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Rethinking the
Constitution–treaty
relationship
Remy Z. Levin and Paul Chen*
An overwhelming consensus exists regarding the relationship between treaties and the
Constitution—namely, that the substantive limitations which apply to any action by the federal
government, such as those enumerated in the Bill of Rights or those imposed on Congress
in article I, section 9, apply to the treaty power; and that the Constitution is, consequently,
absolutely supreme to treaties. Although this consensus view has elicited little debate in the
last half-century, we believe it is flawed, both conceptually as well as based on the historical record. In this article we defend this assertion and also propose a different model for
understanding the Constitution-treaty relationship, one we believe is more accurate—that
of “mutual adjustment” between treaties and the Constitution. We first examine the background of the consensus view, discuss its theoretical problems, and then propose and defend
our alternative view. We then discuss some of the historical examples that bolster our theoretical claims, most notably those that involve discrimination among ports of states, extradition,
Congress’s authority to define piracy, and the application of due process rights to US citizens
prosecuted for crimes committed while outside of the US.
I write separately, however, to call attention to the defects in the Court’s decision to place
weight on foreign laws. . . . The Court’s suggestion that these sources are relevant to the
constitutional question finds little support in our precedents. . . .1
Among the most contentious debates in constitutional law today is the dispute over
the proper degree to which international law norms should be incorporated into
constitutional interpretation. Those who seek to minimize, or even eliminate, such
incorporation often cite the lack of judicial precedent for such practice, as illustrated
in the recent debate over the Court’s Eighth Amendment jurisprudence, from which
* Remy Z. Levin is an undergraduate at Western Washington University. Email: [email protected].
Paul Chen is Associate Professor of Political Science at Western Washington University. Email: paul.
[email protected]. The authors thank Stephen L. Wasby for his helpful comments on a draft of our paper.
1
Atkins v. Virginia, 536 U.S. 304, 322 (2002) (Rehnquist, C.J, dissenting).
I•CON (2012), Vol. 10 No. 1, 242–260
doi: 10.1093/icon/mor084
Rethinking the Constitution–treaty relationship 243
the above quotation is drawn. The Constitution, they say, has always belonged quintessentially to the American people,2 and the incorporation of the laws of other nations
or the norms of the international community at large, besides its inherent egregiousness, also lacks historical support.
In this debate both opponents and proponents of international law norm incorporation have largely ignored the role of treaties in this process, even though treaties have
historically served as the primary medium for interaction between our laws and the
laws of other nations. This neglect can undoubtedly be attributed to the overwhelming consensus that exists in the legal community regarding the relationship between
treaties and the Constitution, namely, that the substantive limitations which apply to
any action by the federal government, such as those enumerated in the Bill of Rights
or those imposed on Congress in article I, section 9, apply to the treaty power; and
that the Constitution is, consequently, absolutely supreme to treaties. On this view,
the treaty power can never “[extend] so far as to authorize what the Constitution
forbids.”3
The intent of this article is to argue that this consensus view is false, and that the
Constitution–treaty relationship is more accurately characterized as a process of
“mutual adjustment” between treaties and the Constitution, rather than by the
supremacy of the Constitution over treaties. In other words, we argue that while treaties
have often been adjusted, interpreted, or changed in order to accommodate incompatible constitutional provisions, the reverse is also true—substantive constitutional
provisions have been interpreted or adjusted to accommodate incompatible treaty
provisions.
In the next section, we examine the background of the consensus view, discuss
its theoretical problems, and defend our alternative view. In section 2 we discuss the
historical examples that bolster our theoretical claims, most notably those involving
the constitutional prohibition on discriminating among ports of states, extradition,
Congress’s authority to define piracy, and the application of due process rights to US
citizens prosecuted for crimes committed while outside of the US.
1. The Consensus view: Background, problems, and
alternatives
1.1. The consensus view: Background
The text of the Constitution does not impose any explicit limitations on the scope of
the treaty power. Rather, the Constitution simply vests the power to make treaties in
2
3
See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 868–869, n. 4 (1988) (Scalia, J., dissenting) (“We must
never forget that it is a Constitution for the United States of America that we are expounding . . . where
there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the
Constitution.”).
Geofroy v. Riggs, 133 U.S. 258, 267 (1890).
244 I•CON 10 (2012), 242–260
the president with the single procedural safeguard of requiring a two-thirds majority
in the Senate to approve the treaty.4 Nevertheless, since early in our nation’s history
there has been widespread agreement that the Constitution is absolutely supreme
over treaties, and that certain limitations on the treaty power are implied by this
supremacy. Though the exact scope and nature of the specific limitations on the treaty
power implied by this doctrine are disputed, a typical list generally includes those substantive limitations that apply to any action by the federal government, such as those
enumerated in the Bill of Rights or imposed on Congress in article I, section 9;5 those
arising from principles of federalism6 or separation of powers;7 and those based on the
subject matter of treaties (e.g., that treaties deal only with “matters of international
concern”).8 Some prominent commentators have even sought to restrict the treaty
power to those arenas which Congress cannot reach through the legislative process,
reasoning that since the House of Representatives is excluded from the treaty-making
process, a treaty could not achieve that which would typically require the House’s
assent in its absence.9
Among these various potential limitations on the treaty power the least controversial
are those arising from substantive restrictions on the federal government in the
Constitution.10 We shall call this adherence to the position that the substantive limitations do, in fact, restrict the treaty power the “consensus view.” Note that our definition
of the consensus view does not touch upon the relationship between possible limitations
imposed by structural considerations, such as federalism or separation of powers principles, and the treaty power. Proponents of the consensus view ground their arguments
in both precedent and theory. In terms of historical precedent, commentators past and
U.S. Const., art. II, §2.
See Restatement (Third) of Foreign Relations Law of the United States §302(2) & cmt. b (1987) (“Treaties
and other international agreements are subject to the prohibitions of the Bill of Rights and other
restraints on federal power . . . ”) [hereinafter Restatement (Third)].
6
The precise nature of these limitations is a subject of much controversy. Cf. David M. Golove, TreatyMaking and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich.
L. Rev. 1075 (2000); Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390
(1998).
7
Louis Henkin, Foreign Affairs and the United States Constitution 194–196 (2d ed. 1996).
8
Id. at 197. See also Geofroy v. Riggs, supra note 3, at 267 (“[W]ith these exceptions, it is not perceived
that there is any limit to the questions which can be adjusted touching any matter which is properly the
subject of negotiation with a foreign country.”).
9
Most notably, Thomas Jefferson expressed this view in his influential Manual of Parliamentary Practice
(§ LII); reprinted widely: “By the general power to make treaties, the Constitution must have intended . . .
to except those subjects of legislation in which it gave a participation to the House of Representatives.”
