Also in todays New York Times Magazine, there is an article by Noah Feldman in which he discusses important questions that will often confront the U.S. Supreme Court in the future, questions about the relationship between our Constitution and laws and international law.

This problem has many dimensions. It includes mundane practical questions, like what force the United States should give to the law of the sea. It includes more symbolic questions, like whether high-ranking American officials can be held accountable for crimes against international law. And it includes questions of momentous consequence, like whether international law should be treated as law in the United States; what rights, if any, noncitizens have to come before American courts or tribunals; whether the protections of the Geneva Conventions apply to people that the U.S. government accuses of being terrorists; and whether the U.S. Supreme Court should consider the decisions of foreign or international tribunals when it interprets the Constitution.

Here is how Feldman describes the two schools of thought on the issue:

One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country. By these lights, any interpretation of the Constitution that restricts the nations security or sovereignty for example, by extending constitutional rights to noncitizens encountered on battlefields overseas is misguided and even dangerous. In the words of the conservative legal scholars Eric Posner and Jack Goldsmith (who is himself a former member of the Bush administration), the Constitution "was designed to create a more perfect domestic order, and its foreign relations mechanisms were crafted to enhance U.S. welfare."

A competing view, championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that the Constitution specifies the law for the United States but stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, on this cosmopolitan view, faces outward. It is a paradigm of the rule of law: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order. What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally.

Strikingly absent from the description of the second position isanything corresponding to the sentence in the description of the first position, namely, that "law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people." Is it that this is considered to go without saying in the liberal position? Or is it that this is no longer considered relevant in an age that looks to an international order? I should think this is a very serious matter, if we were to find ourselves subject to laws promulgated by people we cannot elect.