The Enterprise of Con Law

[Ernest Young]

I haven't remotely come to rest on the international law as a basis
question.  I suspect that if Congress's power under the Offences Clause
were limited to implementing what Gerry is prepared to call a norm of
international law, it would be a fairly sensible world.  But people like
Professor Martin and others often seem to be pushing in the direction of
international law as a much more complete system of norms.  Especially
given the appealing moral nature of many of these proposed norms, I'd be a
little nervous that each incremental step of recognition may seem like a
good idea at the time but that eventually there will be no limits on
Congress's authority.  For that reason, I'd prefer to give thought sooner
rather than later as to what sort of rules might cabin the Offences
Clause.  Of course nothing is ever "iron clad" -- I'm a common lawyer, for
gosh sake.

At 10:50 AM 11/11/2002 -0500, you wrote:
>To me, the biggest problem in Ernie Young's characterization of the issue
>is the phrasing that finds a constitutional-methodological
>problem in the fact that "international law has or can have norms on any
>subject" -- and I emphasize the "can have".
>If the idea is to have an iron-clad federalism doctrine that guarantees
>state power against all POTENTIAL increases in federal power, now and
>forever, then I DON'T think that is the proper enterprise of
>constitutional law.  The constitutional text simply provides no basis for
>such an enterprise.  Federal powers expand and contract with their
>subject matters over the course of time.
>Any such enterprise must rest on judicial invention.
>And any such judicial invention should, at a maximum, be limited to its
>own historical period, and be responsive to ACTUAL not PURELY SPECULATIVE
>threats to the viability of the states.
>(And, needless to say, a greater degree of intellectual honesty about the
>invented character of the rules would be welcome -- a comment that is NOT
>directed against any member of this list.)
>-- Gerry Neuman

Ernie Young

Assistant Professor of Law
University of Texas School of Law
727 East Dean Keeton St.
Austin, TX 78705
(512) 232-5561
eyoung at mail.law.utexas.edu