Gerald L. Neuman

The uses of international law in constitutional interpretation

Is international law “irrelevant” to constitutional interpretation in the United States? How could that be? The arguments for categorical ignorance of international law in constitutional adjudication play on exaggerated fears: fear of foreign domination, fear of judicial activism, fear of the unknown. The claim of irrelevance depends on a false dichotomy between excluding international law fromjudicial consideration and allowing foreign institutions to control constitutional meaning. The more sensible inquiry would ask how international law has informed constitutional interpretation in the past, and how it should be used in the future.

The Abiding Significance of Law in Foreign Relations

The foreign relations cases of the October 2003 Term provided an important opportunity to test the role that law would play in the relationship between the United States and the external world in the twenty-first century. The coming decades are certain to be marked by the ongoing trend of economic globalization, and by its shadow, transnational terrorism. Cases arising from the aftermath of September 11 reached the Supreme Court, and both in those cases and in others the Government repeatedly raised the question of how the world had changed since 2001, and whether former rules could still apply.1 The Supreme Courts response was moderate and nuanced. It did not reduce the law of foreign relations to the single principle of Executive discretion. Rather, it confirmed the continuing significance of law as an element of foreign relations, and the separation of powers in the sense of shared responsibility of the three branches to contribute in their own ways to managing the interactions of the United States with the international system. At a time

The Nationalization of Civil Liberties, Revisited

In 1967 Professor Herbert Wechsler delivered a lecture examining the then-increasing role of the Supreme Court and Congress in defining the rights of the citizens of the states. More than thirty years later, Professor Gerald Neuman revisited this subject in an inaugural lecture as Columbias first Herbert Wechsler Professor of Federal Jurisprudence. Neuman finds that the Supreme Court has slowed the expansion of constitutional rights and that three recent decisions have circumscribed Congressional power to create statutory rights under the Commerce Clause and the Fourteenth Amendment. He argues that these decisions do not necessarily impede the legitimate use of other governmental powers to confer statutory rights, and that the power of Congress to implement treaties may become a more important basis for the enactment of legislation that protects individual rights beyond those recognized in U.S. constitutional doctrine.