Treaties, international law, and constitutional rights.
INTRODUCTION I. CONSTITUTIONAL HEGEMONY IN HISTORICAL PERSPECTIVE A. The Doctrine of Constitutional Hegemony B. Overriding Rights, Quietly C. Hegemony Entrenched II. QUESTIONING HEGEMONY A. Current Practice in a National-Interests Perspective B. Redefining Constitutional Community Upwards C. Insinuating International Law CONCLUSION
Can a treaty override an individual right protected under the Constitution? In its 1957 decision in Reid v. Covert, the Supreme Court held that the "obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." (1) There is perhaps no element of the foreign relations law canon more universally held than the proposition that constitutional rights prevail as against inconsistent international agreements; a consensus of commentators, (2) courts, (3) and other constitutional actors (4) has long held that, in this respect, the Constitution stands supreme. Even as other elements of modern foreign relations law have come under vigorous assault. (5) this constraint on the treaty power has gone unchallenged. Indeed, across the political spectrum, the rule is counted among those whose deep entrenchment eliminates the need for justification--so much so that it has attracted almost no scholarly attention in recent decades.
To the extent that the changing global context is driving the general ferment in foreign relations law, however, no element of the canon should be excused from reexamination. This Article interrogates the hegemony of domestic constitutional rights, in both historical and contemporary contexts. As a matter of constitutional design and historical practice, the case for privileging constitutional rights against international law was a strong one; although the rule may not always have been as "obvious" as it has been to the modern eye, it has never been seriously challenged. Locating the treaty power beyond constitutional constraint would have destabilized the entire constitutional apparatus. On the other hand, rights have been defined to serve national foreign relations interests. In at least three nineteenth-century contexts--extradition, the settlement of foreign claims, and the operation of consular courts--treaty regimes resulted in the override of otherwise tenable constitutional entitlements. In the modern era, international human rights norms played an important part in the expanded conception of domestic civil rights, while other individual rights were constrained in the face of foreign relations concerns. No account of twentieth-century constitutional rights is complete without international geopolitical referents. At the same time, however, the principle of constitutional supremacy was further entrenched in the constitutional discourse.
But even this bedrock constitutional principle might be questioned in the face of a transforming global architecture. The nature of treaty-making--and indeed of international law generally--has changed, moving in a direction that should systemically protect against the diminishment of rights. Where international law was once blind to individuals as such, today we find an increasingly consequential umbrella of individual rights protections in the form of international human rights norms. International agreementmaking takes place within the boundaries of that legal regime. Where states were once free to bargain away individual rights--for none were protected under international law itself--they now must account for them under other treaty and nontreaty norms. International law, in short, is itself becoming constitutionalized, at least in the sense that it recognizes the priority status of fundamental individual rights. From an instrumental perspective, the constitutionalization of international law limits the dangers of constitutional subordination.
This Article also explores a possible normative basis for vindicating the treaty power--even where certain treaty terms are inconsistent with constitutional rights. To the extent that the choice is between contending constitutional balances in the international and domestic realms rather than between the constitutional and the merely legal, no simple hierarchical answer presents itself. Rather, the question is at what level constitutional norms are appropriately located. (6) In the face of globalization and the human rights revolution, a case can be made for the international determination of baseline rights. Constitutions are community dependent, and the world is, to an increasing extent, a single community working from a shared set of core values when it comes to the definition of baseline human rights. This is not to say that the adoption of international norms should preclude state capacities to deviate from or define rights and other constitutional matters in many contexts to reflect alternative community boundaries, consistent with such international-law devices as subsidiarity and the margin of appreciation. If some constitutional norms are more appropriately set at the international level, however, that should justify a treaty power that, in some cases, overcomes even the Bill of Rights.
Insofar as the treatymakers have themselves assimilated domestic constitutional supremacy, the issue is unlikely directly to present itself. It nonetheless provides a useful focal point for considering the more likely deployments of international norms in the realm of U.S. constitutional law. If one can establish a basis for privileging international rights determinations, then international law can be put to lesser tasks as an interpretive tool. There is evidence that international law is increasingly consequential in the definition of domestic constitutional rights. This interpretive use of international law may present the best defensive strategy on the part of U.S. courts and other constitutional institutions for maintaining the formal hegemony of the domestic constitution. The frame sketched here, however, suggests that this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run.
I. CONSTITUTIONAL HEGEMONY IN HISTORICAL PERSPECTIVE
The dogma of constitutional hegemony has gone largely uncontested. The constitutional text leaves some room for argument, though the insulation of constitutional rights from inconsistent international agreements has long been considered a settled one. One can, however, identify contexts in which rights have been constructed so as to avoid the constitutional collision, as with extradition treaties, foreign claims settlement agreements, and agreements relating to extraterritorial consular court jurisdiction. Against the backdrop of other differential doctrines of foreign affairs law, one can at least call into question the entrenched rule under which individual constitutional rights are never to give way to the treaty power.
A. The Doctrine of Constitutional Hegemony
Before the mid-twentieth century, there was little focus on the status of individual constitutional rights as against the treaty power. At the first level, this lack of attention can be explained by the ostensible nonintersection of individual rights and foreign relations. (7) Where the question was engaged, it was assumed across the constitutional spectrum that treaties could not modify individual rights as defined by the Constitution.
The only prominent episode directly presenting the issue involved the interplay of treaty-based process immunity for consuls and the then-existing Sixth Amendment right of defendants to demand the testimony of favorable witnesses. A serious controversy erupted over the "attachment" of the French consul at San Francisco to give testimony in a neutrality act prosecution. A federal district court judge first ordered the French official to appear, denying the validity of the treaty defense to the exercise of the constitutional right. The court subsequently ruled that the Sixth Amendment did not require the consul's testimony, so the conflict was mooted short of a decision.8 In the wake of serious fallout on the diplomatic front, Secretary of State Marcy was unequivocal in asserting the primacy of the constitutional command:
The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition.... Neither Congress nor the treaty-making power are competent to put any restriction on this constitutional provision. (9)
In the negotiation of future bilateral agreements, the United States rejected provisions that purported to immunize consular officials from process in such cases. (10)
Otherwise, the issue was engaged on the margins of more consuming debates regarding separation-of-powers and federalism constraints on the treaty power. (11) These questions loomed large from the founding period on, and inevitably provoked sweeping statements on the relative standing of treaties and the Constitution. The Supremacy Clause itself left room for arguments as to whether constitutional limitations applied to the exercise of the treaty power. (12) Although at least one prominent commentator found the treaty power defined by sovereignty and not by the Constitution (13) (an approach prefiguring and now identified most prominently with the Court's decision in Curtiss-Wright (14)), most actors agreed that the Constitution supplied a baseline to the exercise of the treaty power. That agreement extended to the proposition that a treaty could not change the "nature" of the government of the United States and could not "authorize what the Constitution forbids," as the dominant view was reflected in Justice Field's oft-quoted opinion in Geofroy v. Riggs. (15)
While allowing for intense debate on questions of institutional allocation among the branches of the federal government and between the federal government and the states--debates that have been revived in recent years (16)--the near consensus that treaties could not overcome express constitutional prohibitions implied that they were subordinate to rights. In contrast to the allocation issues, individual constitutional rights sprang from constitutional commands, often framed in terms of direct prohibitions on governmental conduct. (17) Where comment extended to the standing of individual rights before the treaty power, it appears overwhelmingly to have asserted the primacy of the Constitution. (18)
That position is readily explained in its historical context. While the real constitutional action centered on the institutional power questions, it served proponents of an expansive treaty power to concede the Constitution's applicability, and to concede that the treaty power could not overcome its express terms. First, asserting a treaty unbridled by any constitutional constraint would only fuel the rhetorical fires stoked by those who saw the treaty power as a mortal threat to the Union, as demonstrated by attacks against those who advanced a theory of extraconstitutionality. (19) Second, insofar as the conditions of foreign relations were driving constitutional controversies over the treaty power, policymakers did not need to challenge constitutional rights frontally. On the federalism and separation-of-powers questions, there was no avoiding the constitutional showdowns, for the international relations of the day necessarily brought conflicting domestic constructs into play. For instance, with respect to the treatment of aliens--an early and recurrent flashpoint on the federalism question--national and state government authorities' interests diverged in many contexts, with treaty obligations often igniting the issue. (20) Likewise, the negotiation of commercial agreements squarely presented the scope of the treaty power with respect to powers otherwise allocated to Congress (in that context, the power to regulate commerce). (21)
These constitutional battles--and their resolutions--were largely determined by the international context. Because the international law and relations of the time did not, for the most part, concern themselves with the ways in which governments treated their own nationals, the individual rights of citizens were not implicated by the treaty power. There was no case in which an exigent national interest presented itself so as to demand the sacrifice of constitutional rights. (22)
In the absence of such a scenario, there was no real argument for overriding constitutional rights. As to all other domestic legal instruments, constitutional primacy had been established; as treaty-power alarmists were apt to stress, permitting the extraconstitutional power would have breached the constitutional armor. (23) In the old world of an exceptionally thin international rights regime and of diverse governmental systems, many of which had little regard for individual dignity, the prospect of rights ending up on the negotiating table "to conciliate some foreign friend" was not so implausible. (24) The relative weakness of the United States on the world stage would have compounded this concern. Finally, the last-in-time rule with respect to the effectiveness of treaties and conflicting statutes demanded the subordination of treaties to the Constitution. (25) Insofar as statutes bowed to the Constitution but were also capable of overriding earlier treaties, constitutional logic could supply no other answer. (26)
Of course, if the core national interest had required signing on to a treaty, individual rights would have given way, just as otherwise applicable federalism and separations of powers constraints were diluted in the face of the treaty power and international exigencies. This presents the first qualification to the apparent historical consensus on the question: It was never really put to the test. If France or another great power had threatened war or some other serious retaliation for the infringement of consular immunities (as was not completely implausible in such cases), (27) it is hard to imagine that the individual would have won out. Commentators were apt to concede the point in mapping constitutional limitations on the treaty power, especially on the question of whether the federal government could transfer the territory of a state of the Union to another country without the state's consent (28) (another much debated question, (29) especially in the context of the Constitution's ratification, though ultimately, of course, a hypothetical one). Individual rights might have weighed more heavily in the balance than institutional concerns, at least in egregious cases; the United States would not, presumably, have summarily executed an American to remain in the good graces of the Russian czar or some other potentate. It is also true that the treaty power, unlike the war power, generally involved situations in which choices were available and costs could be considered. But, as in other areas not just relating to the treaty power but also relating to the foreign relations power generally, it would have been hard to press the vindication of the constitutional nicety against the prospect of national calamity. This sort of "suicide pact" argument no doubt would have carried the day if a situation had so demanded. (30)
B. Overriding Rights, Quietly
Indeed, one can explain the historical construction of various constitutional rights--and their override--in such terms. Where foreign relations interests came into play, one finds a strategy of constitutional avoidance in which the courts and other constitutional actors skirted potential constitutional collision by defining rights to comport with treaty regimes. One can explain nineteenth-century doctrine relating to extradition, the settlement of foreign claims, and the use of extraterritorial consular courts in this frame. Although the treaty power was never deployed as an overt trump, as a practical matter, individual rights bowed to treaty norms in these contexts.