It is, however, generally agreed today that this limitation does not apply to the treaty power. See Henkin,
supra note 7, at 194–195.
10
Golove, supra note 6, at 1083 (“It has been understood from the beginning . . . that treaties, like all other
governmental acts, are subject to the Constitution. This means that a provision in a treaty that contravenes
any of the specific prohibitions on governmental conduct contained in the Bill of Rights, the Fourteenth
Amendment, or elsewhere is unconstitutional and void as a matter of domestic law. This much is common
ground.” [emphasis added]).
4
5
Rethinking the Constitution–treaty relationship 245
present,11 numerous Supreme Court pronouncements,12 and various constitutional
actors, including the treaty negotiators themselves,13 have almost uniformly supported
such limitations. Conceptually, proponents of the consensus view ground their arguments on a relatively short collection of theses. Primary among these is the claim that
since the treaty power is itself based on the Constitution, it cannot possibly trump
the Constitution.14 Constitutional supremacy over treaties is also commonly inferred
from the following: (a) the well-established subsequent-in-time rule, by which more
recent federal statutes, themselves undoubtedly subject to the Constitution, trump
older treaty provisions with which they are in conflict;15 (b) the jurisdiction granted to
federal courts, a branch of government undoubtedly subject to the Constitution, over
cases in which “is drawn in question the validity of a treaty”;16 and (c) the presumed
intent of the framers to create a lasting charter whose provisions could not be overridden by such irregular means as international agreements.17
1.2. The consensus view: Problems
Opponents of the consensus view—i.e., those who believe that the Constitution does
not always trump treaties—have typically defaulted to the somewhat cryptic language of the supremacy clause to defend their thesis. The supremacy clause reads:
See, e.g., Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America
(1880) (“The Constitution itself never yields to treaty or enactment. . . .”); Charles Henry Butler, The
Treaty Making Power of the United States, 1 at 413–415 (1902); Henry St. George Tucker, Limitations on
the Treaty Power under the Constitution of the United States, 4–55 (1915); Restatement (Third), supra note 5;
Golove, supra note 6; Henkin, supra note 7, at 187 (“The prohibitions set forth in Article 1, section 9 . . .
would doubtless be held to apply to treaties as well. . . . Treaties, surely, are also subject to the Bill of
Rights.”).
12
See, e.g., Reid v. Covert, 354 U.S. 1, 16–17 (1957) (“[N]o 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.”); Geofroy v. Riggs, supra note 3; The Cherokee Tobacco, 78 U.S. 616, 620–621 (1871)
(“It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation
of that instrument.”).
13
See, e.g., International Covenant on Civil and Political Rights: Hearing Before the Senate Comm. on Foreign
Relations, 102d Cong. 102-478(1991) (statement of Richard Schifter, Assistant Secretary of State)
(“It is axiomatic that the United States cannot agree in a treaty to an unconstitutional obligation”); Tucker,
supra note 11.
14
See, e.g., 29 Annals of Congress 531–532 (1816) (statement of John C. Calhoun) (“Most certainly all
grants of power under the Constitution must be controlled by that instrument; for, having their existence
from it, they must of necessity assume that form which the Constitution has imposed.”).
15
See Reid v. Covert, supra note 12, at 18 (“It would be completely anomalous to say that a treaty need not
comply with the Constitution when such an agreement can be overridden by a statute that must conform
to that instrument”); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“if there be any conflict between
the stipulations of the treaty and the requirements of the law, the latter must control”); The Head Money
Cases, 112 U.S. 580, 598–599 (1884).
16
Judiciary Act of 1789, Ch. 20, 1 Stat. 73, 85–87.
17
Reid v. Covert, supra note 12, at 17 (footnote omitted) (“It would be manifestly contrary to the objectives
of those who created the Constitution . . . to construe Article VI as permitting the United States to exercise
power under an international agreement without observing constitutional prohibitions. In effect, such
construction would permit amendment of that document in a manner not sanctioned by Article V.”).
11
246 I•CON 10 (2012), 242–260
“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. . .”18 The language seems to
imply different sources of authority for federal laws and for treaties: while laws are
made “in Pursuance” of the Constitution, treaties are made “under the Authority of
the United States.”19 This proposition gains further credence from its affinity with the
doctrine of inherent powers, most commonly associated with the landmark case of
United States v. Curtiss-Wright Export Corp.20 This doctrine purports to find an extraconstitutional source of power for the actions of the federal government in the realm
of foreign affairs.21 Although controversial,22 the decision in Curtiss-Wright remains
good law. It is but a short logical step from recognizing a separate source of authority
other than the Constitution for treaties to asserting that treaties, by drawing on this
separate source of authority, may sometimes trump the Constitution.
Opposition to the consensus view may also be predicated on other grounds. Many
commentators acknowledge that in the case of a serious national emergency that
required resolution through ratification of a facially unconstitutional treaty—in the
event, for instance, that the United States lost a war and was forced to conclude a
peace treaty with unfavorable conditions—the treaty power could lawfully contravene the Constitution.23 The Constitution, on this view, was not intended to be a suicide pact, and national preservation, which is certainly required for the preservation
of the Constitution itself, would trump any limitations imposed by the Constitution on
the exercise of the treaty power. Although such arguments are based on somewhat
far-fetched hypotheticals24 and have not been used to assert the validity of a treaty
trumping the Constitution in less extreme situations, they do serve to highlight a crucial weakness in the consensus view: namely, that the application of any constitutional principle in the realm of foreign affairs is much more subject to the vagaries
of the national interest than proponents of the consensus view would like to admit.
In the dangerous world of nation-state anarchy, need often overrides, or at least
changes, principle.
A further difficulty with the consensus view is that its most authoritative articulations,
i.e. in Supreme Court decisions, have been but dicta. Although these dicta are
U.S. Const., art. VI, § 2.
Id. An oft-cited instance of this argument appears in the seminal case Missouri v. Holland, 252 U.S. 416,
433 (1920).
20
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
21
Id. at 315–319.
22
In particular, Sutherland’s historical analysis, which is the centerpiece of his argument for inherent powers
stemming from an unbroken chain of national sovereignty, has been criticized. See, e.g., David M. Levitan,
The Foreign Relations Power: An Analysis of Mr. Sutherland’s Theory, 55 Yale L.J. 467 (1946).
23
See, e.g., Quincy Wright, The Constitutionality of Treaties, 13 Am. J. Int’l L. 242, 250 (1919) (“There are
probably no limitations which could not be transcended in case of necessity. . . . A treaty, although manifestly violating the Constitution if necessary to secure peace, would, like revolution or intervention, be
justified by its ‘success’ in preventing a worse situation.”).
