”So, just what is a conservative anyway? Is it true conservatives don’t want anything to change?” My questioner, a pleasant enough young CPA, along with his wife and six other people my wife and I didn’t know, were seated together as guests at a mutual friend’s 25th wedding anniversary celebration. The small talk had turned to politics, and as is my wont, I warned those within earshot of my conservative tendencies. Bitter experience has taught me to be upfront about such things. Once I’m out of the closet, I can say outrageous things like “I think everyone should pull his or her own weight” with less trepidation since everyone already knows I’m not normal. Guessing “Ed” thought I would be in favor of a return to slavery, I determined to issue a credible reply.
“Conservatives want two things Ed,” I said. “We want to preserve the good in America, and we also are in favor of fixing what’s wrong, but not at the expense of forfeiting our founding principles. Founding principles? I could tell the words bounced off my new friend like BBs off an Abrams tank. “And those would be…,” Ed ventured cautiously. Those CPAs are smart. They can spot a trap, or a loophole, at great distance. I gave him both barrels. ”Individualism, individual liberty, limited government, the rule of law, private property rights, free-market capitalism, stuff like that,” I said. Not long after, we were talking about the Dodgers. Ed hasn’t given America’s ”First Principles” five seconds consideration and he wasn’t about to start during dinner. Happily unaware that America’s foundational principia form the basis of his prosperous, secure, flat-out enjoyable existence, I let Ed finish his chicken in peace. Ed is one of those Americans not only pursuing happiness, he’s caught up to it! You’d think he would want to understand the headwaters of his enormous opportunity. Maybe when tax season ends.
The wisdom of adhering to First Priniciples was again vindicated in the bizarre case of Jose Ernesto Medellin, an illegal immigrant who, in 1993, participated in the rape and murder of two young girls, ages 14 and 16. After savaging the victims for a hour, Medellin and his fellow gang members decided to kill the pair to prevent them from identifying their assailants. Medellin strangled one of the girls with her own shoelaces.
Arrested a scant five days later, Medellin “signed a confession after receiving his Miranda warning,” according to court records. Medellin was convicted of rape and murder and, having committed the crimes in Texas, was sentenced to death in 1997. Hook ‘em horns. Now, all we have to do is wait 20 or 25 years for justice to be done, right? Well, not quite.
Committing an oversight of international proportions, Texas authorities failed to tell Medellin of his right to contact his consulate — that would be the Mexican consulate — under the terms of the Vienna Convention. I’m not making this up. In the 1960s the United States agreed that foreign nationals who are arrested or detained be given notice ‘without delay’ of their right to have their embassy or consulate notified of that arrest. Worse, something called the Optional Protocol provides that disputes arising out of the interpretation or application of the Vienna Convention “shall lie within the compulsory jurisdiction of the International Court of Justice (ICJ),” according to an ABC News report. In 2003, Medellin’s lawyers filed a petition for habeas corpus based on this oversight of international law. The district court denied relief.
Next into the fray, Mexico sued Texas in the ICJ for failing to notify not just Medellin, but 50 other Mexican illegal immigrants on death row for murder in Texas. To the surprise of no one, the ICJ found for Mexico, ruling all “51 Mexican nationals were entitled to review and reconsideration of their convictions and sentences,” according to court records. Medellin used that judgment to again appeal his conviction, an effort thwarted by the Fifth Circuit Court of Appeals which, again, denied relief. Case closed, right? Well…
Before Medellin v. Texas made its way to the U.S. Supreme Court, President George W. Bush issued a “Memorandum to the United States Attorney General,” in which Mr. Bush asserted Constitutional and other legal authority “to order states to review the convictions and sentences of foreign nationals who had not been advised of their Vienna Convention rights,” according to court documents. What was our esteemed leader thinking? Speculation ranges that either Mr. Bush was trying to improve relations with our neighbor to the south (Mexico is foursquare against the death penalty) or was simply attempting to expand the powers of the Executive. Whatever the reasoning, it was clear the President was attempting to force a state government to abide by international law. For once the Supreme Court had a better idea.
In its ruling essentially nullifying the Memorandum, the Supreme Court upheld two long-cherished political presuppositions. First, treaties enacted between the United States and foreign powers do not directly apply to legalities within the United States unless Congress passes affirming legislation. Writing for the majority, Chief Justice John Roberts wrote, “not all international law obligations automatically constitute binding federal law enforceable in United States courts.”
Second, the Supreme Court reiterated the fundamental American legal principle that Congress, not the executive branch, makes law in America. Reporting on this landmark decision, National Review gushed that “the justices Bush appointed to the Supreme Court…[issued] one of the most important international law decisions in the history of the court. Chief Justice Robert’s opinion confirmed that laws must be enacted by Congress, not by the president or the judiciary, still less by a fiat of a foreign court operating under the auspices of the United Nations.”
And just what was it that guided the six majority justices — Roberts, Scalia, Kennedy, Thomas, Alito, and Stevens — to this proper conclusion? While acknowledging strong arguments on both sides of this issue, Roberts wrote, “Such considerations, however, do not allow us to set aside first principles. (emphasis added) The President’s authority to act, as with the exercise of any governmental power, must stem from an act of Congress or from the Constitution itself.” The first principle of separation of powers saved the day.
All this brings us full circle to our dinner party. Conservatives often positively work to change flaws in the American system. One day we may want to adjudicate illegal alien crimes according to international law, however unlikely that seems now. If so, we must arrive at that change lawfully, according to the first principles of America.
That is change we can believe in.
Posted by Jerry Pomeroy in Illegal Immigration, Rule of Law