How One Court Case Upset American-Mexican Relations

Facade of the Supreme Court of the United States in Washington DC
Facade of the Supreme Court of the United States in Washington DC (Shutterstock/Brandon Bourdages)

In contemporary American-Mexican relations, decade-old legal proceedings continue to upset amicable ties between two governments that have to closely cooperate to combat human trafficking and a deadly drug trade along their border. The particulars of the case involve a number of complicated legal questions.

José Ernesto Medellín was a Mexican national, convicted of capital murder under Texas state law and executed in 2008 for his part in the robbery and sexual assault of two minors who were murdered by Medellín and his accomplices to prevent their identification. His case highlighted an important distinction in treaties between nations — self executing and non-self executing, both of which are recognized under international and American law.

On appeal, Medellín asserted that his right to substantive due process was violated because the state had failed to inform him that as a Mexican national, he had the right to speak with and receive counsel from the Mexican consulate under the Vienna Convention on Consular Relations of 1963.

The controversy turned on the question whether or not the treaty violation constituted a substantive violation due process or was a procedural error that did not necessarily raise sufficient grounds to vitiate Medellín’s conviction. The subtle difference between self executing and non-self executing treaties was relevant here. Whereas the former are lawfully binding immediately upon ratification, non-self executing treaties require passage of enabling legislation before they can come into effect.

Medellín’s request for a writ of habeas corpus reached the Supreme Court of the United States. In his majority opinion, Chief Justice John Glover Roberts, while not explicitly endorsing any single position, reaffirmed the position long held by the United States on the nature and interpretation of treaties.

The determination of whether or not a treaty is self executing or not as well as the nature of the obligations imposed upon the parties involved is, and has always been, a function of and dependent upon two primary variables: one, the context in which a treaty is made and the intentions of its framers as discernible through the linguistic elements and conventions employed in its construction as affirmed in Ware v. Hylton by the Supreme Court in 1796; two, the meanings attributed to the words themselves as Justice Oliver Wendell Holmes noted in 1918’s Towne v. Eisner:

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

The Medellín case and its aftermath have served to reinforce a wariness on the part of the Mexican government to work with the United States in anti-drug operations. This the Bush Administration predicted in 2007 when it argued before the Supreme Court that Medellín’s execution could end up frustrating American foreign policy. Texas was allowed to carry out the sentence despite appeals from Mexico and the International Court of Justice which both urged the state to delay capital punishment.

Texas stressed that Medellín and his accomplices were on death row for murdering Texan citizens. Indeed, their crimes were abominable and the Texas government has a duty and a responsibility to protect its people from harm and punish those who inflict it. The rights of children, moreover, trump many legal considerations but the effect on American bilateral relations with Mexico, if not future legal proceedings involving American citizens abroad, has been profound.

The Future of the UN Trusteeship Council

Since the United Nations Trusteeship Council fulfilled its original mandate of shepherding territories on their way to independence, debate has been raging about what to do with the institute. In 2005, Secretary General Kofi Annan recommended amending the Charter of the United Nations for the purposes of deleting those chapters and provisions related to the council but there may be a future for it still.

In an article she wrote for the Columbia Law Review in 2005 while a postgraduate student, Saira Mohamed, now a professor of international law at the University of California at Berkeley, advocated against legislating the council out of existence. In “From Keeping Peace to Building Peace,” Mohamed recommended revising the text of the Charter of the United Nations to modify the purpose and mission of the Trusteeship Council to transform it into a body that assists failing and failed states in sustainable and enduring redevelopment of governmental institutions and structures.

The development of a council tasked with fostering and encouraging uniform standards of governance must take into account the geography, the socioeconomic and sociopolitical conditions present on the ground. Nonetheless, “failed” states as Afghanistan, Chad, Somalia and Sudan could benefit greatly from the advice and assistance of such a council as would countries in the process of failing like Burma, Laos, Tajikistan and Uzbekistan.

