U.S. constitutional law
U.S. constitutional law "deals with the interpretation and implementation of the United States Constitution." While the U.S. Constitution is widely regarded as a document of much wisdom, its Framers simply could not foresee all the contingencies over more than two centuries. International treaties, or supranational law such as European Community Law, are not usually considered "constitutions". While treaties ratified by the U.S. Senate become the "law of the land", there is a major difference between "law" and "constitution."
In practice, the most important interpreter of constitutional law is the Supreme Court of the United States (SCOTUS). Its role in judicial review is not explicit in the Constitution, but was established principally by the 1803 Marbury v. Madison and 1819 McCulloch v. Maryland cases.
SCOTUS most relies on the doctrine of stare decisis or precedent in earlier Supreme Court and other U.S. court rulings. It will also consider, as informative sources, the decisions of state courts, of treaties and international bodies, and foreign courts, as well as works of legal scholarship.
In judicial review, both the "original intent" and "original understanding", are considered. Original intent comes from writings of the Framers, such as the Federalist Papers. Original understanding comes from the deliberations of the state conventions that ratified the Constitution.
Constitutional review authority of the SCOTUS and subordinate courts is not explicit in the Constitution, but was recognized in the 1819 case of McCullough v. Maryand, which gave the courts "the power to invalidate any state actions that interfere with the Constitution and the laws and treaties passed pursuant to it." The Court based its reasoning on Article VI, the Supremacy Clause.
Considering foreign law has become an especially sensitive U.S. political issue, although the practice is not new. Many conservatives are concerned that transnationalism will go beyond information, to the point that international organizations override the sovereignty of the United States. This was made a major issue in the confirmation of Harold Koh as legal adviser to the U.S. Department of State. Critics quoted a 2004 article by Koh, in The American Prospect about the transnational system, but often ignoring the underscored words:
We should use “transnational legal process” to press our government to put forward the best face of American exceptionalism, the activist face that promotes human rights and the rule of law. Transnational legal process encompasses the interactions of public and private actors — nation states, corporations, international organizations, and non-governmental organizations — in a variety of forums, to make, interpret, enforce, and ultimately internalize rules of international law. In my view, it is the key to understanding why nations obey international law. Under this view, those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, which generate legal interpretations, which can in turn be internalized into the domestic law of even resistant nation-states.
- Constitutional law: an overview, Legal Information Institute, Cornell University Cite error: Invalid
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- 17 U.S. 316 (1819)
- John Yoo (2005), The Powers of War and Peace: the Constitution and Foreign Affairs since 9/11, University of Chicago, ISBN 0226960315, p. 28
- H. Jefferson Powell (1984), The Original Understanding of Original Intent, Duke Law Faculty Scholarship, Paper 441.
- Jack Rakove (Summer 1996), "The original intention of original understanding", Constitutional Commentary
- 5 US 137 (1803)
- Harold Hongju Koh (20 September 2004), "On America's Double Standard: The good and bad faces of exceptionalism.", American Prospect