Every academic can name an article or two that they wish they had written, and for me the top of that list has always been occupied by Judge William Fletcher’s “The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance.” Judge Fletcher’s essay is the best thing we have on the phenomenon of “general common law”—the law applied by both state and federal courts to commercial disputes before the regime ofSwift v. Tyson gave way to that of Erie Railroad Co. v. Tompkins. The general common law was a form of customary international law (“CIL”); hence, the nature of the general law regime and the precise sense in which Erie altered that regime lie at the heart of contemporary debates about enforcement of a different kind of customary law—international human rights principles—in U.S. courts. Commenting upon Judge Fletcher’s reading of Sosa v. Alvarez-Machain, the leading recent case on human rights claims under CIL, is thus a task that I approach with both great honor and some trepidation. Fortunately, our differences are less important than our areas of common ground.
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McDonald’s Other Right
AS is widely known, in June 2010 the Supreme Court issued its opinion in McDonald v. City of Chicago, holding that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment binding on the states. The strong public and scholarly interest in the case is due, in large part, to the controversial nature of the right that was incorporated, but also to excitement (at least among scholars) over the first incorporation in roughly forty years. Despite this broad interest, one feature of McDonald appears to have gone so far unnoticed: the right to keep and bear arms is not the sole provision of the Bill of Rights that the opinion incorporates, for the first time, against the states. This oversight is understandable, however, because while the incorporation of the Second Amendment prompted over two hundred pages of opinions, the incorporation of the second provision, the Excessive Bail Clause of the Eighth Amendment, required only a footnote.
Expanding Congressional Power in Gonzales v. Carhart
In Gonzales v. Carhart (Carhart II), the Court delivered a setback to a woman’s right to choose by affirming the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Ban Act”). In doing so, however, the Court enlarged the scope of congressional power. The Court deferred to Congress’s factual findings and allowed Congress to determine for itself that an exception for the health of the mother was unnecessary. This deference, although disheartening inCarhart II, is promising for future civil rights legislation.
Seven years ago in Stenberg v. Carhart(Carhart I), the Court held that substantive due process requires that every piece of abortion legislation contain an exception for the health of the mother.Carhart I interpreted Planned Parenthood of Southeastern Pennsylvania v. Casey to mandate a health exception when “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” The Court in Carhart Idid not specify whether Congress or the Court is the appropriate body to judge the strength of the medical authority and determine whether a health exception is necessary.