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Judges Endorsing Restrictions on Speech That Supposedly Offends International Law Norms:

Recent instances of U.S. judges — most recently, the Supreme Court's moderate liberal wing, plus moderate conservatives Justices O'Connor and Kennedy — using international law in interpreting the U.S. Constitution has led many people to be concerned. I at first wasn't much troubled.

Then, though, I expressed some worry, when I saw an argument (by a prominent liberal U.S. international law scholar) that "If some constitutional norms are more appropriately set at the international level, that should justify a treaty power that, in some cases, overcomes even the Bill of Rights." This scholar endorsed such a result, under which (for instance) international norms supporting the suppression of allegedly bigoted speech could be used to trump First Amendment rules; but I find that a very troubling consequence. And I echoed this most recently as to the cartoon affair, given the calls by a U.N. official to investigate the publication of the cartoons as potentially criminally punishable.

It turns out, though, that there has indeed been a case in which the Supreme Court was asked to uphold a restriction on speech that offends supposed international law norms — a content-based restriction on political speech in a traditional public forum, the sort of restriction that is usually treated as most constitutionally suspect. In Boos v. Barry, a local ordinance banned (among other things) "display[ing] any . . . placard . . . designed . . . to . . . bring into public odium any foreign government . . . or . . . political, social, or economic acts, views, or purposes of any foreign government" within 500 feet of that country's embassy. The ordinance was challenged by anti-Communist picketers who wanted to protest in front of the Soviet and Nicaraguan embassies.

The government, and some judges, defended the ordinance on the grounds that it was necessary to comply with international norms. International law, the argument went, banned certain kinds of speech that insults foreign ambassadors. The First Amendment must be interpreted in light of this international law norm, so that otherwise constitutionally protected speech could be suppressed because of international law. The Supreme Court ultimately rejected this argument, though not without dissent.

Here are the questions:

(1) Which controversial court of appeals judge wrote the lower court opinion that upheld the restriction on speech that insults foreign ambassadors, on the grounds that "the first amendment" "must be accommodated" with "the United States' . . . obligations under the law of nations"?

(2) Which Supreme Court Justice wrote the opinion that endorsed this view?

(3) Which Supreme Court Justice wrote the opinion that disagreed, stressing that "no agreement with a foreign nation can confer power on the [Government] . . . which is free from the restraints of the Constitution," and suggesting that "the fact that an interest is recognized in international law does not automatically render that interest 'compelling' for purposes of First Amendment analysis" (though ultimately not reaching the issue because the Justice concluded that the international law interest could be adequately served without this speech restriction)?

(4) How did the other Supreme Court Justices vote on the matter?

Steve:
Wow, that's one heck of a find, Prof. Volokh.
2.13.2006 4:59pm
Eugene Volokh (www):
We're one heck of a blog!
2.13.2006 5:07pm
Gordo:
Sandra Day O'Connor: Right AGAIN!
2.13.2006 5:08pm
Hans Bader (mail):
The argument that international law norms override free speech isn't made quite that blatantly or directly.

Instead, it's asserted that since Supreme Court case law recognizes that even a content-based restriction on speech can be justified by a "compelling state interest" (as the court has held for the past generation, never mind the lack of any "compelling interest" language in the First Amendment), and since complying with international law seems pretty compelling compared to the other reasons the courts have given for restricting speech, an international law norm can justify a "narrowly-tailored" restriction on speech (of course, "narrow tailoring" in such a case just means that the restriction on speech isn't unrelated to the international law norm, not that it isn't a serious intrusion on free speech).

Those who point out that this is boot-strapping are then reminded that the Supreme Court has never adopted any coherent theory of what is or isn't a compelling interest, and has found almost any rational government goal (aside from simple administrative efficiency) to be a compelling interest when the question is presented.

As Justice O'Connor observed in Waters v. Churchill (1994), the Supreme Court has never adopted any general test for what is or isn't a compelling interest. (Sadly, given her penchant for avoiding any clear legal rules, she did not seem to view that as a bad thing). That lack of any clear test for what interest in suppressing speech is or is not "compelling" gives judges broad discretion to uphold speech restrictions that they (and politicians) like even when it restricts core political speech, simply by declaring the goal of restricting such speech to be "compelling." (And the broader the state interest conjured up by the Justices -- such as avoiding the "appearance" of corruption, or the possibility of "disparate impact" on members of protected classes -- the broader the range of speech that can be suppressed).

