Except the Bill of Rights: The Selective-Strong Treaty Position

Generally, the entire Constitution is seen as having equal weight; there are not tiers of authority (unlike in the constitution’s of many other nations, which make certain provisions suspendable). Thus I have always been puzzled by the dominant view, well-articulated by Prof. Pildes, which manages to account for Missouri v. Holland and Reid v. Covert by saying that treaties can expand legislative powers but not infringe the Bill of Rights.

I do not see a strong basis to exempt just the Bill of Rights from the the general rule of treaties, whatever that rule may be, for several reasons. Mostly, I see no way to neatly sever the Bill of Rights from the rest of the Constitution.

1) There is no other area, to my knowledge, where one can override enumerated powers but not the Bill of Rights. If anything, the latter are at least waivable by individuals, while the former are not.

2) The 10th Amendment, reflecting the principle of Federalism, is of course part of the Bill of Rights. So the position must be “the Bill of Rights, except the last bit,” which seems even more selective.

3) Could a treaty override Bill of Rights protections against action by the states? If not, this means treaties can override everything except Amends. I-VII, (maybe XI, see below), and XIV, D.P. Clause. That sounds even more selective.

4) Individual rights protections are contained elsewhere besides the Amends. I-VIII. Take the jury trial provision of Art. III: can treaties override that? (It is not a hypothetical question, as this would be the effect of signing the Rome Statute of the International Criminal Court.) What about the President’s pardon power? We can imagine the creation of mixed courts for treaty crimes, with convicts made unpardonable.

5) Now lets turn back to amendments: why stop at the first eight? What about a treaty changing voting rights? Abrogating state sovereign immunity? (See Carlos Vasquez’s 2000 article arguing against abrogation.)

6) Another challenge for the theory is whether treaties can just the doctrine of enumerated powers, or all structural constitutional limits, including separation of powers. Many of the questions about the scope of the Treaty Power were previewed during the debate in the early 19th century over the constitutionality of joining international courts for the trial of the slave trade, about which I have written at length in The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals. In those debates, Quincy Adams and others argued successfully that treaties could not vest judicial power in a court independent of the “Supreme” court. Note that this also means that the treaty could not expand Congress’s power to create “inferior” tribunals by authorizing parallel or co-equal tribunals. This is a limitation on Congress’s Art. I powers.

7) I understand the notion that when we deal with the outside world, our internal arrangements do not matter. But the question of legislative power is not about dealing with the outside world, but enforcing that deal domestically. If the idea is that the fulfillment of our external promises cannot be hostage to our particular federal arrangements, why should it be hostage to our particular domestic rights?

8) The “not the Bill of Rights” view may be based on the notion that individual rights are special. But limited government and federalism is designed in part as a protection for individual rights.