Academic journal article Stanford Law Review

Treaties, International Law, and Constitutional Rights

Academic journal article Stanford Law Review

Treaties, International Law, and Constitutional Rights

Article excerpt

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

INTRODUCTION

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. …

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