#the cognitive dissonance is so severe that he sees two different versions of himself and that's why he has two personas

[justiceburst]

Moral Alignment Test

Goro is 18.3% good, tied between chaotic and lawful, making him true neutral.

[maxdibert]

What are your headcanons on Severus and the Malfoys? Do you think he genuinely considered them friends, or was it part of his cover? Or were they ever really friends at some point?

I have so much to say about this! I actually have two different versions of the story, and I think both of them could be canon. I can never decide between them because both seem plausible, so I’ll share my opinion on each and let everyone decide which one fits best.

Despite being a poor, scruffy, half-blood kid from a working-class background, I think Lucius took Severus under his wing because, after all, Lucius was already a 15-year-old teenager who was likely quite involved in pure-blood extremist circles and had probably heard of Voldemort by then. He was probably trying to make a good impression by recruiting as many people as possible. And despite Severus’ background, treating him with respect was a pretty shrewd move to maintain unity within Slytherin and promote that “us against the world” mentality. This would ultimately foster the cult-like environment that developed during that era. I also think that, after seeing that Severus, beyond his background, had a strong interest and talent for the Dark Arts and was a good student, Lucius probably saw that Severus’ skills could be useful, which is why he kept him under his wing. Lucius Malfoy is often portrayed as a snobbish buffoon, but besides being a shrewd man, he’s part of high society, old money. And even the classist aristocrats know how to make use of the working class and recognize talent because, historically, they’ve maintained their position by exploiting such talent.

I think Lucius and Severus maintained that mentor-pupil relationship for many years, and once Lucius graduated, he intervened to help Severus be accepted and valued within his House while also using him as a sort of personal charity project. Like Cher in Clueless (who’s based on Emma Woodhouse from Jane Austen) taking on an awkward kid from the North without wealth or pedigree and turning him into someone fit for high magical society—a kind of social experiment, if you will. I think this made Severus feel indebted to him, at least before Voldemort killed Lily. I also believe that, during Severus’ school years, his gratitude stemmed not only from this “mentorship” but also from the fact that, for the first time, someone believed in him and motivated him to pursue his ambitions. Lucius was like a father/older brother figure whom he respected and appreciated for seeing him as more than just a poor kid with nothing.

That said, my interpretation of their relationship splits into two possibilities once Severus becomes a double agent.

On one hand, there’s the idea that, after Lily’s death, feeling guilty and determined to actively work for Voldemort’s downfall, Severus emotionally distanced himself from the Malfoys as much as possible. The relationship they developed over the next 18 years would then be solely a means to an end—to gain favor with someone influential within the Ministry and among the most important dark wizards. Deep down, it was all a façade because the Malfoys also represented everything he despised and regretted being a part of, so he decided to cut off any emotional attachment to them. Basically: it was all fake.

The other version, and the one I prefer because it feels more realistic, is that Severus, as the abused and abandoned child he was, would always experience cognitive dissonance toward people who treated him well during his most vulnerable years. It’s something evident in his view of Lily, even though he was joining a group that literally wanted to kill people like her, and I can see it applying to his view of the Malfoys as well. Though they were a family actively working to end people like Lily, and Severus would ultimately have to confront them if it came to it, he’d still struggle to sever his emotional ties with the Malfoys. Just as he couldn’t understand why his friendship with Lily was ending because of his choices, I don’t think he’d be able to emotionally cut off the Malfoys, even if he knew they were terrible or knew he might eventually have to face them in battle. Much like how Lily being the first person to treat him with kindness was enough to make him risk everything to atone for his indirect role in her death and his support of Voldemort, I think Lucius “taking him in” also carved out a streak of loyalty in Severus toward his family. Severus strikes me as someone fiercely loyal to anyone who’s shown him kindness or understanding, even if that loyalty is against his own interests. And despite everything, I think he genuinely cared about the Malfoys. While he no longer admired Lucius, I think he still respected him in a certain way, like a younger brother who knows his older brother is a jerk but still sees him as his older brother.