The courts early on found extradition pursuant to treaty obligation beyond most forms of constitutional constraint. They accomplished this by categorizing the extradition proceedings as civil, not criminal. (31) Fourth and Fifth Amendment protections were found inapplicable to extradition proceedings undertaken by U.S. authorities, (32) and the courts rejected arguments relating to procedural deficiencies in the country to which extradition was being undertaken. (33) To have found constitutional rights fully applicable to extradition would have precluded, in most bilateral contexts, the conclusion of extradition agreements. These reciprocal arrangements posed significant benefits for U.S. law enforcement, and were considered to be in the crucial national interest. (34) Otherwise applicable individual rights were submerged in the face of international imperatives. Though the choice was not posed in these terms, the analysis under which it was accomplished can be fairly critiqued as formalistic, (35) as more recent cases suggest. (36)
The historical compromise of individual property rights through the medium of foreign claims settlement agreements lends itself to a similar explanation. An important and prevalent element in nineteenth-century bilateral relations was the United States's pressing, negotiating, and resolving claims by U.S. entities against foreign governments. (37) The private party whose injury was at stake, however, had no international law right to require the U.S. government to espouse its claim; and the government was free to bargain an individual's claim away in return for unrelated concessions on the part of a foreign sovereign. (38) The courts found the abandonment of the claim not to implicate a taking subject to the Fifth Amendment's requirement of just compensation, even though in some circumstances one might plausibly assert that a taking had occurred. (39) Again, the power freely to settle claims according to the "public interest" afforded the federal government flexibility (enjoyed by other sovereigns) in an important area of foreign relations. The potential conflict between claims settlement agreements and the individual right was avoided through a narrowed legal construction of the right. (40)
Where the extradition and settlement contexts implicated distinguishing features that could explain the nonapplication of rights (extradition insofar as it did not involve prosecution by U.S. authorities, (41) claims settlement insofar as the property right was itself defined by international law to be that of the state, not the individual (42)), the denial of procedural rights in consular courts operated by the United States outside of U.S. territory was not so easily processed. By treaty and statute, the consular courts exercised criminal jurisdiction over U.S. citizens and various others. (43) Although defendants before the consular courts were extended, by statute, such procedural protections as the right to confront witnesses and to have the benefit of counsel, the courts were not required to secure indictments from a grand jury, nor were defendants entitled to a jury in the trial itself. (44)
In In re Ross, the Supreme Court sustained the denial of these otherwise applicable constitutional rights on the sweeping ground that "[t]he constitution can have no operation in another country." (45) Rather, the exercise of U.S. prosecutorial authority in other countries would be "on such conditions as the two countries may agree; the laws of neither one being obligatory upon the other." (46) Although the Court did not directly find the treaty power capable of trumping protections under the Bill of Rights, the effect was the same. Even if a treaty implicated the treatment of U.S. citizens outside the United States, it was not subject to constitutional constraints. As with the extradition and claims settlement doctrines, the ruling on consular courts served important U.S. foreign policy objectives. At the turn of the century, unsavory elements of overseas American communities were considered a threat to U.S. interests in non-European countries, especially China, and streamlined consular courts presented (at least in theory) the best vehicle by which to address the problem. (47) Judges sitting without juries could take national interests into account in meting out justice where, for example, a jury would have resisted convicting an American charged with a crime against a local non-American. (48) Again, the nonapplication of the asserted individual right can be explained in terms of a foreign relations valence.
This override strategy was also evidenced in situations where rights posed a threat to foreign relations interests that did not frontally implicate the treaty power. The Insular Cases found the Constitution not to apply to unincorporated U.S. possessions. (49) The plenary power doctrine denied aliens constitutional protections in the context of immigration proceedings. (50) Both of these "exceptional" doctrines were rooted in the exigencies of contemporary international relations and the construction of sovereignty under international law. (51) As a formal matter, neither involved the trumping of constitutional rights; instead of finding constitutional rights to be canceled out by some other source of law, the Court found the rights not to apply in the first place. Although these doctrines implicated the treaty power at the margins only, (52) they used the same sort of constitutional moves to avoid a choice between rights and the nation's foreign relations interests. (53)
In short, the historical interplay of the treaty power and individual constitutional rights shows less stability than the conventional account suggests. Doctrine hewed to the proposition that treaties could not trump rights, a view almost universally echoed by commentators. But rights were submerged in those few contexts in which their standard application would have constrained America's sovereign powers on the international stage. This suggests that formal supremacy disguised the sacrifice of individual rights where it worked to the nation's functional advantage. That no treaty fell before the altar of individual rights is consistent with this tentatively revisionist perspective. Constitutional rights stood supreme, at the same time that they were quietly reconciled to sometimes-peremptory foreign-relations interests.
C. Hegemony Entrenched
During the nineteenth and early twentieth centuries, as noted above, the primary threat perceived in the treaty power related to institutional allocations of power. The treatymaking of the time had clear implications for federalism and separation of powers. It had less obvious consequences for constitutional rights, as individual rights (at least as such) were not yet an appropriate subject of international agreements or, indeed, of international law. With the advent of international human rights, however, international agreements became more salient to constitutional rights, and the Bricker Amendment episode foregrounded the issue. The result was to entrench formal constitutional hegemony. There were no additional contexts in which rights doctrine adapted downward to avoid treaty regime conflicts, but then again, no new substantial conflicts presented themselves. Where the constitutional definition of rights fell short of emerging international human rights standards, moreover, U.S. constitutional law adapted upward, at least in part in response to the new international regime. International regimes thus continued to be consequential, although once again in a way that was not apparent in constitutional doctrine.
The Bricker Amendment episode comprised a highly significant constitutional debate regarding the relationship of U.S. and international law. (54) In the wake of World War II, the episode was prompted by the establishment of the United Nations and by fears of "one-world government." The proposal of international human rights instruments tracking those of the U.S. Constitution fueled anxieties that international forces would undermine the foundations of American constitutional governance, including the constitutional scheme of individual rights. Instruments such as the United Nations Declaration on Human Rights and negotiating drafts of what would become the International Covenant on Civil and Political Rights set forth rights that were for the most part consistent with parallel constitutional protections, but which deviated in various respects. Detractors highlighted the treaty power as the weak constitutional link through which allegedly lower international rights standards could overcome domestic constitutional ones. Among other provisions, all versions of the Bricker Amendment would have supplied express supremacy for constitutional rights as against inconsistent treaties. (55)
This element of the anti-internationalist campaign was driven either by political strategy or ignorance rather than by sound analysis of constitutional doctrine. As discussed above, there was little formal historical support for the proposition that treaties could trump constitutional rights. Bricker proponents grounded their argument in Justice Holmes's treatment of the ambiguous Supremacy Clause in Missouri v. Holland, which suggested (when taken out of context) that the treaty power lacked constitutional boundaries. (56) Voluminous evidence to the contrary, (57) Brickerites raised the specter of rights abrogated by the mechanism of the treaty power. During the 1952 presidential campaign, soon-to-be Secretary of State John Foster Dulles asserted that the treaty power could overcome individual rights and should be amended accordingly. (58) The American Bar Association lent its institutional heft to this view. (59)
As in the nineteenth century, this aspect of the amendment campaign was mostly a sideshow to more debatable questions relating to federalism. It did have the effect, however, of entrenching the norm of constitutional hegemony. By putting the contrary proposition on the table, the Brickerites extracted statements of constitutional faith all around. Policymakers and commentators were almost forced to assent to the primacy of constitutional rights. Opposition to the supremacy provision was based exclusively on the ground that it was unnecessary; (60) no respectable voice was heard to argue that constitutional rights should, in any instance, fall to a conflicting treaty regime. The treatymakers fully assimilated the position and refused to act on the international rights regimes.
