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June 18, 2008

did the Supreme Court repeal the Supremacy Clause?

I was always under the impression that when the United States ratified a treaty, it became the law of our land. I got that idea from the U.S. Constitution, Article VI, section 2: "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

Because this seems like strong language, I was actually open to the argument that the US should be careful about signing international human rights treaties. Famously, we and Somalia are the only two countries that have not signed the UN Convention on the Rights of the Child. I thought: That's not good, but part of the reason is that we take treaties very seriously. To ratify the Convention would add a layer of law in our country and give individual children rights that courts could enforce. Courts might even order changes in state or federal budgets to comply with their reading of the Convention. Maybe there is a democratic argument against ratifying.

But then came the case of Medellin v. Texas, decided last year. Mr. Medellin was sentenced to death, but appealed on the ground that he had been denied the right to help from Mexico's consulate, as provided by the Vienna Convention on Consular Relations (which we have ratified). The International Court of Justice (IJC) ruled that he had a right to review of his sentence. The Bush Administration actually took the IJC's position and said that Texas should grant an appeal. But the majority of the US Supreme Court took Texas' side and permitted an execution. As Justice Roberts wrote for the court, "In sum, while the ICJ’s judgment ... creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions on the filing of successive habeas petitions."

In other words, because we signed the consular treaty, Congress should pass laws guaranteeing aliens the right to assistance by diplomats. But if Congress does not pass such laws, individuals have no enforceable rights under the treaty. And there is no sanction against Congress if it fails to pass laws.

I have friends who think the Medellin decision is an outrage. They say that the conservative justices ignored the plain text of the Constitution and 200 years of precedent. They offer two possible reasons: (1) The Court simply wanted Texas to execute Jose Ernesto Medellin (after all, Justice Roberts described his crimes in gory detail). Or (2) the Court dislikes international law so much that it will ignore a treaty that the Senate has ratified.

Whether these criticisms are fair depends--as such matters often do--on questions of precedent. If Medellin overturns 200 years of well-established law and makes the US an exception among nations, it is outrageous. If American precedents and the rules in other countries are more complex, then it is a more reasonable decision. I don't know which interpretation is correct.

Leaving questions of legal interpretation aside, I think it is often (but not inevitably) good for the US to sign onto widely ratified treaties that grant individuals rights against governments. I would like such treaties to be enforceable, regardless of what Congress chooses to do. On the other hand, I also believe in the obligation of the US Congress to make all laws. When the US ratifies treaties, only the Senate and the president must agree, and they can agree to a very vague principle. Before the Medellin decision, courts would have to decide how precisely to implement a treaty. Thus I can see a fairly reasonable argument that Congress should always pass specific enabling legislation after a treaty is ratified.

June 18, 2008 10:05 AM | category: none


I do think this is a repudiation of the Supremacy clause. You cite the important issue here: if treaties trump the Constitution, because they are "supreme," then the Senate and President can do an end run not only around the House of Representatives, but also around the Constitutional amendment process. A bilateral treaty with Latvia would be all it took to change the 5th Amendment. Since this was Medellin's basic claim, though with regard to a multilateral treaty, I tend to prefer this decision.

The Supremacy Clause is a structural booby trap, and the Supreme Court simply noticed there's no way to preserve their own precedence without at least allowing treaties to be translated into statute by the full legislative branch. As we just saw again in Boumediene, SCOTUS says "what the law is." Even if we don't agree with the majority all the time, we're all better off that way.

I justify this to myself because I think the Supremacy Clause is radically undemocratic holdover of the Federalist's Constitution, that was trying to prop up the executive against the risks of an overly weak foreign policy, and that still assumed that the Senate would be an elite body untouched by ordinary political pressures, elected by State legislatures instead of ordinary citizens. Moreover, the Constitution was written in a world where treaties were used to make peace and regulate trade, not to make deontological interventions into the legal systems of the signatories.

The most radical treaty obligations imaginable at the time of the the Constitution's composition would have been something like a Perpetual Peace League of Nations, obligating member states to avoid weapons buildups, national debt, and standing armies, along with the promise to come to each other's aid in suppressing bellicose states. Kant's Perpetual Peace essay was (I believe) the first to propose that such a League of Peaceful Nations would also require political and constitutional interventions within its member-states, in requiring the republican form of government within the states. But that was written in 1795.

June 18, 2008 2:34 PM | Comments (1) | posted by anotherpanacea

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