I also think Narcissa had a kind of “older sister” vibe for him—that when she and Lucius were dating and Severus was still a kid, she saw him as this scruffy little guy, like a cute but poor puppy. And that impression probably stuck with him too. I think he always felt more comfortable with her than with Lucius, since she was associated more with the maternal than with authority. While his favoritism toward Slytherins was partly to maintain appearances and partly due to resentment toward Gryffindors, I believe he genuinely liked Draco. This affection, though, was likely another form of cognitive dissonance because Draco was far more similar to James than Harry ever was (in terms of character, classism, and using his status, family name, and influence to torment others). But just as his hatred of Harry was a reflection of his resentment toward James, his affection for Draco was probably a reflection of his relationship with Lucius and Narcissa.

[heavenseed76]

Arco Iris

Summary: Everyone in the Andromeda Galaxy viewed the world in shades of grey. Until they met their soulmate. The Mandalorian’s quest completed, he is without purpose. Finding his soulmate might be the push he needs or it might just be another thing to run away from.

Rating: PG13 (for now)

Warnings: swearing, mentions of violence

A/N: Pinterest Board for this fic

Chapter 1

Chapter 2 - The Date

He didn’t intend to run. He really didn’t. His feet were moving and he was outside the city before he could stop himself. It was overwhelming, the colors. Everything was more alive, textures deeper, contrasts sharper, everything more. He stopped when he came to the cart of supplies covered with a tarp bearing the magistrate’s sigil, resting his arm and head on the packed crates, closing his eyes to the chaos to catch his breath. He absently noted the sigil was the same color as the clay pots he’d seen throughout the streets.

“Can we talk?” A hand on his elbow and the voice close to his helm gave him a start. Serafim stood next to him, frowning beneath her gauzy cloak. “Sorry.”

Din was distracted. It was a feeling so foreign that, mixed with the sensation of seeing in full color for the first time in his life, made him feel drugged. A stranger getting so close without notice had him putting a hand on his blaster. Sera’s eyes flicked down to his hand, not missing the gesture.

“Just talk, Mandalorian. That’s all. This is a shock to me too. I’m not armed.” Sera took a step away and held up her hands in surrender.

Din forced himself to let go of the blaster and put his hands at his sides. “I’m sorry. I said I would bring these supplies to the Magistrate’s office.” He said dumbly, his tongue thick in his mouth. “When?”

Sera smiled. “2200? I perform in the square, then we can go somewhere? I have to see to my grandfather, otherwise it would be earlier -”

“2200 is fine.” Din stopped her with a placating gesture. “In the square.”

Sera gave a small bow in farewell. “In the square.”

Din watched her walk away, her graceful form blending in to the tide of people that had begun to swell in the morning surf of Nevarro’s main thoroughfare. She stopped at the gate and glanced back for a moment, flashing a bright grin, before getting completely swept up by the crowd.

%%%

Even with the beskar, he could blend in to the shadows. This, he was good at. He watched her leave Ezekiel’s home - her home, carrying an instrument case and a satchel, and followed her to the square. Others were setting up on the make-shift dais, who Sera greeted with affectionate familiarity, all warm embraces and the occasional kiss. She was dressed differently, wearing a flowing tunic and loose pants, her hair half tied back with a scarf. Din noted the contrast between the fabric and Sera’s skin tone, wishing he knew the name of the color. Several metal barrels were set alight and their flames brought her features into relief as she set about helping the others prepare, blazing smile ever present on her face.