24
These hypotheticals only seem far-fetched today, when the United States is in such a dominant position
militarily in the world. But this was not always the case, and may not be the case in the future.
18
19
Rethinking the Constitution–treaty relationship 247
extant25 and considered to be definitive by many,26 they fall short of establishing the
consensus view as an intransigent constitutional doctrine. It is perhaps also worth
noting that Black’s opinion in Reid v. Covert, in which the dictum that is considered
most authoritative on the subject appears, was signed by only a plurality of justices.
While these arguments serve to undermine the consensus view to a degree, they
fail to overturn it altogether, for the weight of precedent and established opinion in
this area is simply too great. There is, however, a more fundamental problem with the
consensus view, one that we believe demands its reexamination and, potentially, its
abandonment.
1.3. Toward a theory of mutual adjustment
The implicit assumption behind the doctrine of absolute constitutional supremacy
over treaties (which, incidentally, the critiques of it thus far enunciated share) is
that “supremacy” in this context entails the complete override of one instrument by
the other. In other words, for the Constitution to “trump” a treaty it is necessary for
the Constitution to cancel out the offending provision of the treaty—the two cannot validly exist at the same time. The same is true, conversely, of a treaty trumping
the Constitution. According to this view, any such occurrence must inevitably lead
to constitutional destruction, because two supreme authorities cannot coexist, and to
establish the supremacy of a treaty over the Constitution in any instance would be to
destroy the supremacy of the Constitution. This is precisely the sentiment expressed
by many prominent commentators on the matter.27 This assumption, we argue, is
faulty. A much more accurate model for the relationship between treaties and the
Constitution is that of mutual adjustment. While treaties have often been adjusted,
interpreted, or changed in order to accommodate incompatible constitutional provisions,28 the reverse is also true—constitutional provisions throughout the years have
been interpreted or adjusted to accommodate treaty provisions. This has done little to
destroy the status of the Constitution, as is demonstrated by the continuing rhetorical
dominance of the consensus view.
See, e.g., Covert v. Reid, supra note 12; Geofroy v. Riggs, supra note 3.
See, e.g., 1 Laurence H. Tribe, American Constitutional Law 647 n.19 (3d ed. 2000) (“On this point, the
plurality opinion in Covert is widely and properly regarded as authoritative”); Henkin, supra note 7,
at 187 (“In 1957, Justice Black laid the issue to rest”).
27
See, e.g., Letter from Thomas Jefferson to Wilson Cary Nicholas (Sept. 7, 1803), in The Writings of Thomas
Jefferson vol. 8, 247 n.1 (Paul Leicester Ford ed., 1897) (“I say the same as to the opinion of those who
consider the grant of the treaty making power boundless. If it is, then we have no Constitution.”); Robert T.
Devlin, The Treaty Power Under the Constitution of the United States 141 (1908) (“[I]f there ever appears
a clear case in which a treaty conflicts with the Constitution, then either the Constitution or the treaty
must govern.”).
28
See, e.g., Peter J. Spiro, Treaties, International Law and Constitutional Rights, 55 Stan. L. Rev. 1999, 2018
(2000) (“Treaty practice continues to be consistent with Reid v. Covert. Where accession to an international treaty regime poses a plain downward departure from internal interpretations of individual
rights, the United States has rejected or qualified its participation.”) .
25
26
248 I•CON 10 (2012), 242–260
Two main lines of evidence support this alternative view. The first is drawn from
the overarching pattern of Supreme Court jurisprudence in this area. Of the hundreds
of treaties ratified by the United States, not one has been struck down by the Supreme
Court as unconstitutional. Although this fact is often explained by citing the treatymakers’ self-policing regarding the constitutional validity of the treaties they are
entering into,29 such explanations are unconvincing when one considers the large
number of treaties concluded throughout our history and the range of controversial
topics that they have often dealt with. That the Supreme Court failed to use its newly
established power of judicial review over federal legislation for over forty years after
its articulation in Marbury v. Madison30 is suggestive of the political and institutional
constraints within which the Court was operating at the time.31 Likewise, the complete lack of examples of the Court striking down treaties as unconstitutional is highly
suggestive of an underlying agenda by the Court, one directed at avoiding conflict
between the important foreign affairs functions of the federal government and potentially
incompatible constitutional provisions.32
The second line of evidence is the detailed historical record of actions taken by the
Court and by other constitutional actors in the field. There are numerous historical
examples of constitutional provisions being adjusted to accommodate treaties, most
typically through the interpretation or reinterpretation of those provisions. The
constitutional provisions in question range from minor ones (such as Congress’s
power to define piracy) to major ones (amendments to the Constitution in the Bill of
Rights). We discuss these examples in section 2.
Before we discuss these specific historical examples, however, we first want to
address a potential weakness with using these cases to support our theory of mutual
adjustment. Most, though not all, of these examples are of instances of the Court,
or another constitutional actor, adjusting the Constitution in light of a treaty when
facing a novel legal question. In such cases our interpretation of the action undertaken is vulnerable to the following critique: that a more plausible portrayal of the
action is that the Court, or other constitutional actor, was merely engaging in normal
constitutional interpretation, i.e. “say[ing] what the law is.”33 In other words, since
we have no prior interpretation with which to compare the Court’s decision in the
example (a control group, so to speak), we cannot be sure that the treaty in question
influenced the interpretation from what it otherwise would have been without the
treaty. Perhaps the ultimate interpretation was simply the most plausible reading of
the constitutional text by the Court.
See, e.g., Henkin, supra note 7, at 187 (“The treaties-makers themselves have thought they were subject
to limitations”); Spiro, supra note 28, at 2017 (“In the wake of Bricker, all relevant constitutional actors
have assimilated the treaty subordination norm.”).
30
Marbury v. Madison, 5 U.S. 137, 177 (1803).
31
See Mark A. Graber, The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of
Judicial Power, 12 Const. Comment. 67 (1995).
32
See Charles Anthony Smith, Credible Commitments and the Early American Supreme Court, 42 Law & Soc’y
Rev. 75 (2008).
33
Marbury v. Madison, supra note 30, at 177.
29
Rethinking the Constitution–treaty relationship 249
A critique of this nature can be leveled against any historical argument. After all, an
immutable feature of historical arguments is their lack of a control group, a fact that
makes the teasing out of causal relationships especially difficult. There are, however,
ways to resist it. To begin with, it is worth noting that the counter-interpretation of
the Court’s actions, namely, that the Court was simply interpreting the Constitution to
the best of its ability when faced with a novel question, is equally susceptible to the
above critique as our interpretation is. It does proponents of the consensus view
no good to criticize our lack of certainty regarding the causal relationship between
the text of a treaty and the interpretation of a constitutional provision, as the same
criticism can be leveled just as effectively to undermine their assertion that a causal
relationship exists between the Court’s sincere motivation to interpret the Constitution
correctly and the eventual interpretation. Consequently, this critique is a wash for
both sides.
