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Adil Haque Profile picture
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14 Dec, 8 tweets, 3 min read
1. Now that you've all read my latest post on aggression and self-defense, you're no doubt wondering:

WHAT ABOUT JUS COGENS?!

WHERE IS THE JUS COGENS CONTENT WE EXPECT FROM THIS ACCOUNT?!

Well, since you asked ...
2. The thirteen-power draft stated in its preamble that the use of force by one State or a group of States against another State or group of States violated a peremptory norm of international law. Image
3. Bulgaria, Colombia, Ecuador, and Peru agreed. ImageImageImageImage
4. Israel had thoughts. Image
5. Finally, one State put forward the fascinating theory that self-defense is not an exception to the prohibition of force, but instead a circumstance precluding responsibility (an excuse) ... for the breach of a jus cogens norm?!

Is that possible? Idk ask @federica_paddeu ImageImage
6. But which State?!
7. Ecuador! ImageImage
8. That's it. I hope you've all enjoyed your daily dose of jus cogens. Stay well!

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More from @AdHaque110

Adil Haque Profile picture
17 Dec
1. This THREAD has everything.

Jus cogens.

Hans Kelsen.

The Israel-Egypt conflict.

The right of self-defense and Article 51 of the United Nations Charter.

Buckle. Up. 🧵
2. On August 1, 1951, the UN Security Council met to discuss "Restrictions imposed by Egypt on the passage of ships through the Suez Canal" bound for Israel. Image
3. Mahmoud Fawzi, Egypt's UN representative, claimed that a state of war still existed between Egypt and Israel, despite their 1949 General Armistice Agreement, and that Egypt retained its belligerent right to visit and search neutral vessels for war materials. Image
Read 20 tweets
Adil Haque Profile picture
5 Nov
Original Generous Purposive Contextual Large and Liberal Originalism (TM)
Original No Rigid Hierarchy Among Interpretative Guides Originalism (TM)
Lol "courts ought 'not to read the provisions of the Constitution like a last will and testament lest it become one."
Read 7 tweets
Adil Haque Profile picture
21 Oct
Supports my sense that, when original meaning is ambiguous, Barrett will adopt neither a presumption of constitutionality, nor a presumption of liberty. The best understanding controls.
Did Mitch Berman write this question?
Supports my sense that Barrett's Kanter dissent took a disjunctive approach: gun regulations are constitutional if they are either historically rooted or satisfy the relevant level of scrutiny (strict, in that case).
Read 20 tweets
Adil Haque Profile picture
12 Oct
1. Barrett likely thinks that compliance with international law is not the concern of the judiciary.
2. In 2010, Barrett strongly indicated that she rejects the Charming Betsy canon, that is, "the rule that where one
interpretation of a statute would compromise the international obligations of the United States, the court should adopt any other plausible interpretation."
3. Why? Because compliance with international law is a policy value, rather than a constitutional value. And policy questions are for the legislature (and presumably the executive), not for the judiciary.
Read 6 tweets
Adil Haque Profile picture
12 Oct
1. Interestingly, Barrett probably agrees. In 2010, Barrett accepted that statutory textualism was not dictated by original meaning/understanding or historical practice.

scholarship.law.nd.edu/cgi/viewconten…
2. At that time, Barrett argued that courts are "faithful agents" of the legislature, and textualism best preserves legislative compromises. Later, her view changed.
3. In 2017, Barrett argued that courts are faithful agents of the people, and that fairness to the people requires interpreting statutes according to their public meaning.

lawreview.uchicago.edu/sites/lawrevie…
Read 5 tweets
Adil Haque Profile picture
12 Oct
1. This is excellent. But.

Yes, Barrett thinks most super-precedents will never come to the Court. Paper money is safe, etc.

But, Barrett shares "the [originalist] commitment to treat the constitutional text as controlling when the question is called." scholarship.law.upenn.edu/cgi/viewconten…
2. Yes, Barrett thinks overruling precedent requires “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.”

But, its view only needs to be compelling to fellow originalists ("methodological friends" in the literature).
3. Finally, I haven't seen Barrett endorse a particular standard for reversal, like "demonstrably erroneous." My sense from her later writings is that the most plausible reading controls. But this is an inference from her view that original meaning *is* the law.
Read 4 tweets

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