The colors had faded somewhat for both Din and Sera, but even the most muted colors were more than either of them had ever experienced. Din was mesmerized by the play of the firelight against Sera’s dark skin as she moved. Eventually the cantina began to empty and she opened her instrument case along with the other musicians, bringing out a large stringed instrument that she placed between her knees as she sat on a stool. She pulled out a long, thin piece of wood and, pushing the sleeves of her tunic up, she began to play. Din wracked his brain trying to remember the name of the instrument, but simply watching her from where he stood in the shadows, her unabashed joy and the emotion flitting over her features was an all-encompassing distraction. Passersby began leaving credits in Sera’s open instrument case, many stopping to listen and a few even stopping to dance. The music was full of a simple sort of joy, the words of the songs lost to Din, but the melodies echoing sea shanties and folk songs. They were songs carried from port town to port town and base to base by lonely rebels and even lonelier mercenaries. They were love songs and songs of loss, songs about X-wing pilots that never returned to Yavin and losing your ship in a game of sabacc. Somewhere in the performance, the singer introduced the band, giving a flourish toward “the beautiful Sera, on the cello”. Din filed that kernel of information away as Sera stood and gave an outrageous howl, eliciting another round of applause.

Din watched for over an hour, until the crowd grew thin. With some trepidation he pulled off his helmet. In the nearest shop window, he looked at himself. He’d spent most of the day contemplating: helmet on or off. The cognitive dissonance with which he’d been living, having learned that his entire upbringing as a Mandalorian was based on a twisted, bastardized version of the creed, gave him pause. If he left the helmet off, it was one less bridge he would have to cross. Sera would know what she was getting, if this went anywhere. Quickly fixing an errant curl, he stepped out of the shadows and leaned against a wall across the square. When the applause ended and the few audience members started gathering themselves to leave, Din approached the open instrument case. He noted the single credit coins amongst a few five and ten credit coins. Without calling attention to himself, he pulled a few credits out of his pouch and dropped them into the case.

“Mando?” Sera called from the other side of the stage.

“Sorry. I’m early. I thought I would see a bit of your performance.” Din was glad to have at least one hand occupied, holding his helmet under his arm as he stood a good foot below Sera, unsure how to hold himself.

“I wasn’t sure it was you without the whole get-up.” Sera smiled brightly. Din grinned stupidly back. “I’ll get packed up and we can go.” Sera collected the credits in the case and stood, turning away quickly. She faltered for a moment, looking down at the credits for a long moment before putting them in the pouch at her hip.

Din leaned on the edge of the dais as Sera helped the band pack up, taking in the muted colors of the night and the shadows that came with darkness. He caught snatches of conversation, mostly about him, some about the unexpected weight of the purse on her hip.

“Are you sure you’re ok with the Mandalorian, Sera?” a male voice asked. He didn’t try to keep his voice low.

“No, Ash. I’ll be fine. Mando’s just going to walk me home.” Sera laid her cello down in the case beside Din and closed it, smiling sheepishly at him. “Sorry.” She whispered as she kneeled close to secure the clasps.

Din gave her a lopsided smile. “Wouldn’t be much of a friend if he didn’t look out for you.” Without preamble, Din took the instrument case before Sera could take the handle, sliding it off the dais. It was surprisingly light for it’s bulk. Sera waved at her companions who were watching her closely and slipped of the edge of the dais as well. “So where are we going?”

“Walk me home?” Sera asked shyly. “I have something I want to show you.”

Din let Sera lead the way through the hard-packed clay of Nevarro’s streets, lava that had been worn down, turned to dust and reformed into paths by millions of footfalls. He couldn’t help but steal glances at her as they walked, satchel hitting her hip, silver bangles glittering like bells as she moved. Sera would glance back and smile, her odd blue eyes wide and shy.

“Has it faded, for you?” Din asked as they rounded the corner toward the market, on the last stretch to Sera’s home.

“Yes. Everything is muted now. It’s still… more beautiful than I every imagined. But not like earlier. I’ve heard the stories, but, nothing compares to the real thing.” Sera watched her feet as they walked, her voice quiet.