The Trusteeship Council was devised for a similar purpose. Tasked with creating a new international system for the postwar era, as early as during the Second World War, diplomats were faced with the question of what to do with those areas operating under the League of Nations mandatory system and the colonies and protectorates of the Axis powers.

The League of Nations, the precursor to the United Nations, assumed responsibility for those colonial possessions that the Austro-Hungarian, German and Ottoman Empires ceded to the allies after the First World War. The organization classified these territories into three classes and established a scheme of governance to administer them. In practice, the Mandatory Commission of the League of Nations divided the mandates into three classes A, B and C.

Class A mandates were deemed to possess sufficient strength and stability to warrant recognition as provisionally independent and as such, the mandatory power administered the mandate indirectly, utilizing the local law.

Class B mandates possessed the potential to achieve independence eventually but their successful transition from colony to sovereign nation state would demand a greater degree of involvement in the affairs of the mandate, including direct administration by the mandatory power.

The Allied powers viewed Class C mandates as having the least potential as viable states and as a result, the mandatory power virtually incorporated the Class C mandates and governed them as overseas departments of the mandatory powers.

At the time of the surrender of the Japanese government and armed forces to the allies of the United Nations in September 1945, thirteen territories remained under mandate — one Class A mandate and twelve other Class B and Class C mandates. The United Nations divested Italy of its colonies of Eritrea, Italian Somaliland and Libya. The mandates previously administered by the Japanese Empire were reassigned to the United Nations.

A year after the end of the war, the one remaining Class A mandate achieved partial independence when King Abdullah I announced the formal the establishment of the Hashemite Kingdom of Transjordan in May 1946. Two years later on May 14, 1948 the majority of the remaining territory within the Palestine mandate became the state of Israel.

During those years, responsibility for eleven of the twelve remaining Class B and Class C mandates transferred from the Mandate Commission to the Trusteeship Council upon ratification of the trusteeship agreements.

On October 1, 1994 the final trust territory, Palau, achieved full de jure independence. One month after gaining full independence and six weeks before Palau entered the United Nations, the Trusteeship Council amended its rules of procedure and suspended operations indefinitely. Palau gained admission into the United Nations and ever since, the council has existed on paper only.

The community of nations stands at a crossroads stretched out before them in two paths. One condemns the citizens of those states with failed and failing governments to a continued existence in which they are beset by a multitude of evils including unending strife and instability. Conversely, the other path possesses the potential to inspire stability and development by endowing the people of these nations with the tools and techniques necessary to engender change. Which path will be chosen?

Is the World System Changing?

While the wars in Afghanistan and Iraq have drained American resources, the unrest in the Middle East might herald the beginning of a transformative period, one in which semiperipheral nations either replace the existing core states or increase their number by becoming core states themselves.

History demonstrates that global conflicts often prefigure the evolution of the international system. The failure of the Concert of Europe resulted in the First World War, which in turn culminated in the Treaty of Versailles and the League of Nations. The fundamental flaws within the peace treaty rendered the League of Nations impotent in the face of the rising tide of fascism during the 1930s that inspired the horrors of the Second World War.

From the devastation of World War II arose the United Nations with the Bretton Woods monetary system. The resistance toward concerted efforts at restructuring both the UN Security Council and the global economic consensus and trade regime as sustained by the International Monetary Fund and the World Trade Organization serves as a concrete representation of the latent conflict between the “global north” and the “global south.” Within the Security Council in particular, the “permanent five” aim to maintain the status quo in order to prolong their ability to assert and implement their interests, possibly at the expense of developing nations.

The “world system” however, as it was described by sociologist Immanuel Wallerstein (1930), may not be static but dynamic instead to the extent that the classification of various states as core, peripheral or semiperipheral can evolve over time. Modern day examples include Brazil, India and South Africa which are rising to the status of core power. China, it may well be argued, has already achieved that status.