Fortunately, the Supreme Court in Boos v. Barry refused to follow its own censorial "compelling interest" analysis to its logical conclusion, and upheld free speech even against asserted international law norms.
2.13.2006 5:13pm
anonymous22:
The two-tiered review (strict scrutiny/rational basis) is in some ways the saving grace of constitutional law and in some ways its bane. Very few laypeople seem to understand that the constitution doesn't require the government to do stupid things (or not do helpful things) in service of either some notion of original intent (the naive conservative view) or some broad moral theory (the naive liberal view). The two-tiered review is indeed essentially standardless ("strict in theory, fatal in fact")-- though Hans is incorrect when he asserts that the SC has never found rejected a rational basis when presented as a compelling interest; see Texas v. Johnson. But two-tiered review probably also wards off many stupid interpretations of the Constitution by asking about the function of the law in question, not about its conformity to some absolutist notion of what the Constitution supposedly means.
2.13.2006 5:46pm
Ubertrout (mail) (www):
FYI, the Spiro article (Treaties, International Law, and Constitutional Rights) is no longer online.
2.13.2006 5:52pm
therut:
They will go after our guns first. And as Derowitz(sp) has stated the liberals will lead the way to the demise of those rights they support by paving the way to get rid of those they hate. The UN is well on its way trying to get a treaty that will reach the 2nd amendment. Liberals will not blink an eye. As amatter of fact they are pushing it espically with their NGO's.
2.13.2006 5:56pm
Michelle Dulak Thomson (mail):
Golly, Eugene, good one!
2.13.2006 6:06pm
JJV (mail):
Wasn't that case a "time place and manner" restriction? The protesting wasn't prohibited except near embassies or some such. I wonder if it has anything to do with foreign law at all.(haven't had time to read but thought I'd throw it out to the gallery from memory). Also, isn't it a little different in that here as described the Court could look at what the "law of nations" was in 1789 rather than simply incorporate any dang thing that has happened since then? Its one thing if the view of ambassadors inviobility even w/n the first amendment was "baked in the cake" of the 1st amendment back then, its another if the 1st amendment can be diminished after the fact by treaty.
2.13.2006 6:26pm
myalterego (mail):
As to the moral of the story, there are other examples as well of liberals and conservatives favoring one mode of interpretation over another to suit their means at various historical points. To wit, conventional wisdom of the last decade holds that conservatives are the true proponents of states' rights. However, in light of issues like gay marriage, for instance, liberals will be happy to carry the mantle of federalism.
2.13.2006 6:31pm
Taeyoung (mail):
Leaving the substance of the legal reasoning aside, I'm surprised that any international legal norm could be extended to support a ban on displaying placards in protests outside the embassy of a foreign power. That just strikes me as bizarre. Don't people protest outside of our embassies all the time?
2.13.2006 6:38pm
Jon Black (mail):
With all due respect to the host, this is a rather thin analogy. The context of the import to be given to international law is so different in the two cases that comparison is almost abusrd.

In Boos, the international law at issue was a regulation that had binding effect on the actions that the US was allowed to engae in. In short, the US was obligated to follow the international law in question (the court uses the term "obligation" for point of comparison.) Such obligation neccesarily alters the first amendment analysis that follows, in that the US has an obvious state interest in maintiaining thier obligation.

In Lawrence, Grutter, and the "emerging consensus" cases no such obligation exists. Inded the majorites in all cases are explicit that no such obligation exists. However, the court chooses to consider international law in an interpretive effort, not out of obligation but out of prerogative. Thus the amendment analysis is intertwined with international law though no legal basis exists for such interplay.

Conflating the two instances of internationl law consideration is dubious, sloppy, and generally unimpressive. In short, it's about what I'd expect from a bRuin.
2.13.2006 6:40pm
Jon Black (mail):
To be fair I should add that it is decidedly out of character for the ruin in question.
2.13.2006 6:43pm
TomCS (mail):
This is a fascinating glimpse of a part of the US's unique constitutional set-up, and one of the reasons I keep returning to read this blog.

But as a retired diplomat from the other side of the pond, it, and the surrounding commentary, seem to raise an interesting broader issue. Sorry if you consider it off-topic. Does this approach mean, in effect, that even when the constitutional requirements for making treaties have been met, the US reserves the right to refuse unilaterally to implement them if subsequently a conflict is seen with US domestic law, or a later interpretation of the US Constitution? What is the status in US jurisprudence of a treaty "made" by the President "provided two-thirds of the Senators present concur"? The norms of international law require that a country should not ratify a treaty until it has taken the steps necessary to apply it internally, where that is required, and the other states parties are entitled to the assumption that when the USA ratifies a treaty, it will apply it, and apply it consistently, and if its procedures do not automatically adopt the Treaty into domestic law, that law will have been suitably amended. Equally, if it wishes no longer to do so, it will apply the approriate procedures set out in the treaty (or in the law of treaties) for so doing.