“I’ve only heard about this in passing. We don’t talk about it in my culture.” Din looked up at the moon, tinted orange by the sulfur hanging in the air, ever present in the atmosphere. “I never believed in it.”

Sera rounded on Din, a big smile on her face, making him stop abruptly. “Are you a believer now, Mando?” She asked.

Din took in her tunic and pants, the silver bands around some of her dreadlocks and the color of her eyes. There were glass beads of all colors woven into her hair and sewn into the fabric of her clothing. She was a stunning woman, the center of her bottom lip moist and inviting, her teeth a perfect dichotomy to her skin. “How can I not?”

Sera just stood there for a long moment, taking in the man in front of her. He was broad, his frame mostly covered in armor over a black flight suit, but his build was obvious in the way he held himself. He had a trimmed mustache, roguish smile and a 5 o’clock shadow that suited him. His eyes, though, sad, fathomless eyes the same color as his unruly hair, were what captured her attention. He looked as if he had seen enough battle and loss for a thousand lifetimes and feared seeing enough for a thousand more. His eyes just begged for a rest, a place to lay his head for even a moment of respite. And when the side of his mouth ticked up that tiny bit? She found she wanted to offer him her own lap on which to find that rest.

“This is me.” Sera gestured to the building they were stopped in front of. Indeed they had come to the little two-story building she lived in with her grandfather. Din followed to the doorstep. “Wait here. I’ll be right back.” Sera nodded toward the table and chairs, now propped against the house. Din nodded back and handed her the cello. Their fingers brushed in the exchange and the world flashed brightly again, colors blazing full force. It knocked both of them back on their heels.

Flustered, they pulled apart, Din grabbing the door frame. Sera steadied herself on a piece of furniture deeper in the room. Breathing heavily, Sera backed away. “OK, you sit. I’ll be back.”

Din sat, trying to clear his head with all the new sensations flooding through it. Sera didn’t take long to return with a bottle and two glasses, as well as what appeared to be an over-sized deck of cards.

“Ever had jet juice?” Sera asked as she set the items on the table. She went about lighting one of the lanterns above the door as Din studied the bottle.

Din huffed in amusement. “You were in the rebellion?” He started working the cork out of the liquor bottle.

Sera sat down, shaking her head with a fond smile and pulling her knee to her chest. “You know your booze! My parents. My dad was an X-wing pilot. My mom was a medic.” She held out a glass as Din offered the bottle to her and poured.

“Was?” He asked as he poured his own glass.

Sera took a sip and winced, sucked the alcohol off her top lip with an audible pop and leaned her head back against the side of the house. She looked relaxed, at ease in her own space. The facade of nonchalance was one she had honed to a fine point and easily wielded. Serafim knew her unique beauty gave her the upper hand and she used it to her advantage, though she had never gone up against a Mandalorian before. She had never gone up against one who she believed was her soulmate no less, and she was unsure of how vulnerable let herself be. Din wore his armor, but carried his helmet in his hands.

The Mandalorian’s face betrayed his stature. The kind eyes and soft curls that hung into his eyelashes were in stark contrast to the hard lines and unforgiving planes of his armor. The soft flight suit and woolen cape that could be seen between each piece - those were the pieces of him that matched the lopsided grin and sidelong glances.

“Yeah…” Sera sighed. “Death Star number two. I was already with Papa Zeke. He was stable, you know? He had lived on Alderaan for a long while and well, we all know how that ended. Went into hiding when he took me in.” Sera raised her glass in a half-hearted toast and downed a long drink.

Din swirled the liquid in his glass. “I’m sorry.” Din said softly.

Sera just shrugged. “What I wanted to show you was this.” She picked up what Din had assumed was a deck of cards, but as she laid them out, they appeared to be more like children’s flash cards. Instead of numbers and letters, they were colors. Sera laid out half a dozen before she looked up at the Mandalorian across from her, who was studying the cards with unbridled awe. Meticulously hand-written Aurebesh letters spelled out familiar words he had never been able to put into context.