Additionally, there is affirmative evidence in favor of our claims regarding the
Court’s motivation to render certain interpretations of constitutional provisions in
the cases below. First, it is clear that the outcomes of all of the following cases significantly furthered the nation’s interests in foreign affairs. It is beyond doubt that this
fact weighed heavily on the minds of the jurists considering the questions at hand,
as demonstrated in the case of extradition.34 Second, one can surmise from the manner in which some decisions where constitutional adjustment took place were later
overturned that constitutional adjustment in light of treaties had, indeed, occurred
in the original decision.35 Such is the case, for instance, with the Court’s overruling of
In re Ross in Reid v. Covert.36 Finally, in some cases, the relevant constitutional actor
itself acknowledged (if only implicitly) the adjustment or override of a constitutional
provision in light of a treaty. Such was the ultimate outcome, for instance, of the
debates over, and implementation of, the treaty to purchase the Louisiana Territory
from France.37
See infra notes 64–65.
In other words, for the Court to indubitably and vehemently reject its prior decision as unconstitutional
entails that the practice established under the prior decision was, in fact, unconstitutional. When there
is evidence that the prior decision established a practice in order to accommodate a treaty provision, it
follows that the original decision likely established an unconstitutional legal regime in light of a treaty.
Even if, however, one does not accept so unadorned a reading of the historical record the Court’s ardent
rejection of the precedent as blatantly unconstitutional should call into question, at least somewhat, the
circumstances of that precedent’s birth, and thereby serve, in such cases as are in question in this article,
as evidence for constitutional adjustment in light of a treaty.
36
Justice Black did not mince words in Reid v. Covert, supra note 12: “The keystone of supporting authorities mustered by the Court’s opinion last June to justify its holding that Art. III, s 2, and the Fifth and
Sixth Amendments did not apply abroad was In re Ross. . . . [T]he Ross case rested, at least in substantial
part, on a fundamental misconception. . . . At best, the Ross case should be left as a relic from a different
era.” Note that although the Court in Reid v. Covert only cited a statute as the basis for the offensive doctrine in Ross, the statute in question was in fact passed to implement the treaty with Japan that was in
question in that case. See In re Ross, 140 U.S. 453 (1891),. at 468–470. For more on this, see section 2.4
of this article.
37
See section 2.1.
34
35
250 I•CON 10 (2012), 242–260
While historical evidence, by its very nature, can never give us absolute certainty,
we believe the examples below sufficiently establish a historical pattern of action by
the Court and other constitutional actors which strongly support our view of mutual
adjustment—namely, that both the Constitution and treaties are interpreted in light
of each other, rather than one “trumping” the other based on its supremacy over the
conflicting document.
2. Historical examples of constitutional adjustment in light of
treaties
In this section we discuss the examples mentioned earlier of constitutional adjustment
in light of treaties. The following examples do not comprise a complete inventory of
such instances. Rather, they are select instances from the wider historical catalogue
of such occurrences that we think best illustrate the points discussed in the preceding
section.
2.1. Discrimination among the ports of states
The first example of constitutional adjustment in light of treaties by the Court occurred
relatively early in its history. In 1803 the United States signed a treaty with France
that would significantly affect the course of North-American history. The Louisiana
Purchase transferred a tremendous mass of land to the United States, effectively doubling the size of the young republic and, by many accounts, setting the country on its
path to becoming a great power. The treaty also raised several novel constitutional
questions that elicited heated debate in Congress.38 Three challenges to the treaty’s
constitutionality were raised during the debates: (1) over the federal government’s
power to acquire territory; (2) over its power to admit new states to the Union; and (3)
over the commercial privileges granted under the treaty to French and Spanish ships
in the ports of the territory (primarily, New Orleans).39
The last issue was seized upon by opponents of the treaty (chiefly from New England) who
claimed that the granting of such favorable terms to foreign vessels in the ports of
the newly acquired territory amounted to discrimination by the federal government
among the ports of different states, which the Constitution explicitly prohibits.40
See Everett S. Brown, The Constitutional History of the Louisiana Purchase 62-83 (1920).
Article 7 of the treaty provided that French and Spanish vessels “should be admitted during the space of
twelve years in the port of New Orleans . . . in the same manner as the ships of the United States coming
directly from France or Spain . . . without being subject to any other greater duty on merchandize, or
other or greater tonnage than that paid by the citizens of the United States.” Id. at 74. All other foreign
ships were required to pay a duty of forty-four cents on tonnage at the time in all ports of the US. Id. at 75.
40
U.S. Const., art. I, § 9, cl. 6: “No Preference shall be given by any Regulation of Commerce or Revenue to
the Ports of one State over those of another. . . .”
38
39
Rethinking the Constitution–treaty relationship 251
Some even argued that for the treaty to be constitutional the Constitution would need
to be amended.41 While supporters of the treaty granted that this would be the case
if the port in question was situated within a state, they argued that since the area in
question was a territory and not a state, Congress could govern it as it wished, as the
constitution did not apply to territories in the same way that it did to states.42 There
was also no reason to believe, supporters argued, that the newly acquired territory
would become a state before the terms of the treaty expired.43 History would prove
the supporters wrong on this last point.44 Nevertheless, at the time of the debates their
arguments won the day, and the treaty was approved by the Senate on October 20,
1803. On March 10, 1804, at a formal ceremony in St. Louis, ownership of the territory
was transferred from France to the United States.
The debates in Congress over the Louisiana Purchase, and the ultimate ratification
of the treaty with France, provide us with an early and decisive example of constitutional adjustment in light of a treaty—indeed, two examples. Not only was the
constitutional provision in question interpreted to accommodate a treaty requirement (the interpretation of article I, section 9, clause 6 as applying only to states, not
territories), but this same provision was violated eight years later in order to accommodate an incompatible treaty provision (as even proponents of the interpretation
would have to admit). The existence of two of the factors identified in section 1.3 of
this article as suggestive of constitutional adjustment bolsters this assertion: first, the
strong foreign-relations interest to which the constitutional actor was reacting;45 and
second, acknowledgement by the constitutional actors that constitutional adjustment
was indeed taking place. This acknowledgment occurred, even if only implicitly and
after the fact, when an action that was deemed unconstitutional by all in Congress
during the controversy was later condoned to accommodate a treaty.
