Douglas Kysar (YLS) and Bernadette Meyler (Cornell) have a new paper up at SSRN.  The paper is also published in the UCLA Law Review: Kysar, Douglas A. and Meyler, Bernadette A., "Like a Nation State" . UCLA Law Review, Vol.55, No. 6, 2008.

 Here's the abstract:

Abstract:     

Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG reductions in advance of a multilateral agreement including key developing nations, will require demonstrating that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president's independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may well take them into territory abutting that which is constitutionally impermissible under the foreign affairs and Foreign Commerce Clause doctrines. Finally, state efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.

 The Law Library of Congress is hosting two articles by Louis Fisher on Constitutional problems raised by the military commissions/tribunals authorized by President Bush.  The site also provides reference to two book-length treatments of the subject by Fisher.

 More great information from the Law Library of Congress, this time on the State Secrets Privilege.  Here you will find links to several articles, statements, and other material by Louis Fisher regarding the privilege in this decade.

"[A]ll 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, anything in the Constitution or laws of any State to the contrary notwithstanding."  U.S. CONST. art. VI.  However, when the Senate ratifies a treaty with a two-thirds vote, does that mean the treaty provisions are binding on the states?  According to a new ruling by the Supreme Court, they are binding only if the treaty explicitly says so or if there is legislation to make that clear. 

The decision is Medellín v. Texas, at is available at: http://www.supremecourtus.gov/opinions/07pdf/06-984.pdf   As a background note, in the Case Concerning Avena and Other Mexican Nationals (Mex.U.S.), 2004 I.C.J. 12 ( Avena ), the International Court of Justice (ICJ) held that the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their Vienna Convention rights. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state-court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions. In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) issued after Avena but involving individuals who were not named in the Avena judgment-the Supreme Court held, contrary to the ICJ's determination, that the Convention did not preclude the application of state default rules. The President then issued a memorandum stating that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.  ”Relying on Avena and the President's Memorandum, Medellín filed a second Texas state-court habeas application challenging his state capital murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals dismissed Medellín's application as an abuse of the writ, concluding that neither Avena nor the President's Memorandum was binding federal law that could displace the State's limitations on filing successive habeas applications.  On Tuesday, the Supreme Court ruled that neither Avena nor the President's Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions.

Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, expressed some concerns over the decision in a statement to National Public Radio:  "If our international allies have no assurance that we're actually going to keep our word, then they have much less incentive to keep their word when they're being obliged to do something."  To listen to the entire NPR story, go to: http://www.npr.org/templates/story/story.php?storyId=89064847

For more information on treaty research, please see: Marci Hoffman, Researching U.S. Treaties and Agreements (LLRX, May 15, 2001) available at: http://www.llrx.com/features/ustreaty.htm

This is really interesting. The proposed new British Bill of Rights looks increasingly like a bill of responsibilities.  Responsibilities that are enforceable in court!

More from The Guardian:

A new British bill of rights and duties may include duties of behaviour between fellow citizens that are enforceable by judges, the justice secretary Jack Straw indicated yesterday. Straw, also lord chancellor, is planning a British bill of rights to complement the European convention on human rights. The exercise is separate from a possible 20-year plan to introduce a potential British written constitution.

Straw made his remarks in a speech at George Washington University, Washington DC, where he also indicated that a written constitution was 20 years away. He said he was looking at a US-style sentencing commission that might take into account the size of the prison population in making broad decisions on sentencing.

The constitutional conversation is getting interesting.  Here The Guardian gets in its two cents (is that pence?):

Evolution not revolution is the way for constitutions to develop - except, perhaps, at times in history when a real revolution is under way. That was the message of justice secretary Jack Straw yesterday, as he spoke to a Washington audience. The tumultuous circumstances of American independence allowed the founding fathers to build up enduring rules from first principles; in more ordinary times a constitution written on a blank sheet will provide only a paper barrier against the abuse of power.

That didn't take long. Responses to Straw's comments are coming fast and furious. This will be interesting to watch. Here is an article in The Times:

What a difference a few hours make. In the morning, Jack Straw’s heavily qualified hints about working towards a written constitution were welcomed by Unlock Democracy, a leading reform group. Then, in the afternoon, Mr Straw’s full speech, entitled “Modernising the Magna Carta”, received a more hostile response: “what a load of cobblers,” as the OurKingdom website put it.

Jack Straw discussed the future of the British constitution and bill of rights and responsibilities on BBC yesterday.  The Guardian picks it up:

Britain is unlikely to have a full written constitution for at least 10 or 20 years, the justice secretary, Jack Straw, said today.

He confirmed that he is drawing up plans for a draft bill of rights and responsibilities, which would set down in one document the rights that citizens have, and also their civic duties.

But he stressed that this would not be the same as a new written constitution, such as America's.