He reached out to draw a finger across the lettering with a shaky hand. “The colors.” Din looked up to see Sera smiling back at him in the lantern light. “Did someone make these?”

“My parents were soulmates. They made them when my mom was pregnant with me. Being grounded drover her crazy. They wanted me to know what I was seeing if I ever met mine.” Sera took another drink from her glass to hide the nervousness in her voice.

Din picked up one card and held it up to the lantern. “This one is red, like your dress.” He looked through the cards laid out on the table and picked another. “Blue. Like your eyes.”

Sera picked up the rest of the desk and shuffled through them, finding one amongst the stack. “Silver, like your armor.” It earned a smile from Din. “I spent most of the day trying to memorize them all.” Sera admitted.

Din finally ventured a drink of Jet Juice. He winced and coughed, the home-made brew going down hard. Sera gave him an amused huff. “Are you sure this is alcohol and not X-Wing fuel?” He croaked. Despite the criticism, he took another drink.

“Brewed right here at home!” Sera lifted her glass and drank down the last of it.

Din poured Sera another glass, though he eyed it with disdain. “I’ll have to introduce you to netra’gal. Mandalorian ale.”

“Oh-ho, so there will be a second date, then?” Sera gave Din a pointed look.

Din faltered. He was just moving from one breath to the next, trying to get from sunrise to sunrise. He had no plan and no goal, and he certainly never considered dragging anyone else down into his despair with him. He had been avoiding the inevitable consequences of his actions: leaving Moff Gideon alive and winning the Dark Saber from him - consequences he worked very hard not to allow to manifest in his mind lest they become real in his waking life. He was living moment to moment. He was still grieving, if he were honest, though he was sure he was not.

Din scratched at the back of his head. “Sera… my life is complicated -” he began.

“Here it comes.” Sera cut him off. “I get it, Mandalorian. I do. I wasn’t expecting this either. I just want to live a simple life, away from all the bullshit. Neither one of us signed up for this. But here we are. Don’t you want to see where this goes?” Sera was leaning over the table now, haloed by the lantern light, her expression earnest and open.

Din blinked, chastised by her levity. “Let me speak? Please?” He said softly. He waited for Sera to give a small nod and sit back in her chair. “This isn’t the first time fate or chance or whatever - that something fell into my lap. I’ve spent the last year following a path I never planned for. It’s lead me back here. And now this…” Din growled in frustration, running a hand through his hair. “Where the fuck do I even begin to explain?” He pressed the heels of his hands hard against his eyes.

With a frown, Sera reached across the table, grasped his wrists and pulled his hands away. Her touch was less of a spark and more a soothing warmth that spread down his arms as she took his large hands into her smaller ones. She could see the swell of his inner turmoil, the lines between his brow growing deeper as he tried to find the right words. His honeyed brown eyes softened when they met her clear blue ones.

“Start at the beginning.” She held his hands, smooth thumbs making patterns over Din’s calloused knuckles as he swallowed and began to speak.

They talked until the sun rose over Nevarro.

[metalgearkong]

Commentary > Game

This is going to be tough to keep short...

Spec Ops: The Line is a 2012 3rd-person military shooter. Created by Yager Development, released on PS3 and Xbox 360, and published by 2K Games, The Line appeared to be an uninspired title which blended with the mire of “realistic” military shooters of its time. Nothing about it seemed to stand out, and thus, sales suffered, and not a lot of people played this game. This is sad, as The Line has one of the most subversive stories in the entire video game industry. Few people discovered this because The Line disguises itself as a derivative 3rd-person shooter, who’s gameplay and graphics felt ancient, even by 2012′s standards.