2.2. Extradition
Extradition agreements are among the oldest international compacts entered into by
the United States. As early as 1788 the US signed a consular convention with France
requiring it to surrender deserting sailors to the other country. The Jay Treaty,
concluded with Great Britain in 1794, included among its novelties the first fully
43
44
See Brown, supra note 38, at 75 (citing the opinion of Senator John Quincy Adams).
Id. at 75–78.
Id. at 76 (citing the opinion of Congressman Elliot of Vermont).
Louisiana was admitted to the Union in 1812, four years before article 7 of the treaty expired. Interestingly,
the issue of the differential commercial treatment of French and Spanish ships was never raised during
the debate over its admission to the Union.
45
The benefits accruing to the US from the Louisiana Purchase were so great that even Thomas Jefferson,
who did not believe that the President and Senate had the authority under the Constitution to conclude
such a treaty, was willing to accept this constitutional difficulty in order to conclude the treaty. See, e.g.,
Letter from Thomas Jefferson to John Breckenridge (Aug. 12, 1803), in The Writings of Thomas Jefferson
vol. 10, 407 (Paul Leicester Ford ed., 1897).
41
42
252 I•CON 10 (2012), 242–260
developed extradition provision agreed to by the US.46 Although extraditions were an
uncommon occurrence through the late eighteenth and early nineteenth centuries,
their numbers have steadily increased since the first federal extradition statute was
passed in 1848,47 and have increased even more dramatically since the 1970s.48
Both foreign nationals and US citizens are extraditable under US law.49 Although
extradition law has evolved alongside criminal law, few of the protections afforded
criminal defendants are granted to citizens facing extradition. The scope of absent
protections in extradition hearings when compared to criminal proceedings is truly
staggering: these include protections stemming from the Fourth Amendment (the
Federal Rules of Evidence, for instance, are not applicable to extradition proceedings,50
and the government is able to obtain a warrant from a US court for the provisional
arrest of a fugitive without a prior evidentiary showing of probable cause);51 the Fifth
Amendment (the Federal Rules of Criminal Procedure do not apply to extradition hearings52 and procedural deficiencies in the country to which extradition is undertaken do
not bar extradition);53 the Sixth Amendment (the guarantee of a speedy trial does not
Article 27 of the treaty committed the parties to “deliver up to justice all persons who, being charged
with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any
of the countries of the other, provided that this shall only be done on such evidence of criminality, as,
according to the laws of the place, where the fugitive or person so charged shall be found, would justify
his apprehension and commitment for trial, if the offence had there been committed.” See Treaty of Amity,
Commerce and Navigation Between His Britannic Majesty and the United States of America, art. 27, Nov. 19,
1794, 8 Stat. 116, 129, T.S. 105.
47
The U.S. government extradited no one between the beginning of the nineteenth century and 1842.
Thereafter, extradition remained relatively uncommon until the 1970s. See Ethan A. Nadelman,
The Evolution of United States Involvement in the International Rendition of Fugitive Criminals, 25 N.Y.U. J.
Int’l L. & Pol. 813, 817–818 (1993).
48
See id. (“By the late 1970s, however, the number had risen to about 150. In 1982, it totaled 350, and by
the late 1980s, the US government was receiving more than 200 requests per year and sending out more
than 300.”) [footnotes omitted].
49
Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936).
50
See Fed. R. Evid. 1101(d)(3); Melia v. United States, 667 F.2d 300 (2d Cir. 1981); Merino v. United States
Marshal, 326 F.2d 5 (9th Cir. 1963).
51
See Lis Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural
Protections to Fugitives Fighting Extradition From the United States, 19 Mich. J. Int’l L. 729, 734, 750–751
(1998) (“The government’s ability to obtain a warrant from a U.S. court for the provisional arrest of an
international fugitive in an extradition case without being required to make a prior evidentiary showing
of probable cause has been a prominent feature of U.S. extradition law. In domestic criminal procedure, by
contrast, there has been perhaps no more important constitutional safeguard than [this requirement] . . .”).
52
Fed. R. Crim. P. 54(b)(5).
53
See Neely v. Henkel, 180 U.S. 109, 122–123 (1901) (“It is contended that the act of June 6th, 1900, is
unconstitutional and void in that it does not secure to the accused, when surrendered to a foreign country
for trial in its tribunals, all of the rights, privileges, and immunities that are guaranteed by the Constitution
to persons charged with the commission in this country of crime. . . . The answer to this suggestion is that
those provisions have no relation to crimes committed without the jurisdiction of the United States against
the laws of a foreign country. [W]hen tried in the country to which he is sent, he is secured by the same
act ‘a fair and impartial trial,’—not necessarily a trial according to the mode prescribed by this country
for crimes committed against its laws, but a trial according to the modes established in the country where
the crime was committed . . .”); Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (“We are bound by the
existence of an extradition treaty to assume that the trial [in the receiving country] will be fair”).
46
Rethinking the Constitution–treaty relationship 253
apply to an extradition hearing,54 and courts have held that no right exists to discovery
or cross-examination of witnesses testifying at the extradition hearing);55 and the
Eighth Amendment (the fact that the burden of evidence for showing that an arrestee
is not a flight risk, and therefore eligible for release on bail, is traditionally placed on the
arrestee in extradition cases, and not on the government, as in criminal cases, has led to
“a nearly insurmountable presumption that the arrestee should remain detained until
the extradition matter is litigated to its conclusion, even if the arrestee can satisfy the
court that the arrestee poses no risk of flight,”56 a presumption which may violate the
Eighth Amendment’s prohibition against the setting of excessive bail).57
Courts have managed to deny these protections to individuals facing extradition by
distinguishing between extradition proceedings and criminal proceedings, in essence
asserting that extradition proceedings are not criminal in nature, and therefore do
not merit the same protections afforded in criminal proceedings.58 A permutation
of this argument is the claim that since extradition does not involve prosecution by
US authorities the extradited does not deserve the protections that such a prosecution would entail.59 Several difficulties attend these positions, however. First, even a
cursory examination of extradition proceedings is enough to raise doubts about the
distinction’s tenability. This is especially evident when one considers the strong similarities in practice between extradition proceedings and criminal proceedings,60 as
well as cases in which extradition is undertaken to countries that convict in absentia61
or have especially weak procedural safeguards. In such cases the outcome of the
extradition hearing basically determines, for all intents and purposes, the fate of the
extradited party, just as effectively as a criminal proceeding would; and the assertion
that US authorities are not involved in the prosecution proper rings hollow at best. Second,
the courts have implicitly acknowledged that relevant rights are affected in the process
of international extradition by holding that a treaty is necessarily required to extradite
a citizen and that extradition without a treaty is unconstitutional62 (a requirement
56
57
58
54
55
59
60
61
62
See Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1976).
