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02/20/2017

Opinio Juris Symposium on "The Death of Treaty Supremacy" by David Sloss
Michael Ramsey

At Opinio Juris, the editors have put together an online symposium on the outstanding book The Death of Treaty Supremacy by David Sloss (Santa Clara).  Here are the contributions:

The Treaty Supremacy Rule: Is a Partial Revival Possible?, by David Sloss

Dubinsky on The Death of Treaty Supremacy, by Paul Dubinsky (Wayne  State)

Treaty Supremacy, International Legal Process, and the Origins of the International Human Rights System, by Peggy McGuinness (St. Johns)

The Modern Doctrine(s) of Non-Self-Executing Treaties, by John F. Coyle (UNC)

The Origins and Fall of Treaty Supremacy and Its Significance, by Thomas Lee (Fordham)

Treaties in Constitutional Time, by John Parry (Lewis & Clark) 

The Status of Treaties in Domestic Law, by David Stewart (Georgetown)

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule, by Carmen Gonzalez (Seattle)

The Death of Treaty Supremacy: An Invisible Constitutional Change–Introduction to Opinio Juris Book Symposium, by David Sloss

Although the book is a broad historical account, it has strong originalist implications.  From the latter post, here is the author's summary:

The book’s central claim is that an invisible constitutional revolution occurred in the United States in the early 1950s. From the Founding until World War II, the treaty supremacy rule, codified in Article VI of the Constitution, was a mandatory rule that applied to all treaties. As originally understood, the rule consisted of two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law.

...

The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. However, the advent of modern international human rights law sparked a process of invisible constitutional change. ...

Thus, modern doctrine holds that the treaty makers may opt out of the rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing” (NSE). In sum, the de facto Bricker Amendment converted the treaty supremacy rule from a mandatory to an optional rule by creating an exception for NSE treaties.

Although I have some quibbles with Professor Sloss' description of the original rule, I think his account of both the founding and the re-invention of non-self-execution is basically correct.  (My thoughts on the original meaning of treaty supremacy and self-execution are here.)  I have no doubt that the current doctrine of non-self-execution is, at minimum, substantially confused and, in some applications, substantially different from the original meaning.

The question is what to do with that conclusion.  For an originalist, it may seem obvious -- the modern doctrine is too confused to be entrenched, so we should attempt to recover the original meaning (that's my idea, in this paper).  This also seems to be Professor Sloss' implication throughout the book.  But for nonoriginalists, it's not clear there is a problem.  Treaty law evolved in response to the evolving role of treaties.  That's what nonoriginalists say should happen.  People who are not usually originalists should think carefully before becoming unduly upset by this, simply because they happen to think non-self-execution is a bad idea.

For myself, I think a strict self-execution doctrine is problematic in the modern world, given the extent to which modern treaties are aspirational, multilateral, wide-ranging and deeply intrusive on purely domestic legal rules.  The non-self-execution rule that evolved in the mid-twentieth century mitigates that problem, and Congress' power to implement treaties (see here) prevents divergence between treaty law and domestic law from becoming too troubling.  I would say it works pretty well to have the U.S. treatymakers decide whether a treaty should be self-executing or non-self-executing.  That, however, is not the original meaning of the supremacy clause.