This game is also one of the most poorly served by having a demo released. I downloaded the free demo off the PSN and was so bored with the game, I quit before the demo reached its end. As it turns out, the story and commentary the narrative has is the best aspect of the game, and no one would have guessed by looking at it (or even playing several hours of the game). I feel guilty that I was one of the suckers that this game points an accusing finger at, and after studying the story and other people’s interpretation of the story, I felt compelled to replay it to notice the clues and subliminal messages.

Spec Ops: The Line takes place in the city of Dubai, devastated by sand storms. The unique location appears to be the only creative aspect of the game at first. We control Captain Martin Walker (Nolan North) and his small team known as “Delta Squad.” Their mission is to detect if there are any survivors in Dubai after the sandy calamity. A failed evacuation attempt was lead by one of Walker’s heroes, Colonel Konrad (Bruce Boxleitner), and his 33rd division. The game begins so straightforward, you would never anticipate the twists to come.

The story is a subversive commentary on what heroism is, and the effects of war has on people often not covered in video games. Walker frequently defies orders in order to serve a personal mission of his. He intends to find out of Colonel Konrad is alive, no matter what, or who, stands in his way. He does so with little to no evidence of Konrad’s fate. Even your two squad mates protest your new quest, saying it has nothing to do with their orders, and has no logical grounding. The clues are subtle at first, but the second half of the game begins to treat players with a rich, metaphorical story that makes players feel bad for enjoying mass slaughter.

One of the first disturbing elements of the game is shooting US Army soldiers by the hundreds. Most of this game’s common enemies are genuine, uniformed, clean-cut American soldiers. Walker, and the player, assume the 33rd division MUST have gone rogue, and Konrad is behind it all. This personal missions allows Walker to justify anything he does, if it means getting answers from Konrad. Delta Squad never takes an opportunity to stop and try to communicate with the 33rd, driven by the cognitive dissonance that they are here to “save” people, while killing everyone in sight.

The game’s most infamous scene has you, the player, bomb an entire camp of soldiers using a white phosphorus mortar. We man a black and white screen as we see through the thermal camera where are targets are. This type of scene is par for the course for modern military action games. Seeing enemies run in fear as you bomb them is almost fun--like shooting fish in a barrel. I was so bored with the scene I killed everyone on site as causally and quickly as I could, in order for it to be over as quickly as possible. What you didn’t know is most of the people you burned to death were civilians. You followed your on-screen objectives, and Walker deemed it necessary to punch through “enemy” lines. Not only that but the game forces you to walk through all the bodies you’ve burn, including the now infamous woman and daughter pictured below. Feel like a hero yet?

Later in the game, Walker’s actions and words get more and more hateful, as his mind crumbles from the white phosphorous incident. The guilt turns to madness, and the game has a powerful twist that Colonel Konrad has been dead the entire time. The voice of Konrad that Walker had been “speaking” to has been a figment of his imagination. It was a tool to justify mass murder. My honest question to the developers are, if the 33rd were good all along, why do we see scenes of them attacking refugees and threatening them? If the clues are truly laid out, we should have see no true moment of the soldiers of the 33rd acting with cruelty.

Theorists consist that Walker and his squad died in a chopper crash, a scene happening in Chapter 11 out of 14. Everything after the crash is inside Walker’s own personal version of Hell. Chapters 12-14 mimic real life, but are truly figments of Walker’s psyche as his mind works through the trauma. Depending on some key moments throughout the game, mostly driven by the player’s actions, The Line has a few different endings. Several scenes have hidden moral choices that the play may or may not know they are participating in. The player’s actions color the ending of the game as almost a hidden morality mechanic. However illustrated, the base fact is agreed upon that Walker is living in his own personal Hell, torturing himself for the atrocities he’s committed. The game goes even further by not making you FEEL like you ARE Walker, but that you are AS BAD as he is.