That left the courts without an immediate opportunity to jump on the bandwagon. The chance came with Reid v. Covert, (61) a case involving the conviction of a service spouse for the murder of an Army colonel stationed in the United Kingdom. The trial had been without a jury before a military court, consistent with a status of forces agreement between the United States and the United Kingdom. The Court unequivocally rejected the Government's treaty-power defense of the proceedings. "The obvious and decisive answer to this, of course," intoned Justice Black,
is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.... It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. (62)
The decision rejected the territoriality principle of Ross, at least with respect to the rights of U.S. citizens. (63)
Many took the Covert decision to settle the relative standing of constitutional rights and treaties. (64) No doubt the opinion was a strong statement of constitutional hegemony from the pen of a constitutional purist. There is also no doubt that it killed off the Brickerites' strawman distortion of Missouri v. Holland and an all-consuming treaty power. But one can nonetheless situate Covert in the less categorical account sketched above. From a functional foreign relations perspective, the rule of Ross no longer served any significant purpose. The consular courts at issue in Ross had been eliminated. (65) In the setting of U.S. military bases, there was little need for streamlined justice, at least not where the crimes at issue involved the prosecution of Americans for crimes committed against other Americans, with respect to which host country interest was minimized. Under status of forces agreements, to the extent American dependents such as Ms. Covert were not subject to military jurisdiction, they could be subject to prosecution by host country authorities. (66) This was not a context in which constitutional applicability had significant foreign relations consequences; whether Ms. Covert enjoyed a jury trial, or indeed whether she was prosecuted at all, (67) was not going to undermine foreign policy interests. In that sense, Covert presented a costless opportunity to roll back the territorial approach, which had become increasingly consequential in the wake of World War II and a vastly expanded official American presence abroad. (68) It also presented a costless opportunity for the Court to release any remaining steam that was left in the Bricker campaign. (69)
One also finds in the Bricker era a significant international valence to the civil rights revolution. Segregationist southerners and other sovereigntist supporters of the Bricker proposals were ultimately concerned that international treaties would be deployed against race discrimination in the United States. (70) Although these forces succeeded in heading off the direct threat of legally imposed international norms, foreign policy interests presented a significant motivation for the desegregation agenda. As Mary Dudziak has documented, American race practices were propaganda fodder for the Soviets in the bipolar competition for client states, especially in Africa. (71) The Truman administration's amicus brief in Brown v. Board of Education stressed at length how segregation had "an adverse effect upon our relations with other countries." (72) As President Eisenhower observed in his message to the nation regarding the federal enforcement in Little Rock of the Brown decision, "[o]ur enemies are gloating over this incident and using it everywhere to misrepresent our whole nation. We are portrayed as a violator of those standards of conduct which the peoples of the world united to proclaim in the Charter of the United Nations." (73) Though the international implications were often framed in pure power terms, there were thus instances in which international legal instruments, organizations, and norms came into the mix. Even though international law was invisible in the generation of doctrine, it was arguably consequential in the development of the new domestic civil rights regime.
Other differential doctrines of foreign relations law also reached their apex during the Cold War period. On the federalism front, which had been contested through at least the 1920s, (74) the balance decisively tipped in Washington's favor with the entrenchment of a dormant foreign affairs power. (75) The states were not only denied otherwise prevailing constitutional authorities where they obstructed affirmative measures at the federal level, they were restrained from acting in any way that might interfere with foreign relations generally, even in the absence of federal action. (76) With respect to separation of powers, the presidency amassed unprecedented discretion on the international plane, especially in the context of the use of force and the projection of military power. (77) And individual rights, of course, were not immune to perceived Cold War vulnerabilities. Leaving aside various domestic law trespasses arising from the Red Scare, the period spawned extreme characterizations of the plenary power over aliens. (78) The government was given wide berth in restricting affiliation and communication with foreign states, as well as in curtailing foreign travel by U.S. citizens in the name of national security. (79) As with the nineteenth-century examples discussed above, rights were flexibly constructed to comport with foreign relations imperatives. That they did not directly implicate the treaty power may have resulted more from the submergence of the international human rights regime (80) than from the imposition of special constitutional constraint on its exercise. If Cold War concerns had so demanded, the treatymakers and the courts would have seen their way to circumventing otherwise applicable constitutional protections.
Thus, even as constitutional hegemony was discursively entrenched, other developments suggested the continuing relevance of international context to the definition of domestic constitutional rights. Formalist tools could not fully insulate constitutional law from international effects. On the other hand, national foreign relations interests did not demand an expansive interpretation of the treaty power relative to the constitutional protection of individual rights, and none was forthcoming. Where an expansive interpretation was no longer required, as in the Covert context, it was scaled back. But the doctrine never faced the stiff trials witnessed in other foreign relations contexts.
II. QUESTIONING HEGEMONY
Even as qualified by this historical account, the doctrine of constitutional hegemony has been consequential to the scope of the treaty power and the incorporation of international norms into U.S. law. In the wake of Bricker, all relevant constitutional actors have assimilated the treaty subordination norm. On the other hand, defensive strategies of constitutional avoidance remain available to legitimize agreements that might otherwise present constitutional difficulties. A transformed global landscape opens possibilities for acknowledging the domestic constitutional place of treaty and other international regimes. A less-bridled treaty power would now be disciplined by the alternative constraints of international human rights law. Neither the treatymakers nor the courts will abandon the formal doctrine of constitutional hegemony, at least not in the absence of an (improbable) constitutional amendment. The analysis, however, allows for a lower-order deployment of treaty norms for interpretive constitutional purposes.
A. Current Practice in a National-Interests Perspective
Treaty practice continues to be consistent with Reid v. Covert. Where accession to an international treaty regime poses a plain downward departure from internal interpretations of individual rights, the United States has rejected or qualified its participation. In this respect, the Bricker-era chorus still dominates contemporary perspectives on the question. A consensus continues to hold that treaties cannot result in the diminishment of constitutional rights. The Senate, for example, has conditioned accession to each of the four human rights treaties it has approved with a boilerplate proviso asserting constitutional supremacy. (81) Where international treaty regimes have posed a direct potential conflict, there has been little debate as to the need to condition participation accordingly.
In the most prominent case, there was general agreement that the United States should reserve from article 20 of the International Covenant on Civil and Political Rights (ICCPR), which requires parties to prohibit hate speech, a proposition that is in clear conflict with judicial interpretations of the First Amendment. (82) Those supporting the reservation included human rights groups that opposed other conditions to U.S. ratification. (83) Although it is true that article 20 reflects a contested norm, at least in its application, (84) the motivating justification for the U.S. reservation was rooted in the general constitutional rule regarding the status of treaties, not any particular objection to the substance of article 20. United States practice under the human rights conventions evidences the doctrine's continued vitality.
On the other hand, as in the nineteenth-century practice, the doctrine may continue to mask instances in which domestic constitutional law relents to the international regime, at least where the conflict is avoidable. United States accession to the Chemical Weapons Convention may prove to be such an example. Notwithstanding Senate conditions intended to remedy the constitutional conflict, (85) the convention's inspection regime poses Fourth Amendment difficulties. (86) It would be unlikely, however, that a court would strike down U.S. participation in the treaty on that basis; rather, one could expect some accommodation of the doctrine to the treaty circumstance. One could also expect the courts to reject constitutional rights challenges to the new world trading regime. (87) Finally, were the political branches to see their way to accede to the new International Criminal Court--an improbable prospect in the short run, (88) but perhaps not so unlikely once the ICC has shown itself to be a responsible institution--the courts would see their way around arguments that U.S. participation would infringe constitutional rights.
In contrast to the formalistic approaches of the earlier era (Ross's territoriality principle providing an example), the courts could now process the foreign relations interest as part of prevailing balancing frameworks. The Supreme Court's decision in Boos v. Barry acknowledged the strategy; while striking down a measure limiting protests within range of foreign embassies in Washington on the ground that the speech restriction was not narrowly tailored, the Court suggested the possibility that compliance with international law could be recognized as establishing the compelling interest required to vindicate content restrictions. (89) The Boos court affirmed the Covert ruling to the extent that it found that an international norm would not automatically support the regulation of speech. It did, however, leave open the possibility that "the dictates of international law [might] require that First Amendment analysis be adjusted to accommodate the interests of foreign officials." (90) If such accommodation were to occur--and it is the thesis of this Article that such accommodation has occurred in other contexts--the Covert rule emerges as less categorical than the conventional account suggests. Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.
