Tag Archive for Supreme Court

How well do the thoughts and intentions of the Framers of the Constitution on responsibility for national security still hold up today?

February 22, 2013 Free Content, National Security Law No comments

(C) Kapok Tree Diplomacy. Apr 2012. All rights reserved. Jeff Dwiggins

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The Framers for their part did have a lot to say about the delineation of powers in these areas. The Constitution is a good place to start in determining how those powers are enumerated and what limits if any apply to them. Madison

The Fourth Amendment to the Constitution says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Passed 12/15/1791).

The Fourteenth Amendment to the Constitution says:

“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Passed 7/9/1868)

These amendments lay out the case for citizens’ right to privacy and limits on government instrusion in this matter without spelling out what constitutes “unreasonable.” Thus, if the President can save millions of lives by wiretapping a suspected terrorist under FISA, is this “reasonable?” Read more

The Efficacy of the Modern Institution of International Law

February 10, 2013 International Relations, Intl Law, Paid Content No comments

“The Efficacy of the Modern Institution of International Law ” by Kapok Tree Diplomacy

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Introduction

International laDoha Roundw has evolved into a growing and complex body of rules and norms that states consent to based upon their concrete interests in a peaceful, prosperous and stable society. While international law differs and often competes substantively from municipal law, international law plays a predominantly positive role in allowing nations to benefit from the binding obligations derived from its sources. This essay will cover a brief history and definition of international law in Section One to include its sources and evidences followed by a comparison of international law with municipal law in Section Two with an emphasis on treaties.  The paper will conclude with some observations on how well the framework of international law actually works.

Section One – A Brief History and Definition of International Law

History.  The modern institution of international law has its historical roots in the sixteenth and seventeenth centuries with the evolution of the nation state in Europe.  Werner Levi notes, “The feudalistic entities with their relatively uncertain borders gave way to states based upon sharply defined territory” (qtd. in Dunoff, Ratner, & Wippman 5).  As states emerged, the need to communicate and coordinate according to definitive norms and principles also emerged as well as the need to delineate authoritative boundaries and interpret binding obligations.

The authority to rule over these sovereign territories was originally understood as a “divine right” proceeding from God or natural law, “a set of divinely ordained principles of state conduct, accessible to all endowed with right reason” (Reus-Smit 282).  Through influential philosophers like Hugo Grotius and Alberico Gentili, the concept of “positive law,” created by humans and practiced by states, began to take its place alongside and even supplant natural law as the primary basis for international law (Dunoff, Ratner, & Wippman 6). Read more