The story has even more layers than that, but that’s the gist of it. My main complaint of the game is wishing it wasn’t so cut-and-paste with its gameplay. I feel that The Line could have made its point just as well, even if the gameplay wasn’t so intentionally derivative. Making the game especially difficult, or having some kind of other uniqueness about it, would have made playing the game more fun, and the deep narrative twist would have only made the game better. I am also not so sure the commentary is 100% fair and thought out, cheating on occasions to maintain the illusion that everything is happening in reality.

But, I give Yager studios all the credit in the world for attempting something so different. What we learn “The Line” means in the title is what is considered going “too far” in war. Is everything heroic when acting under orders from your government? Can enjoying similar games without this subversive commentary and just as much of a kill count mean you are bad for enjoying it? I just wish this game didn’t appear and play so plainly, as millions more people could have enjoyed the game and experienced the twist. It’s too bad we’ll never see a sequel, and all of The Line’s complexities are only now being explored years after its release. A very good concept bogged down by mindless gameplay.

[derechointernacionalpublico]

The Status of Treaties in Domestic Law

The Status of Treaties in Domestic Law

by David Stewart

by David Stewart

[David P. Stewart is Professor from Practice at Georgetown University Law Center.This is the third post in our symposium this week on treaty supremacy.]

How are we to explain the yawning gap between the Founding Fathers’ clearly “monist” ideas about the role of treaties in our domestic legal system and the much more circumscribed “dualist” concept reflected in the Supreme Court’s Medellin decision? That’s the task David Sloss set for himself in The Death of Treaty Supremacy, and he succeeds in leading us on a long and detailed explanatory journey from 1789 up through 2008.

There can be little doubt that the Founders meant for treaties entered into by the new United States not only to be federal law but also (and more importantly) to bind the states and directly to override contrary state law. As Sloss demonstrates, the very point of the Supremacy Clause was precisely to prevent state governments and courts from frustrating critical treaty obligations of the new nation. To that very end, in Ware v. Hylton (1796), Justice Chase explicitly equated treaties with the Constitution itself. This “treaty supremacy” rule, Sloss notes, survived essentially unchallenged until the period immediately following World War II.

However, early on, the federal courts adopted an interpretation of the Supremacy Clause according to which some treaties (denominated “non-self-executing”) were considered not to have effect unless legislatively implemented.   As Sloss notes, the “non-self-execution” doctrine dates back to Chief Justice Marshall’s opinion in Foster v. Neilson (1829). Properly understood, however, this doctrine spoke only to the allocation of authority to implement treaties at the federal level, between the legislature and the executive, and had no effect on the treaty supremacy rule.

It was not until the 1952 decision of the California Supreme Court in Sei Fujii that the non-self-execution doctrine was applied to limit the treaty supremacy doctrine, with the result that treaties denominated “non-self-executing” were no longer understood to supersede conflicting state law. Why the California court chose that path, and why its approach gained traction including most importantly in the Restatement (Second) Foreign Relations Law, lies at the heart of Sloss’s story of “invisible constitutional change.”

His explanation weaves together a variety of factors, among others the provisions of the United Nations Charter and its non-discrimination obligations, the constitutional inability of the federal government at the time to prohibit racial segregation in the states, early Cold War politics, the nascent human rights movement, and cognitive dissonance theory. It is, in his view, a tale of constitutional transformation through judicial interpretation, rather than through the ballot or the amendment process, and therefore largely “invisible.”

Sloss acknowledges that the so-called “Fuji doctrine” did serve crucial political purposes by helping to mediate the tension between human rights and states’ rights and thus to defeat the so-called Bricker Amendment. Substantively, he embraces the doctrine as a defensible interpretation of the Constitution, while rejecting some of its more recent transformations, including the “no private rights of action” and “non-judicially enforceable” interpretations. His problem is with the lack of political transparency in the process, which he considers perhaps less than fully consistent with principles of democratic legitimacy.