See Messina v. United States, 728 F.2d 77 (2d Cir. 1984).
Wiehl, supra note 51, at 735.
United States v. Messina, 566 F. Supp. 740, 745 (E.D.N.Y. 1983).
See, e.g., Neely v. Henkel, supra note 53; Fed. R. Evid. 1101 (advisory committee note) (“Extradition and
rendition proceedings are governed in detail by statute. . . . They are essentially administrative in character”); Romeo v. Roache, 820 F.2d 540, 543–544 (1st Cir. 1987) (“Extradition proceedings. . .are generally not considered criminal prosecutions”) [emphasis in original]; In re De Giacomo, 7 F. Cas. 366, 370
(C.C.S.D.N.Y. 1874) (No. 3747) (finding that “extradition cannot properly be regarded as ‘punishment’”).
See, e.g., Benson v. McMahon, 127 U.S. 457, 464 (1888) (“We are not sitting in this court on the trial of the
prisoner, with power to pronounce him guilty and punish him or declare him innocent and acquit him”).
For a description of the similarities between extradition proceedings and criminal proceedings in practice,
see John G. Kester, Some Myths of United States Extradition Law, 76 Geo. L. J. 1441, 1445-1446 (1988).
Id. at 1446.
See, e.g., Valentine v. United States, supra note 49; United States v. Davis, 25 F. Cas. 786, 788 (C.C.D.Mass.
1837) (No. 14,932) (reporter’s note) (Justice Story expressing the opinion that federal courts lack the
power to extradite without a treaty); Ex parte Dos Santos, 7 F. Cas. 949 (C.C.D.Va. 1835) (No. 4,016);
Nadelman, supra note 47, at 815 (“The U.S. government, unlike most other governments, lacks the legal
authority . . . to extradite anyone in the absence of an extradition treaty . . .”).
254 I•CON 10 (2012), 242–260
which was incorporated into the first federal extradition statute and every federal
extradition statute thereafter).63 Third, there are compelling reasons to believe that
the crucial national interests in extradition—those of law enforcement and international relations—are the true drivers behind the courts’ upholding the process of
extradition as currently formulated, rather than the esoteric legal distinction between
it and criminal proceedings. The Supreme Court has cited the necessity of honoring
international treaties in its justification of extradition64 and many commentators have
observed the tale-tell signs of realpolitik considerations in the way extradition is carried
out.65
Since the legal distinction between criminal proceedings and extradition proceedings
is fragile at best, and the process and consequences of both are so similar in practice,
one must conclude that if certain rights and their consequent procedural safeguards
are applicable to one type of proceeding they should also be applicable to the other.
The fact that they are not seems to show that these rights have been constructed
so as to exclude an entire category of otherwise applicable cases from their domain.
Although this construction occurred in the process of interpretation of the rights in
question rather than after the fact of interpretation, thus substituting an initial interpretation for a new one, this does not mean that the forces affecting the construction
did not “change” the constitutional provisions in question in light of incompatible
treaty provisions. On the contrary, the forces shaping the initial interpretation of any
constitutional provision, or its interpretation in the face of an open question, play a
monumental, if somewhat hidden, role in the shaping of that provision, and so must
be said to change it, if only from its protean form as words on a page to its mature form
as law in the courtroom. In the case of international extradition the primary forces
See Act of August 12, 1848, 9 Stat. 302 ß 1 (1848); 18 U.S.C. ß 3184.
See, e.g., Glucksman v. Henkel, supra note 53, at 512 (citing Griffin v. Shine, 187 U.S. 181, 184 (1902)
and Pierce v. Creecy, 210 U.S. 387, 485 (1907)) (“[I]f there is presented, even in somewhat untechnical
form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he
should be tried, good faith to the demanding government requires his surrender.”) [emphasis added].
65
See, e.g., Spiro, supra note 28, at 2008 (“These reciprocal arrangements posed significant benefits for U.S.
law enforcement, and were considered to be in the crucial national interest. Otherwise applicable individual rights were submerged in the face of international imperatives”) [footnote omitted]; Wiehl, supra note
51, at 795 (“[T]he government’s interests in its relations with its extradition treaty partners extend well
beyond securing reciprocal arrests of U.S. fugitives found abroad and enforcing domestic law. . . . [T]he
United States’ compliance with its extradition treaties bears directly on the reliability of the United States
as a treaty partner in other areas as well, including international security treaties. The government’s
interests in its international treaty relations and its stewardship of foreign affairs generally justify considerable deference from the courts to the government’s needs and its views in extradition matters . . .”);
Kester, supra note 60, at 1487 (“Extradition candidates can become unattractive pawns in global geopolitics. If a foreign country wants a United States resident badly, and that country can or does provide
something else—say, a military base or a trade agreement—that the United States would like to have, one
individual . . . may be a cheap price to pay, in the minds of United States diplomats, to help secure a more
important end.”); John T. Parry, The Lost History of International Extradition Litigation, 43 Va. J. Int’l L. 93,
96 (2002) (“In practice, however, the Secretary rarely exercises discretion, perhaps because the needs of
diplomacy outweigh the concerns of individuals who may have committed crimes.”) [footnote omitted].
63
64
Rethinking the Constitution–treaty relationship 255
shaping the interpretation of the various provisions affected were treaties and the
demands of international relations, as demonstrated by the Court’s pronouncements
and the chronology of events in question. This demonstrates that these constitutional
provisions were, therefore, effectively adjusted in light of extradition treaties.
2.3. Defining piracy
Piracy has been a persistent worldwide problem from antiquity to the present day.
The US has a long history of dealing with piracy: the first engagement of the
re-commissioned US Navy after 1794 was with Mediterranean pirates in the first
Barbary war. During prohibition, “hi-jackets” preyed upon the rum ships operating
just outside the contemporary three-mile boundary of US territorial waters.66 More
recently, worldwide incidences of piracy have been on the rise, most notably in the
waters of Southeast Asia and off the horn of Africa,67 and the US has been involved
in international efforts to curb the problem.
Coupled with the persistent problem of piracy has been the persistent problem of
defining it. On the national level, the US has struggled with defining piracy almost
since the founding.68 Article I, section 8 of the Constitution provides that Congress
shall have the power to “define and punish Piracies and Felonies committed on the
high Seas. . . .” Congress did so in the Federal Crimes Act of 1790, five sections of
which were devoted to the subject. The difficulty of defining piracy, however, resulted
in some “unfortunate” legal language.69 Section 8 of the Act, for instance, contained
three different classes of offenders, all of which were designated “pirates.”70 The Act
was subsequently challenged in the federal courts, and in United States v. Palmer71 the
Supreme Court significantly narrowed the Act’s scope by limiting its application to
crimes either perpetrated by American nationals or against American nationals or
ships.72 Although the Court did back down from this position in its next piracy case,
See Edwin D. Dickinson, Is the Crime of Piracy Obsolete?, 38 Harv. L. Rev. 334, 334 (1925) [hereinafter
Dickinson].