This sort of balancing better explains the nuances of nineteenth-century doctrine, in which individual rights have bowed to international regimes. It could not only explain but provide the doctrinal basis in some contemporary contexts for submerging rights. With respect to the chemical weapons agreement, for example, the significant national security interest in submitting to the international regime might justify the downward adjustment of Fourth Amendment rights. (91) In the wake of the September 11 attacks, one could also imagine multilateral antiterrorism regimes before which domestic constitutional interpretations might bend. (92) But this sort of analysis only gets one so far, especially in a less dangerous world. Relations among states have been stabilized. The consequences of noncompliance with international law or refusal to enter into treaty regimes are no longer as dramatic as they once were. At one time, such noncompliance could put the nation's very survival at risk. Today, the increasing institutionalization of interstate relations limits the downside risk of economic harms and/or diminished international stature. Those consequences of noncompliance can be serious--institutionalization has in some contexts increased the probability of enforcement action (as in the World Trade Organization dispute resolution process)--but they are no longer imperative. (93)
This stabilization argues against overriding rights, whether through balancing tests (as in a Boos-type formulation) or under cover of other doctrines (as during the nineteenth century). A merely economic international harm to the nation seems an acceptable price to pay for the vindication of an individual right. Assume that the norm against hate speech was more universally accepted, and that other states took the United States to task for its persistently expansive conception of free expression on the issue. The United States would face a cost for maintaining its position, but in the new international order, that cost would be an acceptable one. From this national interests perspective, the United States can now afford to sustain rights interpretation at the domestic level. (94)
B. Redefining Constitutional Community Upwards
In the contemporary context, then, bending rights to the treaty power requires alternative justification. One can no longer pose foreign relations imperatives as a trump, acknowledged or not. At the same time that the changing topography of the international landscape undermines traditional justifications for downgrading rights, it may supply a new basis for ceding domestic constitutional autonomy. Rights have become a part of the international-law landscape to the point that they may have been constitutionalized. This cabins the risks of international rights determinations. This constitutionalization may reflect the migration of some element of community to a global level, at least with respect to the definition of rights. The emergence of a limited form of transnational community legitimizes the reassignment of rights determinations from national institutions to international ones.
International law now includes an increasingly refined and effective international human rights regime. Where this regime once comprised a collection of mostly paper guarantees (as during the Cold War era), it now--at least arguably--imposes substantial constraints on state action. (95) The rise of international human rights diminishes the danger that the treaty power could be intentionally deployed to undermine rights. As a matter of international law, the substance of constitutional rights could once have freely been bargained away. Insofar as constitutional rights coincide with international human rights, this threat has been greatly reduced. International treaty law provides that treaty terms will not be given effect where they are inconsistent with peremptory norms of international law. (96) Moreover, the core human rights agreements enjoy wide (in some cases nearly universal) participation. Although these treaty regimes are not vertically enforceable against states, they do include independent monitoring elements. (97) The web of human rights obligations reduces the possibilities for the strategic use of international agreements to circumvent domestic rights protection. The danger would seem particularly limited in the context of multilateral agreements.
In this respect, international law shows evidence of constitutionalization, at least in the broadest terms of "imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights." (98) Where international law was formerly blind to the treatment of individuals as such by states, it increasingly constrains the terms of state action. Given the shared premises of the international and domestic regimes, this development cabins the threat of a constitutionally unconstrained treaty power. Because a rights floor has been installed at the international level, as an instrumental matter the prospect of ceding rights autonomy should be less alarming, and should be explored without reflexive objection.
Constitutionalization at the international level also provides a nonmaterialist justification for shifting rights determinations. The choice becomes one between constitutional orders, rather than between a constitutional system (domestic) and a merely legal one (formerly, the international). Prioritization in the latter context is clear; to privilege the international would have rendered all rights vulnerable. Prioritization is not so clear as between constitutional orders. Rights will be protected under either, even if in different terms. So framed, the matter can be addressed from an original position--that is, without an initial assumption (history notwithstanding) that one location is better than the other. (99) If one brackets the comparative effectiveness of enforcement, (100) there is no essential reason why the substantive determination of rights is more appropriately undertaken at the national than at the international level. Positivist justifications, such as existence of borders and of correlative national institutions, do not seem to supply the basis for national primacy, for they do not necessarily enjoy normative foundations. When it comes to the determination of rights, it is difficult even to fashion an argument based on mechanisms of representation, as rights are insulated from electoral preferences. Moreover, any argument based on representation would have to be framed in comparative terms, as such mechanisms may also be present at the international level.
The better foundational case for locating rights determinations at the national level would appear to rest in conceptions of community and identity. It reduces to a matter of "we" and "them." As Michel Rosenfeld observes, "a working constitutional order must revolve around a predominant identity." (101) To the extent that identity has been segmented along national lines, then the nation emerged as the appropriate level for the determination of rights, at least with respect to internal community relationships. In this frame, locating rights determinations at the international level would have resulted in the imposition of alien standards, not reflecting the mores of the community and its traditions--at least to the extent that community segmentation resulted in the autarkic definition of rights along national lines. In that world, there was no "international community" for purposes of defining the place of the individual in society. Rather, it was a society of states, and the law of nations was developed for the purpose of regulating relations among themselves as such. Against that backdrop, constitutional hegemony presented a normative imperative.
But that backdrop no longer prevails. It is now possible to speak of an international community composed of individuals, for some, though clearly not all, purposes. The "we" and "them" no longer so neatly coincide with national definitions of community. (102) Indeed, if community is defined as "the thing within which political events occur ... [and] the thing upon which all the political goings-on depend," (103) then many forms of international community are now apparent. As Joseph Nye observes, "who we are is harder to define when Japanese firms are major exporters from the United States, American firms produce more overseas than they export, and NGOs and political leaders who pressed for the land mines treaty included large numbers of Americans." (104)
This phenomenon is particularly evident in the human rights context, where one detects the emergence of a set of universal values; perhaps it is now appropriate to speak, in David Golove's terms, of a new global human rights "confederation" (105) or, in Paul Schiff Berman's, of a limited cosmopolitan identity. (106) The migration of rights determinations to international institutions is validated to the extent that it reflects the emergence of a transnational community in the area. This is a community not merely in the sense of an alliance--that is, a community of states--but rather one that is bound at other levels, governmental and nongovernmental. Networks of disaggregated governmental entities develop shared values and identities distinct from those of other components of their home states. Transnational judicial networks collectively confront (among other things) the definition of individual rights. (107) Nongovernmental human rights organizations and other organs of transnational civil society (including corporate actors) also apply themselves to this task. (108) These dynamics do not play out in a traditional model of state-to-state relations, and yet they are consequential to international lawmaking. At the international level they are steering the course of international norms, (109) especially with respect to the formulation of individual rights, in a way that states can no longer control.
From an American perspective, these are not alien undertakings. To the extent that one can speak of a new global human rights community, it is not unrepresentative of American interests (to the extent the national interest remains a useful analytic quantity in the consideration of rights). As a state, the United States is a major player in the development of international law, even as it resists the imposition of international norms. Many, perhaps most, individual U.S. citizens enjoy a voice in international decisionmaking through various nonstate entities, as well as through the channel of their governmental representatives. In that sense, international processes are now representative of the interests of individuals and of the interests of individual Americans. The transfer of rights determinations to international institutions, through the treaty power or otherwise, does not necessarily do violence to representative governance. In Neuman's terms, (110) international law may have a "consensual claim" in the United States even where it lacks the formal consent of the United States government. The international determination of rights may also rest on a form of popular sovereignty.
This is not to deny the possible invocation of subsidiarity or margins of appreciation, even with respect to the determination of rights. (111) Thus, as in the state-federal context, (112) even in a scheme of international rights primacy, national units are free to depart upward, where no conflict with other rights is presented. On the other hand, this analysis supplies a normative basis for national decisionmakers to rebalance rights. To take the concrete case, an international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding.
C. Insinuating International Law
It is unlikely in the extreme that the treatymakers would undertake such a frontal assault against the supremacy of constitutional rights given the clear current lack of constitutional authorization to constrain rights on international law grounds. The consensus behind constitutional supremacy remains formidable; given the implausibility of a formal constitutional amendment reversing constitutional doctrine on the question, it would take a constitutional moment of the highest order to overcome the supremacy norm. (113) As a matter of constitutional analysis, then, there is no real argument that the law has changed or is likely to change in the future.
The analysis is not, however, irrelevant to current constitutional practice, for it also justifies putting international regimes to work in the context of constitutional interpretation. This use of international regimes has been engaged. In U.S. courts, those asserting rights are no longer embarrassed to deploy international law arguments, as they once were. The United States Supreme Court is regularly subjected to such arguments, especially from amici (including foreign government amici). (114) International law is becoming part of the vocabulary of American constitutional law. Although its doctrinal place remains unsettled, international law appears poised to make unprecedented inroads in the making of American constitutional law.
The constitutional place of international norms is most hotly contested in the death penalty context. Blocking the execution of mentally retarded offenders, the majority in the 2002 decision in Atkins v. Virginia adverted to the "overwhelming disapprov[al]" of such executions "within the world community." (115) That observation, although buried in a lengthy footnote, generated intense opprobrium from each of two dissents in the case. Justice Rehnquist argued that "if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant." (116) For his part, Justice Scalia sarcastically disclaimed the relevance of the international community, "whose notions of justice are (thankfully) not always those of our people." (117) But if the suggestions above are tenable, it is no longer useful to speak in terms of "our people," and an international consensus may be relevant to the determination of constitutional rights norms.
This battle is now being fully engaged, on academic, (118) judicial, (119) and policy (120) fronts. Deploying international law as an interpretive tool reflects a defensive strategy, ostensibly a process of domestication rather than one of submission. This may mask what is, in fact, a partial displacement of constitutional hegemony. International law may be a process in which the United States and U.S. entities participate, but it is not a creature of the Constitution. On the other hand, resistance and insulation may no longer be viable options. One can expect more frequent deployment of international norms as part of the domestic rights discourse. In the long run, international norms may be played, not merely as persuasive agents, but as trumps.
