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Federalism And International Human Rights In The New Constitutional Order, Mark V. Tushnet
Federalism And International Human Rights In The New Constitutional Order, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court's innovations in the law of federalism in connection with Congress's exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government's power with respect to foreign affairs. Most of the speculation has been that …
Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States, Catherine Powell
Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States, Catherine Powell
Georgetown Law Faculty Publications and Other Works
Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …