Human Rights and Constitutional Democracy

This essay reviews Professor Jamie Mayerfeld\u27s book, The Promise of Human Rights. I am sympathetic to the broad contours of Professor Mayerfeld’s argument. Nevertheless, this essay challenges portions of his account. Part One addresses the topic of international oversight. Mayerfeld makes a powerful theoretical argument in support of his claim that increased international oversight could help strengthen human rights protections in the United States. Here, though, I think his account omits some important information and gives insufficient weight to current political realities. Part Two focuses on what Mayerfeld calls the United States’ “self-exemption policy.” In brief, this is the U.S. policy of refusing to ratify most human rights treaties and of ratifying other treaties subject to reservations, understandings, and declarations that limit the domestic effect of ratified treaties in the United States. I agree with much of his critique of the self-exemption policy. Even so, Part Two contends that there is a significant tension between the self-exemption policy and Mayerfeld’s defense of the democratic legitimacy of international human rights law because the self-exemption policy exacerbates the tension between majoritarian democratic principles and the domestic enforcement of international human rights norms

Section 230 and the Duty to Prevent Mass Atrocities

Of course, any proposal to create a statutory exception to section 230 immunity raises a set of complex questions about the proper scope of such an exception. This article identifies the key issues that would need to be resolved if Congress decided to create an exception along these lines. The remainder of this article consists of three parts. The first part explains why removal of immunity from civil liability is an appropriate mechanism to help prevent use of social media to incite or induce commission of mass atrocity crimes. The second part contends that the exception to section 230 immunity should apply to genocide and crimes against humanity, but not to terrorism or war crimes. The final part discusses a series of other issues that Congress would need to address to determine the proper scope of any such exception

California\u27s Climate Diplomacy and Dormant Preemption

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate change, including agreements with both national and sub-national governments.Governor Brown’s international diplomacy raises two distinct constitutional concerns. First, the Compact Clause provides: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact . . . with a foreign Power.” California’s cap-and-trade agreement with the Government of Québec (the “Linking Agreement”) is vulnerable to a constitutional challenge in this respect. Second, the Foreign Commerce Clause grants Congress power “to regulate Commerce with foreign Nations.” The Supreme Court has held that state laws may violate the Dormant Foreign Commerce Clause if they “prevent this Nation from ‘speaking with one voice’ in regulating foreign commerce.” The Linking Agreement may also run afoul of the Dormant Foreign Commerce Clause. Although the matter is not free from doubt, I conclude that the Linking Agreement does not violate the Dormant Foreign Commerce Clause. However, the Agreement may be unconstitutional under the Compact Clause, absent congressional consent. The Conclusion considers options available to Governor Brown to mitigate potential constitutional difficulties

FEDERAL INJUNCTION AGAINST PROCEEDINGS IN STATE COURTS: THE LIFE HISTORY OF A STATUTE

The Judicial Code provides, in section 265, that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except where authorized by the Bankruptcy Act. This provision, minus the bankruptcy exception, first appeared in an act of 1793, amending the Judiciary Act of 1789. We know next to nothing of the parliamentary history of this statute. We do, however, know that the basic political issue in the framing of the Constitution was that of states\u27 rights, the question how far the new government should be a nation, how far a federation of sovereign states, and we know that ratification was achieved with the aid (perhaps could not have been achieved without the aid) of an understanding that there should be immediate amendment by way of limitation upon the powers of the central government. We also know that the first Congress proposed, and the states promptly ratified, the first ten Amendments, all restrictive in character, five of them aimed at the judiciary, and that, in the deliberations of this Congress upon the first Judiciary Act, the question of states\u27 rights was to the fore. We also know that the third Congress framed the Eleventh Amendment, which privileged the states from suit in the federal courts, and that this measure was being formulated at the moment the injunction statute was passed. With this political -setting, we are justified in assuming that Congress, without thinking the matter through to the end, meant precisely that no injunction should be granted to stay any proceedings in state courts