‘Breard,’ Our Dualist Constitution, and the Internationalist Conception

Authors

Curtis A. Bradley, Duke Law SchoolFollow

Document Type

Article

Publication Date

1999

Abstract

In its decision last Term in 'Breard v. Greene,' the Supreme Court refused to stay the execution of Angel Breard, an inmate in Virginia, even though Virginia had violted a treaty on consular relations and the International Court of Justice had ordered the United States to "take all measures at its disposal" to stay the execution. The international law academy has been heavily critical of the Supreme Court's decision and other aspects of the United States' handling of the Breard case. In this article Professor Bradley argues that the criticisms by the academy reflect an "international conception" of the relationship between international law and U.S. domestic law. This conception presumes that international law must be incorporated into domestic law, that international law should supersede domestic law when the two conflict, and that "foreign affairs exceptionalism" should provide the federal government with expansive ability to enter into and implement international obligations. Using Breard as a case study, Professor Bradley argues that the internationalist conception is inconsistent with this country's traditionally "dualist" approach to international law and that it is unlikely to be accepted by U.S. government actors.

Citation

Curtis A. Bradley, ‘Breard,’ Our Dualist Constitution, and the Internationalist Conception, 51 Stanford Law Review 529-566 (1999)