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Treaties as Law in the Post-Ratification Era
Michael Ramsey

As I noted earlier, this week Opinio Juris has been hosting an on-line discussion this week of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011), a book I co-edited with David Sloss and William Dodge.  Though not a work of originalism, the book includes an account of how the Court treated international law in the early post-ratification era, including on issues implicating international law’s constitutional status.  Because originalist-oriented scholars may count this practice as evidence of the Constitution’s original meaning on these matters, I will highlight here and in subsequent posts a couple of the book’s key findings.

In the modern treaty law, a key question is whether a treaty is “self-executing” – that is, whether it is directly enforceable by courts without implementing legislation.  The Constitution’s Article VI says that “all” treaties are “the supreme Law of the Land” – language it also uses to describe statutes and the Constitution itself, thus indicating that treaties ordinarily can be enforced directly, as statutes and the Constitution can.  In the 2008 decision in Medellin v. Texas, however, the Court refused to enforce a treaty (Article 94 of the U.N. Charter) without implementing legislation and indicated generally that courts should closely scrutinize a treaty to see if the treatymakers’ intent was direct or indirect enforcement.  The Court even suggested at one point that a treaty would not be self-executing unless its text and context indicated that self-execution was intended.

The early history of treaties in the Supreme Court indicates, perhaps to a surprising extent, the Court’s willingness to apply treaties directly without implementing legislation.  The 1796 case Ware v. Hylton, in which the Court used the 1783 peace treaty with Britain to override a state law preventing recovery of debts owed to British creditors, is well known.  But it is less well known that the Court decided dozens of cases involving treaty-based claims in its early years.  For its first 30-plus years, not a single one of those cases asked whether the treaty obligations in question were or were not directly applicable: every case assumed they were.  In 1829, Chief Justice Marshall’s opinion in Foster v. Neilson pointed out that a treaty might in fact only impose obligations on Congress, and if so, the Court could not enforce the treaty’s provisions until Congress acted.  This point itself was not novel: the 1783 peace treaty, in a different provision than the one applied in Ware, directed that “Congress shall earnestly recommend” that states restore confiscated loyalist property (a provision obviously not judicially enforceable).  In Ware itself, Justice Chase wrote that “no one can doubt that a treaty may stipulate that certain acts be done by the Legislature”  (3 U.S. at 244). Marshall thought the treaty at issue in Foster imposed obligations only on Congress (though he later changed his mind).

But the experience of treaty enforcement in the early post-ratification period shows that the Court thought that the ordinary language of treaty obligations almost always created directly enforceable rules.  Further, the Court thought treaties routinely created rights that could be enforced by individuals, and it routinely ruled against the U.S. executive in treaty cases.  (See Chapter 1, Part II of the book).  Indeed, these practices continued long after Foster.  As the book’s later chapters show, the modern idea of “non-self-executing” treaties (and the related idea that treaties often do not create rights enforceable by private individuals) did not gain much traction until after World War II.

In an illuminating comment on the book at Opinio Juris, Jeremy Rabkin suggests that the changing nature of treaties underlies the doctrinal embrace of non-self-execution.  I think this may well be correct:  particularly after World War II (corresponding to the rise of non-self-execution doctrine) treaties became increasingly multilateral, aspirational, and intrusive upon domestic legal arrangements – all developments that made judicial enforcement more problematic.

If true, this account suggests that treaty non-self-execution is an instance of living constitutionalism – courts “updating” the Constitution’s text to take account of perceived new realities.  That conclusion may in turn be somewhat unsettling to both sides in the debate over originalism.  As an admitted over-generalization, with modern political and jurisprudential alignments an inclination toward originalism may correspond with a suspicion of international law (and suspicion of originalism may correspond with an embrace of international law).  It’s worth noting that the Court’s originalists in Medellin found the treaty at issue to be non-self-executing without any explanation of how their approach accorded with the Constitution’s text or post-ratification practice.  And internationalists may be observed invoking the text and early history of treaty enforcement as dispositive of the Constitution’s true meaning on that point yet affirming the need for constitutional evolution elsewhere.  As in some other areas I have highlighted, treaty enforcement may be an issue where the Constitution’s original meaning puts modern political and jurisprudential commitments in conflict. That, of course, makes it all the more interesting.