David L. Sloss (Santa Clara University School of Law) has posted Taming Madison's Monster: How to Fix Self-Execution Doctrine (Brigham Young University Law Review, forthcoming) on SSRN. Here is the abstract:
In the Federalist Papers, James Madison invited readers to consider a hypothetical Constitution providing for the supremacy of state law over federal law. In that case, he said, “the world would have seen . . . the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.” The modern doctrine of non-self-executing treaties (NSE doctrine) illustrates the problems posed by Madison’s hypothetical monster.
In practice, judicial application of NSE doctrine is almost entirely arbitrary. Courts decide whether a treaty is self-executing by invoking a fictitious “intent of the treaty makers.” If a court holds that the treaty makers intended the treaty to be self-executing, it places congressional inertia on the side of treaty compliance. But if the court holds that the treaty makers intended the treaty to be non-self-executing, it places congressional inertia on the side of non-compliance. Since courts do not want to admit they are making decisions about treaty compliance, they hide behind a fictitious “intent of the treaty makers” to evade responsibility. Insofar as state courts engage in this behavior, Madison’s monster is real. However, federal court decisions applying the fictitious intent test are more numerous than state court decisions. Therefore, the main problem involves a transfer of power over treaty compliance decisions from the political branches to federal courts. Treaty violations by state and local government officers are largely a consequence of federal court decisions applying a fictitious intent test to justify a holding that a treaty is not self-executing.
This article analyzes the fictitious intent test, focusing on the practical implications for the supremacy of treaties over state law. Part One distinguishes among three concepts of self-execution. Part Two summarizes the historical evolution of NSE doctrine. Part Three analyzes the Supreme Court’s opinion in Medellín v. Texas; it demonstrates that the Court applied a fictitious intent test in Medellín. The Court’s decision effectively authorized state government officers to breach U.S. treaty obligations, contrary to the express policy goals of the federal political branches. Part Four presents recommendations designed to ensure that, in matters related to treaty implementation, the head retains control of the members — not just in theory, but also in practice.
This article is another contribution to the excellent forthcoming BYU Law Review symposium on treaty law (my contribution, also on self-execution, is here).
I completely agree with Professor Sloss about what he aptly calls the problem of "fictitious intent" in treaty interpretation. Too often, judges or other interpreters are not finding anything in the text of the treaty that suggests non-self-execution; rather, they are asking whether it seems reasonable to think that the treatymakers wanted the treaty to be non-self-executing. Leaving aside the question whether the treatymakers have constitutional power to make a treaty non-self executing (that's the subject of my paper), the problem is (Professor Sloss argues, and I agree) that a judge in this exercise ends up asking whether it's reasonable for the treaty to be non-self-executing, which in turn is really asking whether the judge thinks it ought to be non-self-executing. Thus the views of the judge substitute for the views of the treatymakers.
I would add that this is just a specific case of a wider interpretive problem that arises interpreters try to guess what the drafters wanted, instead of trying to figure out the meaning of the words the drafters wrote. What tends to happen is that the interpreter concludes that the drafters would probably want what the interpreter thinks is the best result. After all, the drafters were smart, reasonable, practical people, and so is the interpreter. So it's natural that they would come to the same conclusion!