[opiniojuris] David Sloss: Ignoring Constitutional Text

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Posted by David Sloss:
Ignoring Constitutional Text
http://www.opiniojuris.org/posts/1173458150.shtml


   In [1]Sanchez-Llamas v. Oregon, the Supreme Court engaged in a
   practice that, sadly, is becoming increasingly common in cases where
   an individual litigant raises a claim or defense on the basis of a
   treaty. The Court ignored the relevant constitutional text. Despite
   the fact that the text of the Supremacy Clause explicitly addresses a
   central issue in the case, the majority analyzed the case as if the
   Supremacy Clause simply did not exist.
   Sanchez-Llamas presented two distinct questions about judicial
   remedies for violations of the [2]Vienna Convention on Consular
   Relations (the VCCR). This comment focuses on the question whether,
   and in what circumstances, state procedural default rules preclude
   state habeas petitioners from raising VCCR claims. Whenever U.S. law
   enforcement officers arrest a foreign national, Article 36 of the VCCR
   obligates the United States to notify the arrestee that he or she has
   a right to consult with a consular official. In the Bustillo case,
   which was consolidated with Sanchez-Llamas in the Supreme Court,
   Virginia violated article 36 by failing to notify Mr. Bustillo of his
   right to consult with a consular officer.
   The question arises: who committed the violation? The answer to this
   question depends on who had the duty to inform Mr. Bustillo of his
   rights under the VCCR. The Courtâs analysis in Sanchez-Llamas is
   premised on the unstated assumption that the arresting officer is the
   only person who had a duty to inform Mr. Bustillo of his rights. That
   assumption is wrong. The text of the Supremacy Clause specifies that
   âthe Judges in every State shall be boundâ by treaties. It bears
   emphasis that the Constitution does not say that police officers are
   bound by treaties, or that lawyers are bound by treaties: it says that
   âjudges in every Stateâ are bound by treaties. Thus, under the express
   terms of Article 36, the U.S. was obligated to âinform [Mr. Bustillo]
   of his rights underâ the VCCR. Moreover, under the express terms of
   the Supremacy Clause, that obligation was directly binding on every
   judge in the State of Virginia who conducted pre-trial or trial
   proceedings in Mr. Bustilloâs case. (Mr. Bustillo never learned about
   his VCCR rights until after the trial was over.) In short, every judge
   in the State of Virginia who presided over pre-trial or trial
   proceedings violated Mr. Bustilloâs rights under the VCCR.
   The majority in Sanchez-Llamas stated that our adversarial system
   ârelies chiefly on the parties to raise significant issues and present
   them to the courts . . . at the appropriate time for adjudication.â
   This is undoubtedly true, but it begs the question: what was the
   appropriate time to raise the issue of the VCCR violation? If the
   violation was complete before trial, as the Court tacitly assumed,
   then the appropriate time to raise the issue would have been at trial.
   In fact, though, under the express terms of the Supremacy Clause, the
   trial court had an ongoing duty to inform Mr. Bustillo of his rights
   under the VCCR: a duty that the court continued to violate throughout
   the trial.
   The distinction between a violation that is complete before trial and
   a violation that continues throughout the trial is fundamental. As the
   Court in Sanchez-Llamas properly noted, it is the defense attorneyâs
   responsibility to raise an issue at trial if the violation occurred
   before trial. But in cases where a judge violates a duty owed to a
   criminal defendant, and the judge continues to violate that duty
   throughout the trial, our legal system generally provides some form of
   meaningful post-conviction review. The State of Virginia never
   provided meaningful post-conviction review for Mr. Bustillo. In
   Sanchez-Llamas, the Supreme Court condoned the stateâs failure to do
   so.
   The Framers included treaties in the Supremacy Clause to resolve a
   concrete problem. Under the Articles of Confederation, judges in state
   courts consistently refused to enforce treaties. The Framers thought
   they had solved this problem by stipulating in the text of the
   Supremacy Clause that âthe Judges in every State shall be boundâ by
   treaties. As Alexander Hamilton explained in Federalist No. 22, â[t]he
   treaties of the United States, to have any force at all, must be
   considered as part of the law of the land. Their true import, as far
   as respects individuals, must . . . be ascertained by judicial
   determinations.â Unfortunately, courts today routinely ignore the
   Supremacy Clause and decide treaty cases as if the Clause did not
   exist. In doing so, they perpetuate the problem of treaty violations
   by state officers, the very problem that the Framers thought they
   solved by making treaties directly binding on state courts.

References

   1. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=4-10566
   2. http://fletcher.tufts.edu/multi/texts/BH444.txt