67
See generally International Chamber of Commerce International Maritime Bureau, Piracy and Armed Robbery against Ships, Annual Report (2009).
68
See, e.g., Alfred P. Rubin, The Law of Piracy 127 (1988) (“The difficulties of defining ‘piracy’ became apparent
when the first Congress attempted to implement these [article I, section 8] provisions by statute. . ..”);
Samuel Pyeatt Menefee, Anti-Piracy Law in the Year of the Ocean: Problems and Opportunity, 5 ILSA J. Int’l &
Comp. L. 309, 310 (1999) (“Definitional problems date back at least as far as the American Civil War,
when the Union deemed operations undertaken by Confederate naval sympathizers to be ‘piratical’ in
nature.”)
69
G. Edward White, The Marshall Court and International Law: The Piracy Cases, 83 Am. J. Int’l L. 727, 731
(1989).
70
Dickinson, supra note 66, at 343.
71
United States v. Palmer, 16 U.S. 610 (1818).
72
White, supra note 69, at 731 (“[T]he Palmer decision, especially with its language indicating that
Congress could not authorize punishment for robberies “on persons within a vessel belonging exclusively
to subjects of a foreign state,” appeared to cripple the federal Government’s power to punish pirates. . .”).
66
256 I•CON 10 (2012), 242–260
United States v. Klintrock,73 Congress in the meantime passed another statute defining
piracy. In the Act of March 3, 1819 the crime of piracy was defined simply “by the law
of nations.”74 It is this vague definition that has been subsequently incorporated, with
minor changes, into contemporary federal law on the matter.75
Internationally, controversies over the definition of piracy are extant.76 Although
article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS),
which adopted the language of article 15 of the 1958 United Nations Convention on the
High Seas almost verbatim, sets out a definition of piracy,77 significant disagreement
persists over the meaning of its language and its application to specific incidences.78
The US signed and ratified the 1958 convention, though ratification of the 1982
UNCLOS has been held up by Congress for decades.79 Many scholars believe, however,
that the 1982 convention codified customary international law, and is therefore binding
on the US.80 At the very least, then, article 15 of the 1958 convention applies domestically in the same way that any duly ratified treaty would, and thus its definition of
piracy has the force of law. It is this definition of piracy by treaty which constitutes
constitutional adjustment in light of a treaty. This is because there are good reasons
to believe that under the original intent and understanding of the piracy clause such
definition of piracy by treaty would be unconstitutional.
A central feature of the constitutional grant of power to Congress to define piracy is
its exclusivity. The framers were clearly concerned that, without the exclusive grant of
this power to Congress, any state might embroil the entire nation in war with a foreign
power through the indiscreet use of piracy convictions against foreign nationals.81 This
was especially likely in the volatile context of the trade wars of the late eighteenth and
early nineteenth centuries. Furthermore, piracy has strongly pejorative connotations,
United States v. Klintrock, 18 U.S. 144 (1820).
Act of Mar. 3, 1819, ch. 77, §5, 3 Stat. 513–514.
75
See 18 U.S.C. 81, § 1651. For an overview of the development of piracy statutes in this country and the
similarities and differences between current statutes and those of the early Republic, see Dickinson, supra
note 66, at 348–350.
76
See, e.g., Menefee, supra note 68, at 310–314; Tina Garmon, International Law of the Sea: Reconciling the
Law of Piracy and Terrorism in the Wake of September 11th, 27 Tul. Mar. L.J. 257, 260–262 (Comment)
(2002).
77
United Nations Convention on the Law of the Sea, 21 I.L.M. 1245, opened for signature Dec. 10, 1982.
78
See Menefee, supra note 68, at 311–313 (“There has been much debate over the language of Article 101
(a) of the Convention on the Law of the Sea. . .”).
79
See Jon M. Van Dyke, The 1982 United Nations Convention on the Law of the Sea, in Ocean and Coastal Law
and Policy 375, 376–381 (Donald C. Baur et al. ed., 2008).
80
Id. But see Menefee, supra note 68, at 313–314 (“[S]cholars remain split as to whether the 1958 and
1982 Convention codified the law on the subject, or whether other crimes continue to constitute piracy
under customary international law. . .”).
81
See The Federalist Papers No. 42, at 265 (James Madison) (in Clinton Rossiter ed., 1961) (“The power
to define and punish piracies and felonies committed on the high seas and offenses against the law of
nations belongs with equal propriety to the general government, and is a still greater improvement on
the Articles of Confederation. These articles contain no provision for the case of offenses against the law
of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy
with foreign nations”).
73
74
Rethinking the Constitution–treaty relationship 257
and accusations of piracy, then and now, are excellent fulminators of international
conflict.82 It is clear, then, that the framers sought to grant the power to define and
punish piracy exclusively to Congress.
Earlier in our history, this exclusivity of the power to define piracy was understood
to place it outside of the scope of the treaty power.83 Today, however, such definition
of piracy by treaty is the norm, and few would argue that the international accords
defining piracy are unconstitutional. The sharp divergence between the views of 1854
and those of 1958, however, deserves some elucidation. While the seemingly minor
nature of the question raised in the context of a large, multilateral convention may
be one such explanation, we contend that another, more plausible, explanation is the
fact that the act of defining piracy has itself changed in significant ways in the process
of negotiating and passing the said accords, and therefore the constitutional provision
granting the power to define piracy has been adjusted to accommodate these treaties.
Attempts at international cooperation have increased sharply in the last century,
as the proliferation of multilateral treaties and inter-governmental organizations such
as the UN and IMF demonstrates. Within this context, the definition of a crime, such as
piracy, through the medium of the multilateral, international agreement, rather than
through individual state action, has been normalized, even routinized, in a way that
would surely have seemed remarkable to the Framers in the eighteenth century. For
a UN convention to define piracy these days is valid because norms about the proper
venue and procedure for defining crimes have shifted, and the act of definition has
been accepted as a requisite component in larger schemes of international cooperation.
Through this shifting of norms the understanding of what a treaty may accomplish
has widened. Because the piracy clause was originally understood to entail a narrower
scope of the legitimate uses of a treaty, the fact that it is currently understood to allow
for a wider scope of such uses strongly suggests that the meaning of the constitutional
provision has changed to accommodate the treaty regime. It is therefore valid to view
this change as an instance of constitutional adjustment in light of a treaty.
