The Supremacy Clause as Structural Safeguard of Federalism: State Judges and International Law in the Post-Erie Era

Halabi, Sam Foster, Duke Journal of Comparative & International Law

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state judges' authority under the Supremacy Clause to harmonize treaties and customary international law with state constitutional, legislative, and common law, and to influence federal jurisprudence on the scope and effect of binding international law. The Supremacy Clause empowers state judges to adapt international law to maximize benefits for--and minimize disruptions to-state policy objectives. As more areas of traditional state authority are displaced by international law, state judicial management of international law may be the strongest structural protection for state interests.

TABLE OF CONTENTS

INTRODUCTION
I. THE SUPREMACY CLAUSE, STATE JUDGES AND
     INTERNATIONAL LAW

II. CIVIL PROCEDURE
     A. Hague Service Convention
        1. State Judicial Limitation of the Treaty's Scope
        2. State Judicial Expansion of Alternative Means of Service to
           Facilitate Access to State Courts
     B. Hague Evidence Convention
        1. State Judicial Circumscription of the Treaty: the First
           Resort Rule
        2. Using the Hague Evidence Treaty to Give Effect to
           Plaintiffs' Choice of State Forum

III. CONTRACTS
     A. Contracts which Specify both a State Forum and Choice of
        International Law
     B. U.N. Convention on Contracts for the International Sale of
        Goods

IV. CRIMINAL LAW
     A. Valdez v. State: Incorporating Evidentiary, but not
        Preemptive, Effects from the Vienna Convention on Consular
        Relations
     B. Torres v. State: Defining "Prejudice" under the Vienna
        Convention on Consular Relations under State, not Federal
        or International, Law

IV. FAMILY LAW
     A. Hague Abduction Convention
     B. The Hague Abduction Convention as a Lesson in the Judicial
        and Political Safeguards of Federalism

V. CONCLUSION

INTRODUCTION

For most of American history, U.S. states have maintained an ambivalent relationship with international law. After they successfully cooperated in their military rejection of British rule, the states welcomed the attributes of sovereignty transferred to them under the law of nations as it existed in 1783. (1) In the early post-war period, however, the states used their sovereign powers in ways that strained the unity of the new confederation. (2)

   After the War for Independence, [t]he "States passed tariff laws
   against one another as well as against foreign nations; and,
   indeed, as far as commerce was concerned, each State treated the
   others as foreign nations. There were retaliations,
   discriminations, and every manner of trade restrictions and
   impediments which local ingenuity and selfishness could devise."
   Disputes between the States over border lands and overlapping land
   grants generated as much, if not more, hostility ... including
   periodic border skirmishes between settlers from different States.
   And conflicting claims to lucrative prize ships and spoils of war
   seized on the high seas were yet another source of high tension
   among the States. (3)

Although the Articles of Confederation prohibited states from entering into any "agreement, alliance or treaty" with foreign powers and, separately, provided that "no two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of [Congress]," (4) the states regarded the Articles themselves as a treaty among sovereigns. (5) As a treaty, the Articles gave neither Congress nor individual states effective remedies against breaches. When the constitutional drafters met to correct these and other problems caused by the Articles of Confederation, they determined states should relinquish more sovereign attributes in the transition from confederation to national republic, although the precise extent of that surrender remains unclear. (6) The U.S. Constitution largely allocated recognition, formation, and domestic effect of international law to Congress and the President, leaving somewhat diminished "political safeguards of federalism" to protect state interests when Congress defined or codified customary international law, or when the President's diplomatic agents entered into treaty negotiations.

Due in part to the ambiguities surrounding the redistribution of sovereign power under the U.S. Constitution, individual states, primarily through their legislatures, repeatedly attempted to assert their authority over both customary international law and ratified treaties to limit their influence or preserve state law-making prerogatives. (7) Federal courts invalidated many of these attempts, applying one of several doctrines of conflict or field preemption flowing from Article VI of the U.S. Constitution. (8) In the last decade, state governments have discovered that even legal regimes traditionally regarded as well within their constitutional domain may be subject to federal judicial veto as a result of a conflict with customary international law, presidential flexibility in the conduct of foreign affairs or even treaties the U.S. has not ratified. (9)

A new flashpoint has emerged as state legislatures again respond to the increasing influence of international law: state judiciaries. In the past year, Oklahoma adopted a constitutional amendment prohibiting its state judges from "considering" international law; the Arizona and Wyoming legislatures introduced similar constitutional amendments; and, more than 20 state legislatures considered "anti-international law proposals." (10) These initiatives proceed under presumptions held by many state legislators (and voters) that 1) politically unaccountable federal judges resort to otherwise non-binding international law to resolve disputes that are properly the province of U.S. or state law and 2) state judges emulate this behavior. Rex Duncan, the principal author of Oklahoma's constitutional amendment, State Question 755, stated that he introduced the measure as a "preemptive strike" aimed at preventing Oklahoma judges from mimicking federal judges who, "increasingly embrac[e] the idea that federal courts should look to international law to settle U.S. cases." (11)

Acknowledging that the first presumption--that federal judges illegitimately apply international law to resolve disputes--is the subject of considerable controversy, (12) this Article challenges the second presumption. It is true that legal historians largely agree that the Framers included the Supremacy Clause precisely because they believed state judges would privilege local interests over the national interest, especially its diplomatic or international component. (13) However, the relevance of this Article is not just to dispute prevailing suspicions that state judges improperly apply international law. The greater contribution is to explore the subtler ways in which state judges wield the Supremacy Clause, rather than wrestle with its constraints. I argue that state judges have regularly used their authority under the Supremacy Clause to shape both U.S. treaties and customary international law to advance their states' administrative and legislative objectives. (14) Indeed, both the text of Article VI and constitutional history suggest that state judges do so. (15) Often using customary international law as their principal authority, state judges have interpreted treaties to protect important state interests like their own citizens' …

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Publication information: Article title: The Supremacy Clause as Structural Safeguard of Federalism: State Judges and International Law in the Post-Erie Era. Contributors: Halabi, Sam Foster - Author. Journal title: Duke Journal of Comparative & International Law. Volume: 23. Issue: 1 Publication date: Fall 2012. Page number: 63+. © Not available. COPYRIGHT 2012 Gale Group.

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