The case cited above reflects among other things the UN Charter, which is itself an international treaty (and one greatly influenced by US drafting): does the US as a state now reserve the right to selectively apply its provisions? This is not a trivial question: for example, the UN Treaty includes provisions for assessing the UN's budgets, payment of which is subsequently a treaty obligation. The US has consistently been in arrears with respect to those budgets, and close to being in formal default, as a political ploy to weaken the organisation's authority or block duly agreed UN actions with which it disagrees.

This attitude sits badly with the various attempts to apply US law extra-territorially, eg in terms of Cuba, and is another element in the set of stances which do nothing to improve US popularity or moral authority outside the Union.

Who, incidentally, under the Constitution, is the guardian of the force of duly adopted treaties? Could a foreign Government seek the support of the courts to oblige the executive to meet its obligations under duly adopted treaties?

PS I have here only considered the case of formally adopted treaties, and many international lawyers and tribunals would argue that it goes wider than that: that is a separate argument.
2.13.2006 7:14pm
Eugene Volokh (www):
Under U.S. law, the U.S. government has not just a right but a duty not to enforce provisions of treaties that violate the U.S. Constitution. The Constitution trumps treaties as far as the U.S. government is concerned, just as it trumps statutes.

Now of course this means that the U.S. ought not ratify treaties that require it to violate the U.S. Constitution, or ought to ratify them with reservations that make clear that the U.S. will not comply with those provisions that are inconsistent with the U.S. Constitution. (In some circumstances, of course, the Executive Branch might persuade Congress and the States to enact a constitutional amendment that would then make it possible to fully comply with a proposed treaty.) But if the U.S. ratifies a treaty that requires it to violate the U.S. Constitution, it must still comply (as a matter of domestic law) with the U.S. Constitution, even though that would obviously put it in an unpleasant international position.
2.13.2006 7:18pm
Jacob T. Levy (mail):
And the fact Eugene draws attention to immediately above is relevant to the U.S.' comparative slowness to sign onto many international-law documents, and its insistence on doing so with formal reservation clauses in other instances. The Senate has often signalled to the President unwillingness to ratify a treaty because of constitutional concerns-- often though not only First Amendment concerns.

With due respect to TomCS, the same question arises in most states with written constitutions-- since he's from "the other side of the pond" I assume that's not true of his legal system. In many such states, either the constitution or [some] treaty obligations or both are dead letters with respect to the domestic legal system, so it doesn't matter. But in written-constitution constitutional democracies, it's supposed to matter-- and some such states have been too quick with the ratifying pen and too slow to examine whether the treaty obligations conflict with domestic constitutional obligations, with the result that one or the other is taken insufficiently seriously.
2.13.2006 7:31pm
David Berke:
With all due respect to other opinions, I believe that the reasoning suggesting the case in this matter is somehow different is inherently flawed. Put simply, this theory is that (1) a compelling interest is needed to overcome constitutional protections. (2) Signing a treaty creates a compelling interest to follow international law. (3) This compelling interest overcomes the protections of the U.S. Constitution.

Such a statement is absurd for two distinct reasons; (1) Following law is never in itself a sufficiently compelling interest, or every law would be constitutional, and our Constitutional protections would be meaningless. There is no meaningful distinction between national and international law in this regard - either the interest driving the law is strong enough, or it is not. (2) This would allow any president to trump various constitutional protections by signing a treaty which takes such rights away; Imagine a treaty regulating or forbidding gun ownership, or another treaty forbidding campaign contributions, or a third treaty forbidding the practice of Buddhism.

