The Federalist Society

Debate Comments


[Roberto Benitez]

I’m not a lawyer, judge or constitutional scholar, but I’m nevertheless amazed by how the former often ignore the clear words of the Constitution and of treaties that the US is party to. This head in the sand type of sophistry can be seen in those who support the supreme Court’s ruling regarding Bush’s asking Texas to re-examine its stand on the Mexican national not afforded his Consular Rights. According to the Constitution, Article VI, Paragraph 2, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” it’s clear that Bush was correct and the Supreme Court wrong, certainly not a first for it. Consider the supreme Court’s Kelo decision which for all practical purposes ended property rights in America.

For the above reason the United States is obligated by the Vienna Convention on Consular Relations (VCCR) which in Article 36(1) (b) of the VCCR states that “if he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner.... The said authorities shall inform the person concerned without delay of his rights under this subparagraph.

Lest there be some quibbling, the entire article of the VCCR is as follows:

Article 36 - Communication and Contact with Nationals of the Sending State. 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a.) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b.) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c.) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

We should ask the question as to whether or not this oversight had a deleterious effect on the outcome of the trial. I doubt it very much and believe the sentence was just as nothing in any treaty we have ever signed prevents the imposition of the death penalty on any foreign national even though we have made promises in certain cases not to seek the death penalty in order to gain extradition from certain countries. But this argument isn’t sufficient reason to ignore the fallacy of the supreme Court’s ruling.

Yet I wonder, would people have been so dismissive of Bush if a US citizen had been denied his Miranda Rights and claim that he shouldn’t be given a new trial on the grounds that following the supreme law of the land doesn’t matter? Or is following the rules and the law not important if it involves a foreign national, particularly a Mexican or a Muslim?

Because of the consequences of this case we should be more cognizant of what’s contained in treaties due to Article VI, Paragraph 2 of the Constitution. I would cite both the Kyoto Protocols and the Law of the Sea Treaty as examples that have the potential to do severe mischief to the United States. That is provided we intend to take treaties and the Constitution seriously. Or perhaps should I ask, what Constitution?

A politically incorrect conservative Republican curmudgeon



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