Constitutional rights have presented a discursive bulwark against the encroachment of international law. The continuing refusal to contemplate the international determination of rights betrays the embedded nationalist orientation of constitutional theory, and the field of foreign relations law proves to be no exception. These nationalist assumptions may be conceptually vulnerable in the face of the changing architecture of international law and community. Constitutional rights have bowed to the treaty power and the exigencies of foreign relations as a matter of historical practice, even as the inviolability of domestic rights interpretation has been set as a matter of constitutional faith. Accompanying doctrines of constitutional hegemony, deviations notwithstanding, were justified in a world in which law offered no protection of individual rights. As the regime of international human rights grows thick, however, that justification should no longer stand unchallenged. As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable. In the short term, this argues for the
(1.) 354 U.S. 1, 16 (1957).
(2.) See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 302(2) & cmt. b (1987) [hereinafter RESTATEMENT (THIRD)] ("Treaties and other international agreements are subject to the prohibitions of the Bill of Rights and other restraints on federal power.... "); LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 187 (2d ed. 1996) ("Treaties, surely, are also subject to the Bill of Rights.... "); David J. Bederman, Globalization, International Law and United States Foreign Policy, 50 EMORY L.J. 717, 732 (2001) ("We would, for example, have no qualms in ruling that a provision of a treaty violated a provision of the first eight amendments of the Bill of Rights."); Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 393 (1998) ("[T]he treaty power is understood as being subject to the individual rights protections of the Constitution.... "); Gerald L. Neuman, The Nationalization of Civil Liberties, Revisited, 99 COLUM. L. REV. 1630, 1647 (1999).
(3.) See Boos v. Barry, 485 U.S. 312, 324 (1988) (characterizing rule in Covert as "well-established"); Covert, 354 U.S. at 16; Sahagian v. United States, 864 F.2d 509, 513 (7th Cir. 1988) ("It is well settled that the Bill of Rights limits both the federal government's treaty-making powers as well as actions taken by federal officials pursuant to the federal government's treaties."); Oneida Indian Nation of New York v. New York, 860 F.2d 1145, 1163 (2d Cir. 1988) ("[T]he treaty power cannot override constitutional limitations respecting individual rights").
(4.) Most notably including the political branches of the federal government. See, e.g., International Covenant on Civil and Political Rights: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong. 102-478, at 18 (1991) (statement of Richard Schifter, Assistant Secretary of State) (defending reservation to treaty hate speech prohibition, and highlighting that "[i]t is axiomatic that the United States cannot agree in a treaty to an unconstitutional obligation"); see also infra notes 52-58 and accompanying text (describing treaty practice consistent with privileged position of constitutional rights against inconsistent treaty regimes).
(5.) See Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 OHIO ST. L.J. 649, 653 n. 16 (2002) (describing challenges to long-held precepts of foreign relations law scholarship); Peter J. Spiro, The New Sovereigntists, FOREIGN AFF., Nov.-Dec. 2000, at 9 (same).
(6.) In this respect, the object of this Article differs from that pursued by Professor Neuman in his contribution to this Symposium. See Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 STAN. L. REV. 1863 (2003). Neuman explores the relationship of domestic and international rights regimes, but does not attempt a prioritization.
(7.) See, e.g., QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 77 (1922) ("Prohibitions for the protection of individual interests have seldom affected the power of national organs in the conduct of foreign relations.").
(8.) See In re Dillon, 7 F. Cas. 710 (N.D. Cal. 1854) (No. 3914).
(9.) See 5 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 167 (1906) (Secretary of State Marcy to U.S. Minister to France, Sept. 11, 1854).
(10.) See EDWARD S. CORWIN, NATIONAL SUPREMACY: TREATY POWER VS. STATE POWER 15 (1913) (citing subsequent practice; "[r]ecent consular conventions give evidence that Secretary Marcy's contention is to-day accepted, at least as a guiding principle of negotiation").
(11.) The first great controversy relating to the scope of the treaty power focused on the role of the House of Representatives, as prompted by the Jay Treaty of 1795. On the history of federalism at the intersection of the treaty power (including federalism issues also posed by the Jay Treaty), see generally David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075, 1206-10, 1253-54 (2000).
(12.) See U.S. CONST. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.... ").
(13.) See 1 CHARLES HENRY BUTLER, THE TREATY-MAKING POWER OF THE UNITED STATES 5 (1902) ("IT]he treaty-making power of the United States ... is derived not only from the powers expressly conferred by the Constitution, but ... is also possessed by that Government as an attribute of sovereignty.... "); see also ROBERT T. DEVLIN, THE TREATY POWER UNDER THE CONSTITUTION OF THE UNITED STATES 132-33 (1908) (quoting William Pinkney, to the effect that the treaty power is unlimited).
(14.) See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 315-19 (1936) (sourcing foreign affairs powers to sovereignty rather than the enumerated powers of the Constitution). Before joining the Court, where he would author the Curtiss-Wright opinion, George Sutherland had referred approvingly to Butler's analysis while holding the Treaty Power subject to "applicable [constitutional] limitations." See GEORGE SUTHERLAND, CONSTITUTIONAL POWER AND WORLD AFFAIRS 119 (1919) (commenting that Butler's conclusion was "not without practical value"). Of course, Curtiss-Wright itself acknowledged that the foreign affairs power "must be exercised in subordination to the applicable provisions of the Constitution." 299 U.S. at 320.
(15.) 133 u.s. 258, 267 (1890); see also The Cherokee Tobacco Case, 78 U.S. 616, 620 (1870) ("It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.... "); JOHN C. CALHOUN, A Discourse on the Constitution and Government of the United States, in 1 THE WORKS OF JOHN C. CALHOUN 203-04 (Richard K. Cralle ed., 1851) (arguing that the treatymaking power "is limited by all the provisions of the constitution which inhibit certain acts from being done by the government"); THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 103 (1880) ("The Constitution imposes no restriction upon this power [the treaty-making power], but it is subject to the implied restriction that nothing can be done under it which changes the Constitution of the country.... "); DEVLIN, supra note 13, at 141 ("[I]f there ever appears a clear Case in which a treaty conflicts with the Constitution, then either the Constitution or the treaty must govern, and there can be little doubt that in such a case the treaty would yield to the Constitution."); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES [section] 777 (1833) (characterizing the treaty power as "general and unrestricted," but concluding that it "must be construed ... in subordination to [the Constitution]; and cannot supersede, or interfere with any other of its fundamental provisions"); SUTHERLAND, supra note 14, at 143 ("Whatever the Constitution forbids absolutely, of course, may not be done by a treaty any more than by any other method."). These characterizations echoed the views of the framing generation. See, e.g., 18 THE PAPERS OF ALEXANDER HAMILTON 428 (Harold C. Syrett ed., 1973) ("A treaty cannot be made which alters the constitutions of the country or which infringes any express exception to the power in the constitution of the United States.").
(16.) On federalism and the treaty power, compare Golove, supra note 11 (asserting expansive treaty power), with Bradley, supra note 2 (arguing that treaty power is subject to federalism constraints). In the separation-of-powers context, perhaps the most heated recent treaty-related controversy has focused on the constitutionality of the non-Article II congressional-executive agreement. Compare Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801 (1995), and Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 TEX. L. REV. 961 (2001) (accepting constitutionality on basis of historical precedent), with Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (asserting lack of constitutional basis for congressional-executive agreement).
(17.) As Quincy Wright noted, whether a right is framed as a prohibition on government or as a guarantee to the individual should be immaterial. See WRIGHT, supra note 7, at 76.
(18.) See, e.g., CORWIN, supra note 10, at 14 ("[F]rom the point of view of individual rights the most important limitations on the treaty-power are those comprised in the Bill of Rights.... "); HENRY ST. GEORGE TUCKER, LIMITATIONS ON THE TREATY-MAKING POWER UNDER THE CONSTITUTION OF THE UNITED STATES 107-08 (1915) ("The sacred rights of citizenship secured to the American citizen in our Constitution cannot be taken from him under a treaty, nor even by legislative action, for they are secured in the Constitution itself.... [The protections of the Bill of Rights] can never be modified or taken from the American citizen, under the provisions of a treaty with any country.").
(19.) See, e.g., TUCKER, supra note 18, at 95-142 (critiquing views of Charles Henry Butler). As Henry Adams wrote with respect to constitutional supremacy, "The argument is irresistible; it has never been answered; and indeed the mere statement is enough to leave only a sense of surprise that the Federalists should have hazarded themselves on such preposterous ground." 5 MOORE, supra note 9, at 165.
(20.) To the extent that one can rationalize the resolution of controversies (by judicial decision or otherwise) relating to the treatment of aliens, the fact of a treaty obligation was determinative in sustaining limitations on state authority. See Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1238 & n. 72 (1999); see also, e.g., Golove, supra note 11, at 1249-54 (describing abandonment of state segregation of Japanese schoolchildren in the face of inconsistent treaty obligation).
(21.) Jefferson had asserted that the treaty power did not extend to "those subjects of legislation in which [the Constitution] gave a participation to the House of Representatives." See Thomas Jefferson, Manual of Parliamentary Practice, reprinted in LEWIS DESCHLER, CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES 292 (1973). This view did not prevail in the face of practice, with many examples of commercial agreements undertaken as treaties. See 5 MOORE, supra note 9, at 162-64 (recounting nineteenth-century practice). Some are now in effect attempting to revive the limitation, arguing that agreements implicating plenary congressional powers may only take the form of congressional-executive agreements approved by the House as well as Senate. See John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757 (2001) (asserting that treaties should not address matters implicating Article I powers). But see Spiro, supra note 16, at 1003-09 (critiquing Yoo position).
