U.S. Constitution and International law

[Allan Ides]

This is a very interesting hypothetical.  It creates a different
constitutional world.  The first question I would have to ask is
whether the statute is itself constitutional.  The arguments on both
sides have been run many times.  I won't review them here other than to
observe that as a matter of constitional law, we do not know the answer
for the simple reason that the Supreme Court has never been required to
answer it.  I will assume, however, that the law is constitutional.
That being so, the law divests the SCt of his ability to "make"
constitutional law in this context.  It alters the hierarchy by
defusing it through the states.  The question then becomes whether the
constitutional law of abortion is frozen at Roe or Planned Parenthood.
My instinct is that it isn't given the "common law" nature of
constitutional law.  On that assumption, I would then say that the duty
to determine the content of con law in this context devolves to state
courts, in part, as a product of the Supremacy Clause duties imposed on
state court judges.  We would then have decentralized law of the
constitution that would vary from state to state.  This might be a good
development. But so long as the SCt remains atop the judicial
hierarchy, we stuck with a centralized model of constitutional law.

Allan
----- Original Message -----
From: Mark Tushnet <tushnet at LAW.GEORGETOWN.EDU>
Date: Thursday, October 17, 2002 9:54 am
Subject: Re: U.S. Constitution and International law

> A standard hypo for exploring Mark Scarberry's question is this:
> Congress enacts a statute depriving the Supreme Court and lower
> federalcourts of jurisdiction over abortion cases (you have to
> work hard to get
> the definitions here right).  A state enacts a law criminalizing early
> abortions (unquestionably inconsistent with Roe).  A defendant asserts
> the unconstitutionality of the statute as a defense to a prosecution.
> Must the state court follow Roe, or may it make its own inquiry
> into the
> underlying constitutional question?  You can play this back to the
> stageof the prosecutor deciding whether to prosecute under the new
> statute,or even further back to the stage of a legislator deciding
> how to vote
> on the proposed statute.
>