Venezuelan economist Richardo Hausmann argued that the sustainable development of the peripheral states of the global south is dependent on their ability to overcome the natural barriers imposed by their geography. If Hausmann is correct, the continued growth of developing nations requires the investment and involvement of industrialized nations in the global north.

Freedom of the Press, Speech and Liberty

Independence Day, for me, is symbolic of the ability to freely express opinions; the hallmark of a free society. It was Thomas Jefferson who wrote, in 1791, that, “Government being founded on opinion, the opinion of the public, even when it is wrong, ought to be respected to a certain degree.”

In the United States, it is commonplace to hear partisans and pundits on both sides of the political spectrum accuse one another of intellectual laziness and moral laxity. I maintain that it is impossible to prove such charges because they are dependent upon the perception and cultural lens of the individual leveling the charge.

The issues raised by the debates over the intrinsic value of The Lord of the Rings, Harry Potter, Percy Jackson, Twilight, and the Golden Compass series provide examples of this tendency. The current legal challenges have expressed a wide array of viewpoints that represent the opposing ends of the sociopolitical spectrum and the many shades of grey in between. These debates have resulted in many intensely heated exchanges and debates between conservatives and liberals.

Social conservatives argue that these series promote religious systems and beliefs that are contrary to the religious traditions of the United States by advocating intellectual principles that denigrate traditional forms of education. They favor school libraries limiting access or completely barring students from accessing the aforementioned series by either restricting the ability of students to checkout their books, or by banning them from collections outright.

Conversely, social liberals maintain that interest in these series encourages students to read and serve to develop literacy skills and provide opportunities to nurture critical thinking. Liberals assert that by limiting the right of students to read series in the vein of The Lord of the Rings promotes a culture which embraces censorship and inhibits the intellectual development of students. Being too restrictive in allowing students access to this literature would be inimical to the freedoms of press and speech as enshrined in the First Amendment.

Despite their differences, there exists at least one point upon which both parties can agree as a matter of principle. Any attempt to mandate or make compulsory a single opinion is anathema to each. Every conservative, liberal, moderate or independent regardless of social, economic or political leanings would concur with Voltaire’s long-held maxim — “I do not agree with what you have to say, but I will defend to the death your right to say it.”

The fact that a dispute over a series of books that began its life as an issue at school board meeting has evolved into a court case and made its way into a legal setting is deeply disturbing.

It seems to me the continued endurance and health of the republic requires that individuals take great care and remain wary of utilizing the legal system to impose through force of law an individual viewpoint as Robert Jackson eloquently pointed out in 1943.

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Officials face the dilemma of censorship on a daily basis and must tread carefully because the freedoms of speech and the press are among the most treasured by Americans. Yet of all the rights endowed to the American people, the freedoms of speech and press are the most difficult to wield. The power to use speech freely grants to an individual the ability to influence others as President Woodrow Wilson once pointed out.

I have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out and the world knows that he is a fool. So it is by the exposure of folly that it is defeated; not by the seclusion of folly, and in this free air of free speech men get into that sort of communication with one another which constitutes the basis of all common achievement.

Considering the current social, political, and economic ongoing within the nation we as Americans possess a duty to exert the rights, privileges, and duties under the Constitution of the United States and to maintain the vitality of our republic. The continued freedom of the nation lies within their respect for the liberties of the individual as Learned Hand asserted in 1944.

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near 2,000 years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

It is only with the preservation of liberties that justice and freedom can endure, continue to grow and flourish in the face of all challenges.

A Layperson’s Musings on a Judicial Nomination

The confirmation proceedings for Solicitor General Elena Kagan to become the newest Associate Justice of the Supreme Court of the United States have been largely unremarkable in that the hearings have not illumined Kagan’s personal views on any substantive points of law that are likely to be examined by the Court. Many of the senators who are attempting to ascertain the solicitor general’s qualifications and fitness for the appointment have complained about her scant production of literature related to topics as abortion and the right to bear arms. Indeed I would assert that this dearth of information is an effort to avoid the fate that befell former Solicitor General Robert Bork whose writings were utilized to raise questions about his temperament and resulted in the defeat of his nomination to the Supreme Court as potential successor to former Associate Justice Lewis F. Powell in 1987. Since then potential nominees have been quite circumspect about the tenor of the writings they publish. As a result the Senate Judiciary Committee is forced to rely on the testimony of the nominee and the witnesses that have been called to testify.