So, although Mr. Black is certainly correct to point out that one involved an obligation, and another was simply a blatant look to other societies, to suggest that the treaty should be granted any special status in constitutional review is simply wrong. Both involve an inappropriate look at irrelevant legal principles generated in other countries, and to that point, the comparison is fair.
2.13.2006 9:51pm
therut:
IANSA< ISANA< REBECCA PETERS< UN SMALL ARMS TREATY!!!!!!!!!!!!!!!!!!!!!!!!!!!!! The group that believes all small arms should be regulated to allow private ownership only of rifles that are single shot and can hit at 100 feet only. And only if they are kept in a Government Storage Facility and checked out by the owner. President Bush and Bolton said no way to this treaty as it would be aganist the 2nd amendment. What would Gore, Kerry, Hilliary or any liberal Democrat say????????????????????????????????????????????????????
2.13.2006 10:29pm
belle (mail):
well, I would say that flagrantly violates the second amendment, which guarantees an individual's right to bear arms. thanks for asking!
2.13.2006 11:20pm
Gordo:
Of course there is a plausible argument, accepted by a consensus of the Consititutional Scholar's club until Professor Volokh and others started picking away at it, that the 2nd amendment doesn't guarantee an individual right to bear arms. The only Supreme Court decision on the subject (Miller v. U.S., 1939), agrees with this interpretation. So such a treaty banning ownership of all small arms beyond the level of muskets, should any American President be politically suicidal enough to sign it, and any United States Senator politically suicidal enough to ratify it, would most like not violate the United States Constitution.
2.14.2006 12:47am
Gordo:
Or so the Supreme Court would say, unless Professor Volokh and the 2nd amendment revisionists could convince a majority of Supreme Court Justices otherwise.

And sorry for the misuse of apostrophes - it should be Scholars' Club...
2.14.2006 12:49am
therut:
Scholars of some sort my have come up with what they see as plausible but they have yet to get a very large porportion of the citizens to read the plain English of the constitution in their plausible way. Maybe because their plausible thinking is "new" or should I say "progressive" and a figment of their educated minds.( or their wishful thinking) Just like the idea that Miller supports their plausible theory. All their thinking might just lead them down a road they may not want to go down. As noted what is done plausibly to the 2nd could be done to others dear to their heart.
2.14.2006 1:17am
dew:
TomCS,

For example, Guatemala passed into law the Hague treaty on international adoption couple of years ago, which was ratified despite constitutional concerns in part due to intense pressure by UNICEF. The Guatemala constitutional court later struck down the law as incompatible with the constitution.

That made the regional press, but not the international press. Like most or all of central/south America, Guatemala has a written constitution, and as Jacob Levy suggests, it would not be hard to dig up more examples. It is just that the US makes the international news; they don't.

As for UN funding (note I am no constitutional law expert): Article I (about congress) section 9 of the US constitution: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law". Put simply, that makes it very unlikely, even if some court were to rule that congress was in violation of a treaty obligation, that anyone except congress could do anything about it. In its annual budget congress routinely violates requirements in other laws for funding to the states, so the UN is just one entity in line with a tin cup…
2.14.2006 9:24am
Harry Niska (mail):
In case anyone is interested, I explored this topic and the Spiro article in Harry N. Niska, Note: The European Union TRIPS over the U.S. Constitution: Can the First Amendment Save the Bologna That Has a First Name?" 13 Minn. J. Global Trade 413 (2004). The upshot is that the Boos v. Berry view that international treaty obligations can be a "compelling state interest" seriously cuts against the Reid v. Covert rule that the U.S. government does not have the power to enter into unconstitutional treaties, and in the conflict between those two rule, Reid v. Covert should win. That discussion was somewhat tangential to my normal thesis, so it mostly occurs in the footnotes and I'm sure many smarter people will be able to provide much better analysis of the situation.
2.14.2006 9:32am
farmer56 (mail):
Bill of Rights....Again...Is restrictions on the government. the 2cnd Ammendment BANS the Government from taking guns from the people. There is not a single way any treaty or UN ratifacation of some inane resolution can override the constitution. OK? NOT the Bill of Rights. Enumerated bans on government actions.

myalterego;

You limited your one comment to gay marriage. People of the same gender can get married in any state in the union. The bitch is about the perks give to mairrieds. Other than a few tax considerations, that are entirely in the pervue of the government,state, and, federal, there is not a single item that can not be fixed by a power power of attourney. This is a non starter. Prove me wrong.
2.14.2006 9:47am
Juan Notwithstanding the Volokh:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . ."

U.S. Const. Art. VI, sec. 2.

Reading the plain text of the Supremacy Clause, federal laws are made "in Pursuance" of the Constitution, and therefore necessarily are inferior even though superior to state laws. That is, a law that is made in pursuance of the Constitution cannot conflict with the Constitution.

Treaties, on the other hand, need not be made in purusance of the Constitution. In fact, treaties made "under the authority of the United States" are the supreme law of the land along with the Constitution.

How then to deal with a treaty that conflicts with the
Constitution? If the Constitution conflicts with itself, then the later-enacted provision controls. Can the Constitution then be effectively amended by a treaty?

