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04/10/2016

David Sloss: The Death of Treaty Supremacy
Michael Ramsey

David L. Sloss (Santa Clara University School of Law) has posted Introduction: The Death of Treaty Supremacy: An Invisible Constitutional Change (from D. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change, Oxford University Press, 2016, forthcoming) on SSRN.  Here is the abstract:     

This book provides the first detailed history of the Constitution’s treaty supremacy rule. It describes a process of invisible constitutional change that has previously escaped the notice of historians and legal scholars. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President.

In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights “for all without distinction as to race.” In 1950, a California court applied the Charter’s human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker’s supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The NSE exception permits state governments to violate NSE treaties without authorization from the federal political branches. The transformation of the treaty supremacy rule has significant implications for federal supremacy, U.S. foreign policy, and U.S. compliance with its treaty obligations.

I've read most of the book in prior draft versions, and it is an important and substantial contribution.  In addition to providing interesting insights on the constitutional status of treaties, it raises broader questions about the modes of constitutional change.

My thoughts on treaty supremacy and self-execution (which are similar but somewhat different) are here.