(22.) Cf. DEVLIN, supra note 13, at 141 (noting the difficulties in confronting a treaty in conflict with the Constitution: "But, happily, the question has never arisen, and it is doubtful if it ever will.").
(23.) See, e.g., TUCKER, supra note 18, at 138 ("Can the Constitution be supreme when it embraces in its folds a provision that has the power to destroy it? Can supremacy be predicated on any instrument that contains within its provisions the badges of its own subordination?"). Thomas Jefferson made similar arguments in his restrictive conception of the treaty power; if it knew no constitutional bounds, he observed, "then we have no Constitution." Letter from Thomas Jefferson to Wilson Cary Nicholas (Sept. 7, 1803), in 8 THE WRITINGS OF THOMAS JEFFERSON 247 n.1 (Paul Leicester Ford ed., 1897). As Corwin noted, "the notion of unlimited power, wherever lodged, has always been to the American mind an uncongenial one," to the point of "amount[ing] to a national superstition." CORWIN, supra note 10, at 5.
(24.) TUCKER, supra note 18, at 141-42.
(25.) See The Chinese Exclusion Case, 130 U.S. 581,604 (1889); Head Money Cases, 112 U.S. 580 (1884).
(26.) See, e.g., DEVLIN, supra note 13, at 196 (arguing the equivalence of treaties and laws, both in subordination to the Constitution).
(27.) See 5 MOORE, supra note 9, at 79 (describing "long and animated controversy" arising from the San Francisco episode).
(28.) See, e.g., WRIGHT, supra note 7, at 89 ("The better opinion seems to hold that state consent [to a cession of territory by treaty] must be obtained, though in case of necessity, as to end an unfortunate war, a treaty cession without such consent would doubtless stand.").
(29.) See, e.g., SUTHERLAND, supra note 14, at 147-50 (summarizing historical debate and arguing that treaty power did extend to permit territorial cession).
(30.) See, e.g., Quincy Wright, The Constitutionality of Treaties, 13 AM. J. INT'L L. 242, 250 (1919) ("There are probably no limitations which could not be transcended in case of necessity.... A treaty, although manifestly violating the Constitution if necessary to secure peace, would, like revolution or intervention, be justified by its 'success' in preventing a worse situation.").
(31.) See, e.g., In re De Giacomo, 7 F. Cas. 366, 370 (C.C.S.D.N.Y. 1874) (No. 3747) (finding that Ex Post Facto clause and other constitutional protections inapplicable because "extradition cannot properly be regarded as 'punishment'" for such purposes).
(32.) See id.; see also Neely v. Henkel, 180 U.S. 109, 122-23 (1901) (concluding without elaboration that constitutional due process and other protections "have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country"); 1 JOHN BASSETT MOORE, A TREATISE ON EXTRADITION AND INTERSTATE RENDITION 83 (1891). For a catalogue of procedural rights denied individuals in extradition proceedings, see Lis Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections to Fugitives Fighting Extradition from the United States, 19 MICH. J. INT'L L. 729, 742-44 (1998); see also John T. Parry, The Lost History of International Extradition Litigation, 43 VA. J. INT'L L. 93 (2002) (examining critically the history of extradition in a separation-of-powers frame).
(33.) See Neely, 180U.S. at 122.
(34.) As Butler noted, "[e]xtradition is so essentially one of those questions in which the safety of the Union is involved." 2 BUTLER, supra note 13, at 263; see also 1 MOORE, supra note 32, at 5 ("In modern times the importance of the subject has vastly increased."). Attorney General Lee had suggested in 1797 that refusal to render fugitives might "under certain circumstances, afford to the foreign nation just cause for war." 1 Op. Att'y Gen. 68, 70 (1797).
(35.) Cf. 2 BUTLER, supra note 13, at 245 (noting that "treaty-making power has been extended to its widest limits in extradition treaties"); Arthur E. Sutherland, Jr., Restricting the Treaty Power, 65 HARV. L. REV. 1305, 1333 (1952) (noting that "a treaty providing for extradition of one of our citizens seems clearly to affect constitutionally protected rights," and suggesting that Bricker Amendment restrictions might render extradition "constitutionally impossible").
(36.) See Parretti v. United States, 122 F.3d 758 (9th Cir. 1997) (finding arrest and detention for extradition to violate Fourth and Fifth Amendments), vacated en banc on other grounds, 143 F.3d 508 (9th Cir. 1998); cf John Dugard & Christine Van Den Wyngaert, Reconciling Extradition with Human Rights, 92 AM. J. INT'L L. 187 (1998) (arguing that extradition is subject to international human-rights constraints).
(37.) See, e.g., WALLACE MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS 53-56 (1941) (noting conclusion of eighty executive agreements with foreign states during period 1817-1917).
(38.) See, e.g., Phillip R. Trimble, Foreign Policy Frustrated--Dames & Moore, Claims Court Jurisdiction and a New Raid on the Treasury, 84 COLUM. L. REV. 317, 317 (1984) ("Since the end of the eighteenth century the United States government has settled the legal claims of its nationals against foreign governments, without necessary or exclusive regard for the claimants, in the larger interests of American foreign policy."); see also Dames & Moore v. Regan, 453 U.S. 654, 679 (1981) (finding that it is "undisputed that the United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole"); RESTATEMENT (THIRD), supra note 2, [section] 902 cmt. 1 ("The President may refuse to present a claim, settle it by negotiation, abandon it, or join it with others for en bloc resolution.... "); EDWIN M. BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD 366 (1915) ("The government's power to settle the claim of its citizen against a foreign country is practically unrestricted.").
(39.) See Gray v. United States, 21 Ct. Cl. 340 (1886) (finding, in an advisory opinion requested by Congress, ethical but not legal duty to compensate successors to private claims compromised by government); see also Meade v. United States, 76 U.S. 691, 724 (1869) (noting but not passing on just compensation challenge to government's failure to satisfy foreign claim); WILLARD B. COWLES, TREATIES AND CONSTITUTIONAL LAW, PROPERTY INTERFERENCES AND DUE PROCESS OF Law 3 (1941) ("[I]n carrying out public purposes by treaty in the past and at present, property in the United States has been and is being interfered with by treaty...."). Beyond Fifth Amendment purposes, international claims were otherwise considered property, for example, for purposes of assignability. See, e.g., Comegys v. Vasse, 26 U.S. 193 (1828); BORCHARD, supra note 38, at 636-37.
(40.) The French consul episode provides another limited example of this strategy. Confronted with the possible collision between the treaty obligation (immunizing consuls from process) and the constitutional prerogative (to secure the testimony of witnesses), the district court found the constitutional right not to inhere where the government was also disabled from compelling the appearance of the witness. See In re Dillon, 7 F. Cas. 710, 712 (N.D. Cal. 1854) (No. 3914). Secretary of State Marcy's assumptions to the contrary, see supra text accompanying note 9, the only court to consider the issue thus avoided the conflict by overriding the right.
(41.) See, e.g., Benson v. McMahon, 127 U.S. 457, 464 (1888) (addressing habeas claim in extradition proceeding, and observing that "[w]e are not sitting in this court on the trial of the prisoner, with power to pronounce him guilty and punish him or declare him innocent and acquit him.")
(42.) See CORWIN, supra note 10, at 16 (asserting consistency of claims settlement practice with Takings Clause).
(43.) See generally FRANK E. HINCKLEY, AMERICAN CONSULAR JURISDICTION IN THE ORIENT 41-77 (1906); EILEEN P. SCULLY, BARGAINING WITH THE STATE FROM AFAR: AMERICAN CITIZENSHIP IN TREATY PORT CHINA, 1844-1942, at 72-80 (2001).
(44.) See In re Ross, 140 U.S. 453, 470 (1891); see also REV. STAT. [subsections] 4083-4085 (1878) (affording consuls jurisdiction to hear certain civil and criminal matters).
(45.) 140 U.S. at 464.
(47.) As one Shanghai American observed, "[E]very escape of an American criminal when the facts are clear but legal technicalities get him off ... is felt to be an outrage by the whole Chinese people and its consequences fall ... upon the law-abiding and reputable Americans." SCULLY, supra note 43, at 98. Thus, although the provision of consular courts may have served the interests of American defendants by removing them from possibly hostile and rights-unfriendly local courts, as the court in Ross was careful to stress, see Ross, 140 U.S. at 463 (noting that the historical purpose of extraterritorial courts was to protect European nationals "from the arbitrary and despotic action of the local officials"), there is a parallel national-interests explanation for the holding.
(48.) See SCULLY, supra note 43, at 15.
(49.) See Balzac v. Porto Rico, 258 U.S. 298 (1922); Downes v. Bidwell, 182 U.S. 244 (1901).
(50.) See Fong Yue Ting v. United States, 149 U.S. 698 (1893); The Chinese Exclusion Case, 130 U.S. 581,604-08 (1889).
(51.) See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1 (2002).
(52.) Of the Insular Cases, see Downes, 182 U.S. at 279, which found that the Constitution did not to apply to unincorporated territories and observed that "the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants." See also id. at 368-70 (Fuller, C.J., dissenting) (arguing that the holding violated the rule that treaties are subject to constitutional constraints, citing Geofroy v. Riggs, 133 U.S. 267 (1890), and other related cases). In the context of plenary power over immigration, see The Chinese Exclusion Case, 130 U.S. at 604, which cited the treaty power, among others, as the basis for federal power over immigration.