There is something to be said for this criticism, since in Foster (and subsequent decisions) the Court effectively inserted the word “some” before “treaties” in the Supremacy Clause. Yet the story of our Constitution is largely one of judicial adaptation and reinterpretation in light of changed circumstances. For a technical question like treaty supremacy, it is hard to see how a plebiscite or process of formal amendment with respect to the treaty power might actually work. The specific concerns that motivated the Bricker Amendment during the early 1950’s are no longer present, but the underlying federal-state tensions are still there, very real and very much alive. Listen to the recent debates about ratifying the Convention on the Rights of Disabled Persons, or the Convention on the Rights of the Child, or the Convention on the Elimination of All Forms of Discrimination Against Women, and you’ll hear sharp echoes of the principles at stake in the Bricker controversy. In fact, versions of the Bricker Amendment are still introduced in the House and Senate from time to time. The treaty supremacy issue was debated at the Constitutional Convention in 1787 and in the ensuing state ratification process, and it hasn’t gone away.

Sloss notes with some approval how the issue was dealt with in the Restatement (Second) Foreign Relations Law but he gives little attention to the Restatement (Third) in 1986. The Reporters for that edition had a clear preference for self-execution and supremacy. While they acknowledged, in sections 111(3) and (4), that as a matter of U.S. law “non-self-executing” agreements will not be given effect as law in the absence of necessary implementation, and that some categories of treaties may presumptively fall in that category, they emphasized (in RN 5) that treaties are generally binding on ratifying states whether or not they are self-executing. “The purpose of having a treaty self-executing is to make it easier for the United States to carry out its international undertakings.” In addition, they noted, “[s]elf-executing treaties were contemplated by the Constitution and have been common. They avoid delay in carrying out the obligations of the United States. They eliminate the need for participation by the House of Representatives (which the Framers of the Constitution had excluded from the treaty process), and for going to the Senate a second time for implementing legislation after the Senate had already consented to the treaty by two-thirds vote.”

But a careful study of treaty practice over the past 30 years demonstrates that this preference for self-execution has not been shared by either the executive or legislative branches. In point of fact, almost all treaties today (bilateral or multilateral) are legislatively implemented. Very few are actually self-executing in the sense that they are directly applicable as federal law and override inconsistent state law.

Several reasons for this resistance to self-execution can be suggested. Perhaps most important is the drastically changed nature of treaties today. At the time of the Founding, most treaties were bilateral and involved straightforward questions of bilateral relations like war and peace, boundaries and trade. These were clearly matters for which national governments were accountable and unable to tolerate non-compliance by their subordinate components (like provinces or states). Today, treaties (especially multilaterals) increasingly deal with internal or domestic matters (such as human rights, criminal matters, family law, tax, intellectual property, jurisdiction, etc.) and to do so in great detail. They are often matters on which substantial domestic law already exists. Moreover, for federal states, they can implicate sensitive questions about the allocation of authority between the national and subnational governments. When they are negotiated in international organizations whose members are drawn from every part of the world and thus have markedly different legal systems and approaches, the final wording of the treaty is frequently so unique that it simply cannot be directly incorporated into domestic law (at least in the United States). As a technical level, little reason exists to support the proposition sometimes heard that “if it’s agreed to by the world community, it has to be better than domestic law.”

A more direct way of describing these changes is to say that treaties increasingly perform law-making functions. When that’s the case, it’s hard to argue against a preference for legislative implementation — although the difficulty (or impossibility) of getting such legislation often motivates those who argue in favor of self-execution, as indicated by the Reporters’ Notes cited above.

Most do not read the Supreme Court’s decision in Medellin as reflecting a clear presumption against self-execution, but there’s little question that in rejecting the President’s argument that he could unilaterally convert a non-self-executing treaty into a self-executing one, the Court saw the difference as involving a law-making function that necessarily involves the Congress. On that point, one has to think that, if the Founders could appreciate the very different nature and role of treaties in the contemporary world, they would agree.

[via Opinio Juris]

http://www.dipublico.org/105192/the-status-of-treaties-in-domestic-law/