordham Law School
David L. Sloss
Affiliation:
Santa Clara University, California
Michael D. Ramsey
Affiliation:
University of San Diego School of Law
William S. Dodge
Affiliation:
University of California, Hastings College of Law
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Summary

A good historical account seeks to make out the big picture from small facts. Reviews of a given interpretation therefore range from grand theoretical critiques to picking the smallest nits, often at the same time. When provided with not one but three meticulous chapters, commentary becomes an even greater challenge in each regard.

No big picture at first seems clear and not just because here are three separate treatments of three discrete aspects of the Supreme Court's use of international law. More importantly, the post–World War II era appears to stand in stark contrast to a period such as the Founding. It seems fairly apparent that, at the Founding, doctrine followed the reality that the United States was a small, fledging Republic seeking the protection of the law of nations. By contrast, doctrine in the postwar period seems at times internationalist and at times nationalistic within all three categories: treaties, custom, and interpretation.

The disarray seems all the more odd given what should have happened. No more obvious development in foreign affairs characterized the era than the United States' emergence as the preeminent superpower, rivaled only by the Soviet Union. It would follow that, just as the new Republic embraced international law in its infancy, the new hegemon would ignore it in its maturity. The main likely exception would be those instances when international law facilitated rather than obstructed U.S. foreign policy goals.

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Publisher: Cambridge University Press
Print publication year: 2011

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References

Flaherty, Martin S., History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 Colum. L. Rev. 2095, 2112–51 (1999)
Kinney, Eleanor D., Recognition of the International Human Right to Health and Health Care in the United States, 60 Rutgers L. Rev. 335, 345 (2008)
Traer, citing Robert, U.S. Ratification of the International Covenant on Economic, Social, and Cultural Rights, inPromises to Keep: Prospects for Human Rights1, 3–5 (Charles S. McCoy ed., 2002))Google Scholar
Bradley, Curtis A. & Flaherty, Martin S., Executive Essentialism and Foreign Affairs, 102 Mich. L. Rev. 525 (2004)
Bruff, Harold H., The Story of Dames & Moore: Resolution of an International Crisis by Executive Agreement, in Presidential Power Stories 369, 395–97 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009)
Sloss, David, United States, in The Role of Treaties in Domestic Courts: A Comparative Study 504–54 (David Sloss ed., 2009)
Yoo, John, Politics as Law? The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 Cal. L. Rev. 851 (2001)
Vázquez, Carlos M., The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695, 713–15 (1995)
Bradley, Curtis A., Customary International Law and Private Rights of Action, 1 Chi. J. Int'l. L. 421, 421 (2000)
Tribe, Laurence H., Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995)
Alford, Roger P., Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int'l L. 675, 743–44 (2003) (arguing that AEDPA was sufficiently clear under the Charming Betsy canon).

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