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12/06/2012

The Treatymaking Clause Lives
Michael Ramsey

At Opinio Juris, Peter Spiro reports that the Senate voted down the proposed Convention on the Rights of Persons with Disabilities, 61-38 (that is, by a wide majority but short of the "two thirds of the Senators present" required by the treatymaking clause of Article II, Section 2.  (Via Professor Spiro, AP coverage here).

Professor Spiro comments: 

Anti-treaty forces clearly no longer represent a majority of the American people.

Might the second term present an appropriate juncture for a constitutional gambit? Assuming that 15 Republicans could be brought across the aisle, any of these or other agreements (eg the Children’s Rights Convention) could be submitted and approved as congressional-executive agreements, that is, with simple bicameral majority support. The US failure to sign on to broadly subscribed multilateral agreements is making us look stupid. Let’s update our constitutional mechanisms (a continual process with many, many examples in the realm of foreign relations) to better serve the national interest on the global stage.

Three comments:

(1) Academics have long anticipated (and indeed declared) the demise of the treatymaking clause.  The venerable Restatement (Third) of Foreign Relations Law of the United States says that congressional-executive agreements of the kind suggested by Professor Spiro "can be used as an alternative to the treaty method in every instance" (Section 303 comment e).  But I suspect that this episode, as with a number of others in recent times, will actually show the opposite.  Apart from trade agreements, the congressional-executive agreement has not replaced the Article II treaty process for major international agreements as a matter of practice.  Perhaps the "constitutional gambit" Professor Spiro suggests will occur, but if it does it will be a substantial departure from prior practice, not a continuation of it.

(2)  There are good reasons behind the treatymaking clause's supermajority requirement and its departure from the process of ordinary legislation.  First, as the framers recognized, an international agreement should have a broad national consensus behind it because of the difficulty of reversing it.  Ordinary legislation can be repealed; international agreements, to be sure, can be ignored by later domestic majorities, but not without cost internationally.  In the framers' day, the supermajority rule for treaties was driven by concern that bare sectional majorities would commit to obligations unfavorable to the rest of the country; today, the supermajority rule similarly assures that an international commitment is not entrenched by temporary partisan majorities but rather has strong bipartisan support.  Second, treatymaking isn't subject to the Constitution's enumerated powers limitations on ordinary legislation.  Particularly with modern human rights treaties, treaties' subject matter often implicates matters traditionally governed by the states.  The supermajority requirement gives some compensating assurance that the federalism balance will not be upset through treatymaking.

(3) Even if the treatymaking clause is a bad idea, in a constitutional system the way to "update" it is by amendment (as was proposed, with respect to the treatymaking clause, in the immediate post-World War II era).  The point of the Constitution is precisely to block certain legislative actions even if the representatives of a majority of the American people support them.  To say that we should casually "update our constitutional mechanisms ... to better serve the national interest" (other than by amendment) is to say that we shouldn't have constitutional limitations.