(53.) Thus, the Insular Cases built directly on Ross's territoriality construct. See Downes, 182 U.S. at 269 (citing Ross in finding that the Revenue Clause of the Constitution does not to apply to Puerto Rico); see also Fong Yue Ting, 149 U.S. at 738 (Brewer, J., dissenting) (distinguishing the exclusion and deportation of aliens on basis of territorial locations; asserting that nonapplication of due process in former context because of the grounds that "[t]he Constitution has no extraterritorial effect"). The plenary power doctrine denied the application of the Due Process Clause and other procedural protections by finding deportation and exclusion not to involve punishment or a deprivation of liberty in much the same way that extradition was deemed a civil proceeding in which rights afforded criminal defendants did not apply. Compare In re De Giacomo, 7 F. Cas. 366, 370 (C.C.S.D.N.Y. 1874) (No. 3747) (finding extradition not to constitute "punishment" for constitutional purposes), with Fong Yue Ting, 149 U.S. at 709 (reaching the same conclusion with respect to deportation). The concept of plenary power not subject to judicial review was first suggested in then-Congressman John Marshall's oration on the extradition of Jonathan Robbins, in which Marshall deemed the President as "the sole organ of the nation in its foreign relations." See Parry, supra note 32, at 111-13; see also Fong Yue Ting, 149 U.S. at 714 (citing Marshall speech in articulating plenary power over immigration).
(54.) On the Bricker Amendment, see generally DUANE TANANBAUM, THE BRICKER AMENDMENT CONTROVERSY (1988).
(55.) See id. at 221-27 (reproducing different versions of the proposed amendment). For instance, S.J. Res. 130, introduced by Bricker in early 1952, would have provided that "[n]o treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof." Id. at 222.
(56.) See Missouri v. Holland, 252 U.S. 416, 433 (1920) (stating that "[a]cts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States."); see also Thomas Reed Powell, Constitutional Law in 1919-1920, 19 MICH. L. REV. 1, 13 (1920) (suggesting that in the wake of Holland "the court might hold that specific constitutional limitations in favor of individual liberty and property are not applicable to deprivations wrought by treaties").
(57.) Evidence supplied by Holmes's opinion itself. See Holland, 252 U.S. at 433 (qualifying the opinion as not "imply[ing] that there are no qualifications to the treaty-making power," and highlighting that the migratory birds treaty at issue in the case did "not contravene any prohibitory words to be found in the Constitution.").
(58.) See John Foster Dulles, Address at the Regional Meeting of the American Bar Association (Apr. 11, 1952), in Treaties and Executive Agreements: Hearings on S.J. Res. 1 & S.J. Res. 43 Before a Subcomm. of the Senate Comm. on the Judiciary, 83d Cong. 862 (1953) [hereinafter Hearings on S.J. Res. 1 & S.J. Res. 43] (stating that treaties "can cut across the rights given the people by their constitutional Bill of Rights").
(59.) See TANANBAUM, supra note 54, at 7-15, 38-41. ABA President Frank Holman warned that the proposed covenant "might transform the United States into a socialist state and substitute 'Treaty Law' for 'Constitutional Law.'" Id. at 32.
(60.) See, e.g., Hearings on S.J. Res. 1 & S.J. Res. 43, supra note 57, at 676 (statement of University of Chicago political scientist Quincy Wright) (concluding that the amendment was "unnecessary to meet any threat to constitutional liberties"); Treaties and Executive Agreements: Hearings on S.J. 130 Before a Subcomm. of the Senate Comm. of the Judiciary, 82d Cong. 116 (1952) (statement of Harvard Law Professor Zecariah Chafee, Jr.) (calling the provision "unobjectionable in itself, but unnecessary"); id. at 426-27 (statement of Yale Law Professor Myres S. McDougal) (arguing that "[i]t is agreed by all authorities that international agreements are subject to judicial review ... for their compliance with the Bill of Rights and other direct prohibitions of the Constitution"; proposed amendments therefore "unnecessary"). Leading the Eisenhower Administration's opposition to the amendment (while expressing sympathy for its intentions), Dulles made this argument himself. See Hearings on S.J. Res. 1 & S.J. Res. 43, supra note 57, at 831-32 (statement of Department of State).
(61.) 354 U.S. 1 (1957).
(62.) Id. at 16-17.
(63.) See id. at 12 (holding that the Ross approach "is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad"). The ruling could not, however, see its way to overruling the Insular Cases, see id. at 14, even though the logic of Covert would seem to have required it. It is also perhaps worth noting that Black's decision in Covert represented a plurality only, though that has not diminished its influence. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 647 n.19 (3d ed. 2000) ("On this point, the plurality opinion in Covert is widely and properly regarded as authoritative.").
(64.) See, e.g., HENKIN, supra note 2, at 187 (stating that "[i]n 1957, Justice Black laid the issue to rest"); ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 311 (1973) (recognizing that the Covert decision "made clear what no one should ever have doubted--that the Treaty Power was subordinate to the Constitution"); 1 TRIBE, supra note 63, at 647 ("If there were any remaining doubt on the issue whether there is any outer limit to the treaty-making power, that question was closed resoundingly in Reid v. Covert.").
(65.) See Covert, 354 U.S. at 12.
(66.) The agreements included undertakings by host countries to extend certain procedural protections, not including the right to trial by jury, in such prosecutions. See Note, Criminal Jurisdiction over American Armed Forces Abroad, 70 HARV. L. REV. 1043, 1050-53 (1957).
(67.) See Mark J. Yost & Douglas S. Anderson, The Military Extraterritorial Jurisdiction Act of 2000: Closing the Gap, 95 AM. J. INT'L L. 446 (2001) (describing how many crimes by U.S. civilians and dependents on American military bases went unpunished until 2000 amendments extended the reach of federal criminal law to such installations).
(68.) See Gerald L. Neuman, Whose Constitution?, 100 YALE L.J. 909, 965-66 (1991).
(69.) See TANANBAUM, supra note 54, at 213 (suggesting that Black "hop[ed] perhaps that his comments about the Treaty Power might finally quiet the agitation to enact the Bricker amendment").
(70.) See, e.g., NATALIE HEVENER KAUFMAN, HUMAN RIGHTS TREATIES AND THE SENATE 99 (1990) (stating that "a great concern was that these treaties could be used to establish a federal basis for desegregation").
(71.) See MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS (2000).
(72.) Id. at 100.
(73.) Id. at 133.
(74.) See Spiro, supra note 20, at 1228-41.
(75.) See Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643-59 (1997) (asserting the absence of any historical norm against state activity implicating foreign relations).
(76.) See Zschemig v. Miller, 389 U.S. 429, 434 (1968) (finding state measure unconstitutional where it had "more than 'some incidental or indirect effect in foreign countries'").
(77.) See generally JOHN HART ELY, WAR AND RESPONSIBILITY, at ix (1993) (decrying "the disappearance of the separation of powers" as a "legacy of the Cold War"); SCHLESINGER, supra note 64, at 324 (proclaiming that "by the 1970s the Constitution was out of balance").
(78.) See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.").
(79.) See, e.g., Perez v. Brownell, 356 U.S. 44 (1958) (upholding termination of citizenship for voting in foreign political election); Zemel v. Rusk, 381 U.S. 1 (1965) (upholding ban on travel to Cuba by U.S. citizens). See generally Spiro, Globalization and the (Foreign Affairs) Constitution, supra note 5, at 697-702 (describing how these rights were contingent on Cold War security imperatives).
(80.) Cf. Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781 (1994).
(81.) u.s. accession to the Genocide Convention included the following reservation: "That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." See 132 CONG. REC. S1355 (daily ed. Feb. 19, 1986). The Senate's assent to ratification of the Torture and Race conventions, and of the Covenant on Civil and Political Rights, included nearly identical language as a condition, though not to be included in the instruments of ratification. See 140 CONG. REC. S7634 (daily ed. June 24, 1994) (Race Convention); 138 CONG. REC. S4781 (daily ed. Apr. 2, 1992) (Covenant on Civil and Political Rights); 136 CONG. REC. S17486 (daily ed. Oct. 27, 1990) (Torture Convention). The conditions originated in the so-called "Lugar-Helms Provisos," developed in the course of Senate consideration of the Genocide Convention in 1985. See KAUFMAN, supra note 70, at 209-10 (setting forth text of provisos).
(82.) See R.A.V.v. City of St. Paul, 505 U.S. 377 (1992).
(83.) See generally International Covenant on Civil and Political Rights: Hearing Before the Comm. on Foreign Relations, 102d Cong. (1991) (including statements from Amnesty international, Lawyers Committee for Human Rights, Human Rights Watch, and other groups voicing support for reservation from the hate-speech provision).
(84.) See Friedrich Kubler, How Much Freedom for Racist Speech?: Transnational Aspects of a Conflict of Human Rights, 27 HOFSTRA L. REV. 335, 375 (1998) (concluding that article 20 and international norms allow states "a very wide margin of discretion").
(85.) See S.J. Res. 75, 105th Cong. [section] 1(28) (1997) (requiring President to undertake certain action "[i]n order to protect United States citizens against unreasonable searches and seizures"). The Senate conditions may either be ineffective because the Convention does not permit conditional accession (that is, it does not allow reservations), or because the conditions give rise to other constitutional issues. See generally Robert F. Greenlee, The Fourth Amendment and Facilities Inspections Under the Chemical Weapons Convention, 65 U. CHI. L. REV. 943 (1998).
