regarded as superior to ordinary federal legislation within the
United States. 75 There is, however, still the
problem that treaties between the United States federal
government and foreign states are considered the supreme law of
the land. 76 That is, the Supremacy
Clause of the United States Constitution elevates treaties above
ordinary legislation of the several states in the United States,
and courts have interpreted treaties to be superior to the
constitutions of the several states as well. 77
That makes the process of indicating U.S. commitments via
declarations and reservations all the more important.
There
is, however, an argument against the view that treaties are
superior to state constitutions. The federal government was
formed by the consent of the states. 78 Thus, any act of the federal
government in opposition to any state’s constitution should be
seen as ultra vires. The United States federal government is a
government of limited, enumerated powers. 79
Treaties that exceed the powers and object of the federal power,
which arrogate power to the federal government, are, as a matter
of logic, unconstitutional. 80
taken by the United States Supreme Court. Missouri v. Holland
suggests that treaties can, in fact, expand the federal power. 81
Foreign policy is exclusively the province of the federal
government, 82 especially the presidency. 83
The Court in Holland grounded the power to expand federal power
by way of treaty as implicit in the Necessary and Proper Clause.
84
The better view, however, is expressed in Reid v. Covert. 85
There, a plurality of the Court held that a treaty could not
violate the Fifth Amendment. 86
situations where the federal power is implied and where there is
no contradiction between the expansion of federal power and the
written text of the Constitution itself, including its
amendments. Such an argument seems strained. The better view is
found through logic, since law is right reasoning in accord with
the nature of things. 87 A treaty can be
unconstitutional. 88 An unconstitutional law
cannot be enforced domestically. 89 A treaty, *808
however,
creates an obligation under international law. 90
The validity of a treaty obligation under domestic law is
irrelevant to its validity under international law. 91
Such a treaty would bind the United States in its relations to
other states overseas. Nevertheless, such a treaty cannot,
constitutionally, be given direct effect within the United
States. That is the only logically consistent solution: to see
the unconstitutional treaty, though a valid international law
obligation, as being per se non-self executing at least until
the treaty is somehow amended into constitutional conformity.
Even there, the issue of whether such a treaty has retroactive
domestic effect lurks. Happily this contorted hypothetical, a
Gordian knot, is well beyond the topic of this paper and shall
not be exposed further here.
75. “Treaties and federal
statutes are treated equally under the Supremacy Clause, but the
Constitution describes distinct procedures for creating each.”
Benjamin Beiter, Note, Beyond Medellàn: Reconsidering Federalism
Limits on the Treaty Power, 85 Notre Dame L. Rev. 1163, 1191
(2010).
Const. art. VI cl. 2.
77. See, e.g., United States v.
Belmont 301
U.S. 324, 331-32 (1937).
the United States are to be exercised without regard to state
laws or policies. The supremacy of a treaty in this respect has
been recognized from the beginning. Mr. Madison, in the Virginia
Convention, said that if a treaty does not supersede existing
state laws, as far as they contravene its operation, the treaty
would be ineffective. “To counteract it by the supremacy of the
state laws, would bring on the Union the just charge of national
perfidy, and involve us in war.” And while this rule in respect
of treaties is established by the express language of clause 2,
article 6, of the Constitution, the same rule would result in
the case of all international compacts and agreements from the
very fact that complete power over international affairs is in
the national government and is not and cannot be subject to any
curtailment or interference on the part of the several states.
In respect of all international negotiations and compacts, and
in respect of our foreign relations generally, state lines
disappear. As to such purposes the state of New York does not
exist. Within the field of its powers, what ever the United
States right-fully undertakes, it necessarily has warrant to
consummate. And when judicial authority is invoked in aid of
such consummation, State Constitutions, state laws, and state
policies are irrelevant to the inquiry and decision. It is
inconceivable that any of them can be interposed as an obstacle
to the effective operation of a federal constitutional power.”
3 The Debates in the Several State Conventions on the Adoption
of the Federal Constitution 515 (Jonathan Elliot ed., 2d ed.
1836)).
78. The contract theory of the
constitution holds that the U.S. Constitution is a contract
between the states to create a federal government. H. Jefferson
Powell, The Original Understanding of Original Intent, 98 Harv. L.
Rev. 885, 933-35 (1985).
79. See Marbury v. Madison, 5
U.S. 137, 176 (1803).
80. But see Missouri v. Holland,
252
U.S. 416, 434 (1920) (United States federal government may
arrogate power from the states via international treaty). See also
Beiter, supra note 75, at 1196; Leonie Huang, Note, Which Treaties
Reign Supreme? The Dormant Supremacy Clause Effect of Implemented
Non-Self-Executing Treaties, 79 Fordham L. Rev. 2211, 2232 (2011).
81. Holland, 252 U.S. at 434.
Const. art I. § 8.; art. I § 10.
Const. art. II, § 2.
84. Holland 252 U.S. at 432.
U.S. 1 (1957).
86. Id. at 39.
87. Cicero, The Laws, in The
Republic and The Laws 95, 105 (Niall Rudd trans. Oxford Univ.
Press 1998).
88. Henry St. George Tucker,
Limitations on the Treaty-Making Power Under the Constitution of
the United States 22 (1915).
89. Marbury v. Madison. 5 U.S.
(1 Cranch) 137, 173 (1803).
90. Jan Klabbers, The Concept of
Treaty in International Law 55 (1996).
91. See, e.g., John H. Jackson,
The Jurisprudence of GATT & the WTO: Insights on Treaty Law
and Economic Relations 336-37 (2000).
92. Luisa Blanchfield, Cong.
Research Serv., The United Nations Convention on the Rights of the
Child: Background and Policy Issues 18 (2009).