JNOV
2.14.2006 9:58am
Juan Notwithstanding the Volokh:
In case it's not clear, the above post responds to Prof. V's assertion that the Constitution is supreme to Treaties, just like federal laws. I think that is not necessarily so, at least from a plain text reading of the Supremacy Clause.
2.14.2006 10:01am
Harry Niska (mail):
Juan, I think there is a far more plausible reading of that language in the supremacy clause. There were a number of treaties that the U.S. had entered into while organized under the Articles of Confederation. The framers wanted those treaties to continue to remain in force. As a result, they had to use language that would allow treaties that were enacted pursuant to the authority of the United States, but not in pursuance to the Constitution which didn't yet exist.

In any event, Justice Black wrote in the plurality opinion in Reid v. Covert that any treaty that goes beyond the express limitations of the Constitution is not a treaty made under the authority of the United States. All of the authority of the United States is limited by the specific enumerations of power and limitations on power contained in the Constitution.

I will refrain from the temptation to cite myself.
2.14.2006 10:17am
Clayton E. Cramer (mail) (www):
myalterego writes:


To wit, conventional wisdom of the last decade holds that conservatives are the true proponents of states' rights. However, in light of issues like gay marriage, for instance, liberals will be happy to carry the mantle of federalism.
I think you need to be a little precise in your claim. The federal Defense of Marriage Act did not preclude states from recognizing same-sex marriage, in their own state, or those recognized by other states. It did guarantee that no state could be compelled the recognize same-sex marriages from other states. This is a defense of federalism—that states have the authority to determine what the laws will be for matters that are purely intrastate.
2.14.2006 10:39am
Gordo:
From Miller v. U.S.:

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.


Leonard Pitts has an interesting opinion piece in my local paper this morning on the rise of "designer facts." It's no longer enough to have different opinions about the same set of facts - now we must all twist the facts to suit our purposes as well.

It's one thing to diasgree with U.S. v. Miller on the 2nd amendment. It's quite another to claim that U.S. v. Miller isn't a clear statement that the "well-regulated militia" clause of the amendment is paramount over an "individual rights" component.
2.14.2006 11:25am
Clayton E. Cramer (mail) (www):
Gordo writes:


Leonard Pitts has an interesting opinion piece in my local paper this morning on the rise of "designer facts." It's no longer enough to have different opinions about the same set of facts - now we must all twist the facts to suit our purposes as well.

It's one thing to diasgree with U.S. v. Miller on the 2nd amendment. It's quite another to claim that U.S. v. Miller isn't a clear statement that the "well-regulated militia" clause of the amendment is paramount over an "individual rights" component.
1. If your claim was correct, then the Supreme Court could have dealt with this matter quite simply. "Is Mr. Miller a member of a well-regulated militia? No? Then why would there be any question about whether the National Firearms Act violates the Second Amendment?" Instead, the Miller decision goes on at some length discussing why the trial judge erred in taking it under judicial notice that a sawed-off shotgun was a militia weapon.

2. The Miller case is quite astonishing because only one side was represented. Miller was not represented--only the Solicitor General was there to represent the government's side. Not surprisingly, the list of decisions the Miller decision cites is very one-sided, and comes to conclusions that were represented an extreme minority viewpoint--and some of the cited cases (such as Jeffers v. Fair) have no applicability to the question at all.
2.14.2006 11:39am
farmer56 (mail):
Miller v US

Gordo Quotes the Miller decission. But fails to quote the constitution.

'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming,

This is a judicial opinion not anywhere found in the constitution. We, the people of the USA are governed by the elected not a judacricy.
2.14.2006 11:48am
Houston Lawyer:
JNOV

So the administrations in Mexico and the US could enter into a treaty requiring abortions to be prohibited and that treaty would trump Roe upon approval by 2/3rds of the Senate?

Even though I believe Roe and its progeny are horribly wrong, I would never support an interpretation of the Supremacy Clause that would allow treaties to trump the constitution. Down that path lies madness.
2.14.2006 12:37pm
Neal Lang (mail):
Of course there is a plausible argument, accepted by a consensus of the Consititutional Scholar's club until Professor Volokh and others started picking away at it, that the 2nd amendment doesn't guarantee an individual right to bear arms. The only Supreme Court decision on the subject (Miller v. U.S., 1939), agrees with this interpretation. So such a treaty banning ownership of all small arms beyond the level of muskets, should any American President be politically suicidal enough to sign it, and any United States Senator politically suicidal enough to ratify it, would most like not violate the United States Constitution.