President Barack Obama’s commissioning of Elena Kagan as the replacement for the retiring Justice John Paul Stevens is neither unexpected nor is it without precedent. Four other solicitors general have occupied seats on the Supreme Court with one serving as Chief Justice.

The first solicitor general to serve on the Court was President Benjamin Harrison’s second solicitor general, the 32-year old William Howard Taft who served in the position from February 1890 until his confirmation to the Sixth Circuit Court of Appeals on March 17, 1892. Thirty-one years would pass before President Warren G. Harding would commission the former president of the United States on June 30, 1921. Taft, then 63 years of age, succeeded Chief Justice Edward Douglass White who had died on May 19, 1921 following complications from gallbladder surgery.

Former President Taft was confirmed the same day his nomination was received in the Senate — a feat few justices have achieved. The vote overwhelmingly confirmed his nomination with sixty in favor, four against and 32 abstaining. Chief Justice Taft sat on the Court for more than eight years before retiring in February 1930 due to failing health. He died a month later, on March 8, 1930, at the age of 72.

Since Taft’s appointment to the court three other solicitors general have been appointed to it.

In January 1938, Stanley Forman Reed was commissioned by President Franklin D. Roosevelt to replace Associate Justice George Sutherland who retired after more than fifteen years on the bench at the age of 75. Reed was confirmed within five days and went on to serve over nineteen years on the Court. He retired on February 24, 1957 at the age of 72.

Three and half years later in June 1941, Attorney General and former Solicitor General Robert Houghwout Jackson was nominated by Roosevelt to replace Associate Justice Harlan Fiske Stone. Stone replaced retiring Chief Justice Justice Charles Evans Hughes that month. Jackson was confirmed on July 7 and served thirteen years until he died from a massive heart attack on October 9, 1954.

Almost thirteen years after Justice Jackson’s death President Lyndon B. Johnson nominated the last solicitor general to become a Supreme Court Justice, Thurgood Marshall. On June 13, 1967 Johnson nominated him to replace Associate Justice Thomas Campbell Clark who had retired on June 11, 1967, concluding over seventeen years of service in order to permit Ramsey Clark’s nomination as Attorney General of the United States to proceed.

Solicitor General Marshall was confirmed by a vote of sixty in favor, eleven against and 29 not voting. He served for 23 years before he retired in September 1991 at the age of 83 due to ill health.

Another issue that has been cause for concern among critics of Elena Kagan’s nomination is her lack of prior judicial experience. In my view, this should not be an absolute bar to her confirmation. If one examines the former solicitors general who sat on the Court only Chief Justice Taft and Associate Justice Thurgood Marshall had judicial experience prior to being appointed. Neither Justice Reed nor Justice Robert Jackson served in any judicial capacity before they became Supreme Court Justices. Justice Reed never even attended law school. Justice Robert Jackson did, briefly, but failed to graduate — something which clearly differentiates Kagan from her likely predecessors.

I conclude my remarks on the nomination by reserving my judgment on how Solicitor General Kagan’s judicial temperament will manifest itself in the event that she is confirmed. I reserve my judgment because I am reminded that in some notable cases, an individual once appointed has not fulfilled the expectations of the president who nominated them. For instance, Oliver Wendell Holmes Jr., Earl Warren and William J. Brennan disappointed Presidents Theodore Roosevelt and President Dwight Eisenhower respectively. President Eisenhower is even reputed to have remarked that he was unsure which was his greater mistake: appointing Chief Justice Warren or Associate Justice Brennan.