International Law & the Supremacy Clause

[Frank Cross]

Professor Martin:

This discussion has been very informative for thus of us (such as me) who
don't really know much in the area.  I think there are two basic objections
that cannot be overcome by case citations:

1.  The position is overly formalistic.  Insofar as the law is a
"prediction of what judges will do," many of us doubt that the judiciary
would use customary international law to override a really significant
federal statute (though they doubtless use it in a commercial context where
grand political issues are not at stake).  Like Prof Volokh, I am confident
that courts would not do so in national security matters.

2.  The position is normatively troubling.  This may be due to my ignorance
about the formation and nature of international law, though.  Our statutes
have a domestic democratic imprimatur, and we may worry about the normative
basis of international law.  Whether we should subordinate our democratic
decisions to the democratic vision of the entire world community is one
matter.  Whether the decisions of international law truly reflect an
international democratic vision (as opposed to that of governments, many of
them authoritarian) is another.






Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712