WRONG! Miller decided nothing, except possibly that a firearm such a M16, would be the type protected from "infringement" under the 2nd Amendment. There was no discussion as to Mr. Miller's eligibility to "keep and bear arms", merely the sort of arms (firearms of proven military utility), that the 2nd Amendment insures that he might "keep and bear". Had Mr. Miller possessed a Thompson Submachine Gun (a firearm that was standard US military issue at the time) instead of a "sawed-off shotgun", based on Justice Reynold's opinion in Miller, the National Firearms Act of 1934 would have been over-turned on Constitutional grounds.
2.14.2006 2:08pm
Neal Lang (mail):
It's one thing to diasgree with U.S. v. Miller on the 2nd amendment. It's quite another to claim that U.S. v. Miller isn't a clear statement that the "well-regulated militia" clause of the amendment is paramount over an "individual rights" component.

The only "clear statement" made by Reynold's in the Miller Case was that the Supreme Court lacked evidence that a "sawed-off shotgun" was part of the "standard equipment" of the military. For that reason he remanded the case back to District Court to gather more evidence. Read the decision, this is all that it said. Again, Mr. Miller's "individual right" to "keep and bear" a Thompson Submachine Gun was never addressed, merely if a "saw-off shotgun" had any "military utility". And even that question was not clearly answered as the court admitted it lacked the evidence to make such a finding.
2.14.2006 2:16pm
Neal Lang (mail):
How then to deal with a treaty that conflicts with the Constitution? If the Constitution conflicts with itself, then the later-enacted provision controls. Can the Constitution then be effectively amended by a treaty

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and 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.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.>

The key is "and all Treaties made, or which shall be made, under the Authority of the United States". The Presidential Oath requires:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The Senate swears and Oath "to support this Constitution". The question is can the President negoiate a treaty which violates the Constitution, or can the Senate ratify an unconstitutional treaty? Obviously, under the Constitution, tey have no such "authority"!

Interestingly, the Courts and the Congress allow the President quite a bit of latitude in regards to his treaty making power (not unlike his "war powers"). For example, the Congress appropriated a specific amount for the Louisiana Purchase. In negotiations, the US negotiators had to exceed the Congressional approved amount - which they did. Subsequently the Congress approved and paid the higher amount, although the President lacked budgetary (Constitutional) authority to exceed the appropriated amount.
2.14.2006 2:41pm
farmer56 (mail):
Huston lawyer has it nailed.

The US and Mexico enter into an agreement to stop all abortions.

Hey its a treaty. Guess all the future courts and congress' are bound. The courts dont get to play.
2.14.2006 2:54pm
Jason Fliegel (mail):
Any discussion of how to resolve conflicts between constitutional provisions and the United States' treaty power should begin with the Migratory Bird Treaty Case -- Missouri v. Holland, 252 U.S. 416 (1920). Justice Holmes wrote a very short opinion, which I'll reprint in full:


This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of [252 U.S. 416, 431] July 3, 1918, c. 128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes. The State also alleges a pecuniary interest, as owner of the wild birds within its borders and otherwise, admitted by the Government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a State. Kansas v. Colorado, 185 U.S. 125, 142 , 22 S. Sup. Ct. 552; Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 , 27 S. Sup. Ct. 618, 11 Ann. Cas. 488; Marshall Dental Manufacturing Co. v. Iowa, 226 U.S. 460, 462 , 33 S. Sup. Ct. 168. A motion to dismiss was sustained by the District Court on the ground that the Act of Congress is constitutional. 258 Fed. 479. Acc. United States v. Thompson (D. C.) 258 Fed. 257; United States v. Rockefeller (D. C.) 260 Fed. 346. The State appeals.

On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed many parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified closed seasons and protection in other forms, and agreed that the two powers would take or propose to their lawmaking bodies the necessary mes ures for carrying the treaty out. 39 Stat. 1702. The above mentioned act of July 3, 1918, entitled an act to give effect to the convention, prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by [252 U.S. 416, 432] the Secretary of Agriculture. Regulations were proclaimed on July 31, and October 25, 1918. 40 Stat. 1812, 1863. It is unnecessary to go into any details, because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States.

To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article 2, Section 2, the power to make treaties is delegated expressly, and by Article 6 treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed.