(86.) See Greenlee, supra note 85; see also Robert H. Bork, The Limits of "International Law," NAT'L INT., Winter 1989-1990, at 3 (suggesting Fourth Amendment problems with the agreement).
(87.) See, e.g., Yong K. Kim, The Beginnings of the Rule of Law in the International Trade System Despite U.S. Constitutional Constraints, 17 MICH. J. INT'L L. 967 (1996) (highlighting various constitutional concerns in international trade law, including due process concerns).
(88.) As John Bolton wrote before assuming a high-level position in the State Department, "[t]he ICC's failing stems from its purported authority to operate outside of (and on a plane superior to) the U.S. Constitution, and thereby to inhibit the full constitutional autonomy of all three branches of the U.S. government." John R. Bolton, The Risks and Weaknesses of the International Criminal Court from America's Perspective, 41 VA. J. INT'L L. 186, 189 (2000).
(89.) Boos v. Barry, 485 U.S. 312, 324 (1988) (suggesting but not deciding that an interest recognized by international law could give rise to a compelling interest in support of a speech restriction).
(90.) Id. The interest might better have been framed as the U.S. interest in protecting the foreign official. See id. at 323-24 (describing that interest).
(91.) See, e.g., HENKIN, supra note 2, at 288-89.
(92.) Assuming that the relevant constitutional right had not already been bent. See, e.g., David Cole, Enemy Aliens, 54 STAN. L. REV. 953 (2002) (describing how rights have been constrained in post-9/11 context). Antiterrorism regimes would in that sense be broadly consistent with, rather than a deviation from, the scope and trajectory of domestic norms.
(93.) This may explain modern-era reconsideration of the nineteenth-century practice on extradition. See generally Wiehl, supra note 32 (discussing recent judicial reexamination of rights limitations in extradition context).
(94.) In this respect, constitutional hegemony is classifiable as another example of American unilateralism enabled by dominant global power, as of course it is where the United States refuses to adopt international rights norms that are more protective than domestic ones.
(95.) The proposition may be debatable. See, e.g., Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935 (2002) (offering empirical argument that participation in human rights regimes does not result in greater compliance with human rights norms).
(96.) See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, arts. 53, 64, 1155 U.N.T.S. 331, 8 I.L.M. 679, 698-99, 703 (1969); RESTATEMENT (THIRD), supra note 2, [section] 331(2)(b) & cmts. e, f.
(97.) Such monitoring takes the institutional form of the so-called treaty committees, which while lacking independent enforcement powers have increasingly consequential monitoring and interpretive responsibilities. See, e.g., DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE--ITS ROLE IN THE DEVELOPMENT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1991).
(98.) Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and Diversity, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL PERSPECTIVES 3 (Michel Rosenfeld ed., 1994).
(99.) Cf. Jonathan Ree, Cosmopolitanism and the Experience of Nationality, 28 PHIL. F. 167, 173 (1996) (highlighting "conceptual illusion associated with the principle of nationality ... that nationality is a spontaneous sentiment that precedes internationality").
(100.) This is, I understand, a significant premise to this discussion, but one which is no longer fantastical and which helps isolate other elements of the challenge. See Neuman, supra note 2, at 1655-56 (asserting the relevance of international law, but arguing against reliance on international law and institutions for the protection of individual rights).
(101.) Rosenfeld, supra note 98, at 6.
(102.) See, e.g., Thomas M. Franck, Community Based on Autonomy, 36 COLUM. J. TRANSNAT'L L. 41 (1997); see also Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311, 321 (2002) (posing "alternative conceptions of community" upon which to base rules of jurisdiction). Professor Neuman's analysis appears to be contingent on the persistence of distinct national community in both his consensual and suprapositive aspects of constitutional law. Under the first, consent is sought "within some version of the particular national community"; under the second, as reflecting "the fundamental ethical values of a particular culture." Neuman, supra note 6, at 1866, 1868. To the extent that national community erodes, both of these foundations for a particularized constitutional regime would appear necessarily to erode as well.
(103.) Carl J. Friedrich, The Concept of Community in the History of Political and Legal Philosophy, in NOMOS II: COMMUNITY 23 (Carl J. Friedrich ed., 1959). That definition used to be more or less tree of national communities, but no longer remains sustainable in the face of globalization.
(104.) JOSEPH S. NYE, JR., THE PARADOX OF AMERICAN POWER 164 (2002).
(105.) David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697 (2003).
(106.) See Berman, supra note 102, at 486-90 (constructing supranational identities as giving rise to plural, cosmopolitan communities).
(107.) See Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 1103, 1113 (2000).
(108.) See, e.g., ANNE MARIE CLARK, DIPLOMACY OF CONSCIENCE (2001) (describing central role of human rights organizations in the development of modern international rights regimes); Kathym Sikkink, Restructuring Worm Politics: The Limits and Assymetries of Soft Power, in RESTRUCTURING WORLD POLITICS: TRANSNATIONAL SOCIAL MOVEMENTS, NETWORKS, AND NORMS 301, 302 (Sanjeev Khagram, James V. Riker & Kathryn Sikkink eds., 2002) (describing how NGOs and transnational networks change global "norms structures"); Paul Wapner, Politics Beyond the State: Environmental Activism and World Civic Politics, 47 WORLD POE. 311 (1995) (describing how extrainstitutional nonstate action generates consequential "normativity").
(109.) In this respect, the premise that international law arises only through the action of states, see, e.g., Neuman, supra note 6, at 1865-66, is now being contested. See, e.g., DAVID HELD, DEMOCRACY AND THE GLOBAL ORDER 84 (1995) ("The influential legal doctrine that the only true source of international law is the consent of states--either their expressed consent, or their implied consent--has been fundamentally challenged.").
(110.) See Neuman, supra note 6, at 1874.
(111.) See, e.g., Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479 (2003).
(112.) In this respect among many others, the parallels to the theory and development of federalism are clear. The historical migration of power from the states to the federal government also reflected a redefinition of community. The shift was largely unnoticed by contemporaries, in the same way that today most individuals do not conceive of international institutions as politically primary. See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKES OF THE CONSTITUTION 28-29 (1996) ("For most Americans [in the 1780s] ... national politics mattered little.... When Americans thought about politics at all, they directed their concerns toward local and state issues.").
(113.) See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 266-94 (1991) (setting forth constitutional moments model of informal constitutional amendment). Submission to international direction is not inherently inconsistent with constitutionalism, however. The Dutch constitutional regime, most notably, precludes judicial review of treaties for consistency with the domestic constitution. See Henry G. Schermers, Netherlands, in THE EFFECT OF TREATIES IN DOMESTIC LAW 109, 113 (Francis G. Jacobs & Shelley Roberts eds., 1987).
(114.) See, e.g., Brief of Amici Curiae Mary Robinson, Lawrence v. Texas (U.S. No. 02102) (arguing, on behalf of human rights organizations, that laws criminalizing consensual same-sex sodomy are inconsistent with international law); Brief of Amici Curiae Morton Abramowitz, State v. McCarver, 548 S.E.2d 522 (N.C. No. 384 A92), cert. dismissed, 533 U.S. 975 (2001) (No. 00-8727) (asserting inconsistency with international law of execution of mentally retarded). See generally Stephen A. Plass, The Foreign Amici Dilemma, 1995 BYU L. REV. 1189.
(115.) 536 U.S. 304, 316 n.21 (2002).
(116.) Id. at 325 (Rehnquist, C.J., dissenting).
(117.) Id. at 348 (Scalia, J., dissenting).
(118.) See, e.g., Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 VA. J. INT'L L. (forthcoming 2003); Martha F. Davis, International Human Rights and United States Law: Predictions of a Courtwatcher, 64 ALB. L. REV. 417 (2000); Harold Hongju Koh, Bringing International Law Home, 35 Hous. L. REV. 623 (1998); Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619 (2001).
(119.) In addition to the Atkins decision, see, for example, Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (citing international norms in finding execution of offenders sixteen or younger inconsistent with the Eighth Amendment); Domingues v. State, 961 P.2d 1279 (Nev. 1998) (upholding death sentence, over dissent, against claim based on U.S. accession to the International Covenant on Civil and Political Rights). Cf. Printz v. United States, 521 U.S. 898, 921 n. 11 (1997) (rejecting relevance of comparative practice in federalism case); id. at 976-77 (Breyer, J., dissenting) (adverting to European practices to justify federal control of state authorities). For judicial observations outside the courtroom, see, for example, Sandra Day O'Connor, Keynote Address Before the Ninety-Sixth Annual Meeting of the American Society of International Law, 96 AM SOC'Y INT'L L. PROC. 348, 350 (2002) (allowing that international law can offer "persuasive authority" in interpreting U.S. law); Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International Human Rights Dialogue, 21 CARDOZO L. REV. 253 (1999) (arguing the relevance of international law to constitutional interpretation).
(120.) See, e.g., NYE, supra note 104; Robert Kagan, Power and Weakness, POL'Y REV., June 2002, at 3 (highlighting how Europeans are more accepting of international law than are Americans); Our Law, Your Law, ECONOMIST, June 29, 2002, at 18. relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination.
Peter J. Spiro *
* Professor, Hofstra University Law School. An earlier draft of this Article was presented at a Stanford Law Review Symposium on Treaties, Enforcement, and U.S. Sovereignty, February 21, 2003.
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|Title Annotation:||Symposium on Treaties, Enforcement, and U.S. Sovereignty|
|Author:||Spiro, Peter J.|
|Publication:||Stanford Law Review|
|Date:||May 1, 2003|
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