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 Fed. 154. United States v. McCullagh, 221 Fed. 288. Those decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people, and that under cases like Geer v. Connecticut, 161 U.S. 519 , 16 Sup. Ct. 600, this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force. [252 U.S. 416, 433] Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty- making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. Andrews v. Andrews, 188 U.S. 14, 33 , 23 S. Sup. Ct. 237. What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. We are not yet discussing the particular case before us but only are considering the validity of the test proposed. With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.

The State as we have intimated founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away. If we are to be accurate we cannot put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself.

As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate, such general grounds are not enough to support Missouri's claim. Valid treaties of course 'are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States.' Baldwin v. Franks, 120 U.S. 678, 683 , 7 S. Sup. Ct. 656, 657. No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell, 3 Cranch, 454, with regard to statutes [252 U.S. 416, 435] of limitation, and even earlier, as to confiscation, in Ware v. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the State in Chirac v. Chirac, 2 Wheat. 259, 275; Hauenstein v. Lynham, 100 U.S. 483 ; DeGeofroy v. Riggs, 133 U.S. 258 , 10 Sup. Ct. 295; Blythe v. Hinckley, 180 U.S. 333, 340 , 21 S. Sup. Ct. 390. So as to a limited jurisdiction of foreign consuls within a State. Wildenhus' Case, 120 U.S. 1 , 7 Sup. Ct. 385. See Ross v. McIntyre, 140 U.S. 453 , 11 Sup. Ct. 897. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case.

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota, 250 U.S. 118 , 39 Sup. Ct. 403.
2.14.2006 4:42pm
Juan Notwithstanding the Volokh:
Jason,

So are you saying that the Constitution can effectively be amended by treaty?

"The abortion-forbidding treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation penumbra from the general terms of the Tenth Fourth, Fifth, and Fourteenth Amendments."
2.14.2006 6:11pm
TomCS (mail):
Thanks to all of the posters, and in particular to the Eugenes and Jason who have reacted to my queries. My own innocent reading of your constitution (annexed to my copy of the Federalist Papers) suggested that the Founders had no problem with international treaties as they operated at the time, if properly entered into (i.e. in the narrow sense of having a two-thirds majority of Senators voting). As a result, there appears to be a potential problem of conflict of laws domestically between treaty obligations (whether carelessly adopted, or subject to subsequent legal or political rethinking, which concerns me more) and domestically made law.

I therefore found Jason Fliegel's post and Justice Holmes' opinion fascinating.

Some comments on other posts. Neal Lang's first. I'm prepared to stipulate, if I have the US legal term right, that neither the US President of the day, nor his Senators will knowingly accede to a Treaty which conflicts with the US Constitution as amended. If that is seen as a real risk, perhaps all Treaties should also get Supreme Court approval as well - but the Founders didn't write it so. I believe some Western European "Constitutional Courts" have that role, just as they review the product of the legislature before it becomes law. My concern is with "proper" treaties. How does the US system ensure that US formal international obligations constitutionally entered into are not subverted by line item wrangling in the House (which the Founders possibly intentionally kept out of treaty matters) or passing fads in legal interpretation of the Constitution. "Treaties are not for Christmas..."

Neal's Louisiana Purchase reference is tantalisingly parallel to the US problems with UN budgets: you send your negotiators off with a mandate, but recognise that they may only meet some of the detailed objectives, and that you may still wish to approve an overall compromise package. Except that even when the US negotiators met, or almost met, their brief on the UN budget, and a binding budget was agreed by them under the UN Charter, which is a Treaty, the House blithely ignored the result. Should State have gone to a federal judge quoting the Migratory Birds ruling?

My bigger problem comes from Harry Niska's post. If he is right, how can any Government negotiate in good faith with the USA? As this blog shows graphically, the "US Constitution" in its impact on day to day life is open to rolling reinterpetation. Today's acceptable interpretation may, given the appointment of enough "transcendentalists" (an invention of mine to avoid entering into current private US debate) to the Supreme Court, be radically overturned. Are treaties in any way protected from this retrospective action? Most treaties by their nature involve the trading of favours, and other countries, when told that the US Senate has approved a treaty, and the administration has duly ratified it or acceded to it, will be bound to deliver their part of the bargain. Apparently the US, based on its particular constitution, does not, or at least reserves the right to ignore the implications.

Of course states can withdraw from (most) Treaties - although there is no provision for so doing in the European Union treaties, as I understand them - and many have explicit procedures for doing so. Again that is not my concern. It is the apparently casual inability of the US system to live up to its treaty obligations in many areas (ask the Canadians about lumber) which worries me, and the apparent absence of any mechanism for holding the US (executive or legislature) to those obligations.
2.14.2006 6:33pm
Jason Fliegel (mail):
Juan, I think you can read Justice Holmes's opinion to support the proposition that any treaty negotiated by the executive and approved by the Senate is per se Constitutional, and thus a treaty banning abortion (or free speech, or the right to possess firearms) would be Constitutional. But I think the better reading of Missouri v. Holland is that the need of the country to speak with one voices in matters of foreign relations necessarily impedes on states' rights in a way that makes the Tenth Amendment a special case.
2.14.2006 9:17pm
Kazinski:
I was appalled at the decision at first, but on further though I don't find this particular case too troubling, wrong, but not troubling. The reason is the limited geographic scope of the ordinance. It does block expressing the viewpoint, it only blocks expressing the viewpoint in a demonstrative manner in front of the embassies.

On the topic of whether a treaty can amend the constitution, No, I don't think it can or should. In terms of it amending the law, same answer. Mainly because laws are only made with the consent of the House of Representatives. It does not seem like it would be the aim of the founding fathers to provide the Senate and the President a method of conspiring with foreign powers to thwart the will of the House. If the President signs a treaty and Senate ratifies, then they would need the consent of the House to change any laws that would conflict with the treaty.
2.14.2006 11:14pm
Neal Lang (mail):
If that is seen as a real risk, perhaps all Treaties should also get Supreme Court approval as well - but the Founders didn't write it so.

If fact, the Framers didn't provide that Supreme Court the "authority" to determine the Constitutionality of any law, to wit:
In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. Publius (Alexander Hamilton) Federalist 81

As for honoring our "treaty obligations", for the most-part, it would seem that many of our international "treaty partners" don't lose a lot of sleep over keeping their word on agreements that don't suit the national self-interests. I suppose one of the benefits of being the World's sole "Super Power" is that one can define its treaty obligations anyway that it pleases, and any treaty partner would have to "like it or lump it!" Of course, we go out of way, many times against our National interest to keep our word.
2.15.2006 10:17am
Neal Lang (mail):
Neal's Louisiana Purchase reference is tantalisingly parallel to the US problems with UN budgets: you send your negotiators off with a mandate, but recognise that they may only meet some of the detailed objectives, and that you may still wish to approve an overall compromise package. Except that even when the US negotiators met, or almost met, their brief on the UN budget, and a binding budget was agreed by them under the UN Charter, which is a Treaty, the House blithely ignored the result. Should State have gone to a federal judge quoting the Migratory Birds ruling?

Of course, the US negotiators should be charged with seeing that the treaty meets, at a minimum, a standard of Constitutionality. Beyond that, the US negotiators presumably would be bound by whatever Foreign Policy objectives the government (Executive and Congress) wishes to achieve. Most international treaties are related to "trade". Inasmuch as the US is the World's biggest market, our "trading partners" are generally anxious to accommodate us.

In the case of the UN budget and the US "dues", the obligation must be related to some sort "value for payment". Because the UN is out of control, and generally thwarts US "foreign policy" objectives, only a masochist would continue to pay for being "beat over the head". Obviously, I we are going to finance that outfit, we should expect some sort of "quid pro quo" for our money. Congress' "due deligence" with regards to the payment of our UN "dues" should be applauded and encouraged.
How does the US system ensure that US formal international obligations constitutionally entered into are not subverted by line item wrangling in the House (which the Founders possibly intentionally kept out of treaty matters) or passing fads in legal interpretation of the Constitution. "Treaties are not for Christmas..."

With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them... .

The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. From: Publius (Alexander Hamilton - Federalist 75

Obviously the Framers viewed international treaty making (foreign relations) a "sovereign power" related to the Executive Branch, similar to the appointment of Federal Judges and other Federal officers. Additionally, they view the Senate, unlike the House of Representatives much like a "council" to the President, hence the Senate's "advice and consent" function.
2.15.2006 12:39pm
Harry Niska (mail):
Well, Tom, I guess it comes down to a question of priority. I believe that following the Constitution is the paramount priority, since I believe the Constitution is binding supreme law of the United States, and the United States government acts ultra vires when it does things prohibited by the Constitution. I agree with you that holding the Constitution to rolling reinterpretation is a problem for our treaty partners, and I guess that is just one more reason to reject an evolving constitution. But I think the danger of evolving comes more from the idea that a treaty can somehow supercede the Constitution or even that a treaty obligation, if the penalties are set high enough, can become the pretext for overcoming what would otherwise be a constitutional violation.
2.15.2006 1:03pm