2.4. Due process rights of US citizens prosecuted abroad
If there is any example that could serve as an acid test for our mutual adjustment
theory, it is an example where the terms of a treaty would appear to directly conflict
with an express constitutional provision regarding fundamental individual rights,
See Menefee, supra note 68, at 310–311.
See Tucker, supra note 11, at 22 (“It is clear that there may be an unconstitutional treaty, just as there
may be an unconstitutional act of Congress. This point is well illustrated by the treaty negotiated in 1854
at Caracas by the United States minister and the Venezuelan Government, which provided, in its twentyfifth article, that in case a citizen of either country should accept a commission in the service of an enemy
at war with the other country he should be deemed a pirate and so punished. Mr. Marcy, Secretary of
State, promptly repudiated the treaty, which was satisfactory in other respects, upon the ground that
the Constitution provided that Congress should define the crime of piracy and its punishment, and that
it could not be made the subject of a treaty. If the treaty had been ratified, there can be no doubt that the
courts would have sustained Mr. Marcy’s view” [quoting speech by Judge Shackelford Miller]).
82
83
258 I•CON 10 (2012), 242–260
such as those enumerated in the Bill of Rights. In re Ross and its progeny are such
examples, as they involve the Court’s adjudication of the due process rights of US
citizens tried in foreign countries.
In re Ross (1891)84 involved the Court’s review of a petition for a writ of habeas
corpus filed by an American seaman, Ross, who at the time of the petition had been
imprisoned in a New York penitentiary for killing a fellow seaman aboard an American
ship anchored in Yokohama harbor, Japan. After being held in a jail in Yokohama,
Ross was convicted of murder and sentenced to death by a consular court convened
by the US minister to Japan. The death sentence was then commuted by President
Hayes to life imprisonment, after which Ross was transferred to New York.85
During the course of his trial, Ross raised several objections to the proceedings.
First, he claimed that the consular court lacked jurisdiction over him because he
was a British subject. Next, he requested an indictment by a grand jury and a jury
trial under the Fifth and Sixth Amendments, which the US minister in Japan denied
because neither was required under the relevant statute enacted by Congress pursuant
to the treaty with Japan.86
In affirming the minister’s denial of Ross’s requests and, ultimately, his conviction,
the Court declared “[t]he constitution can have no operation in another country,”
and articulated the following “territorial” rule:
The deck of a private American vessel [where Ross committed the crime], it is true, is considered, for many purposes, constructively as territory of the United States; yet persons on
board such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the
[constitutional] provisions referred to until brought within the actual territorial boundaries of
the United States.87
The Court cited several reasons for its holding: (a) due process rights under the
Constitution “apply only to citizens and others within the United States, or who are
brought there for trial . . ., and not to residents or temporary sojourners abroad”;
(b) when the government exercises its authority in another country, “it must be on
such conditions as the two countries may agree [i.e. via a treaty]; the laws of neither
one being obligatory upon the other”; (c) the need to adjudicate criminal cases justifies
Congress’s vesting consuls with judicial authority; and (d) authorizing consular
courts to try US citizens, while not granting all of the due process protections under
the Constitution, is intended to afford them greater protections than what they would
have likely received had they been tried in a foreign court.88
86
87
In re Ross, supra note 36.
Id. at 456–462.
Id. at 468–470.
Id. at 464. Regarding Ross’s objection that the consular court lacked jurisdiction over him as a British
subject, the Court stated that “his enlistment as a crewmember of an American ship made him ‘entitled
to the protection and benefits of all the laws passed by congress on behalf of American seamen, and
[therefore] subject to all their obligations and liabilities.’” Id. at 472. The precedent in the case, therefore,
applies to citizens as well.
88
Id. at 464–465.
84
85
Rethinking the Constitution–treaty relationship 259
Although the Ross decision is understandable given the practical problems posed by
prosecuting US citizens abroad during the late nineteenth century, there is no question that Ross amounted to constitutional adjustment in light of a treaty—the due
process protections that Ross denied citizens abroad, and the constitutional provisions
from which they stemmed, were adjusted to accommodate conflicting treaty provisions and the needs of foreign affairs. Again, though the Court was facing a novel
question in this case, we can identify at least two of the factors articulated earlier in
section 1.3 of this article as suggesting constitutional adjustment. First, we can look to
the Court’s opinion itself to identify the strong foreign relations need that the decision
in Ross satisfied: as the Court acknowledged, the need to adjudicate criminals in other
countries, and to do so in a way congruent with the other country’s laws or the treaty,
was a prime motivation for its decision. Second, we can look at the way the precedent
in Ross was later overturned. Ross was cited approvingly by the Court in other cases
involving the due process rights of US citizens who were tried outside the US, until Reid
v. Covert89 abruptly and explicitly overruled it sixty-six years later in 1957.
Covert was handed down roughly two years after Congress’s heated debate over the
Bricker Amendment, which had been prompted by fears that America’s increasing
involvement in international affairs following World War II and the passage of various
international charters (e.g. the UN Declaration of Human Rights) might threaten
US sovereignty. The facts in Covert and Ross, though not identical, were similar: Covert
was a consolidated case involving the wives of two US servicemen who had murdered
their husbands while stationed abroad, one in England and the other in Japan. Neither
of the wives themselves was enlisted in the US armed forces.90 Pursuant to the status
of forces agreements between the US and the respective countries, both women were
tried without juries before military courts.91
Despite the similarities between the cases, their outcomes could not be more different.
Justice Black, joined by only three justices but with another three concurring in the
result, opened the Court’s opinion in Covert by “reject[ing] the idea that when the
United States acts against citizens abroad it can do so free of the Bill of Rights.”92
Citing language in article III, section 2, Black declared “[w]hen the Government
reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and
other parts of the Constitution provide to protect his life and liberty should not be
stripped away just because he happens to be in another land.”93 More importantly,
he explicitly and vehemently overruled Ross, stating that it “rested on a fundamental
misconception,” and calling it a “relic from a different era” that “has long since been
Supra note 12.
Id. at 3–4.
91
Although Ross involved a consular court and Covert involved military courts, the distinctions are
insignificant because both cases involved courts established pursuant to Congress’s enumerated article I,
section 8 powers, as the Court itself acknowledged.
92
Reid v. Covert, supra note 12, at 5.
93
Id. at 5–6.
89
90
260 I•CON 10 (2012), 242–260
directly repudiated by numerous cases.”94 Justice Black claimed that the Court’s holding
was “nothing new or unique,” since the Court had “regularly and uniformly recognized the Supremacy of the Constitution over a treaty.”95
The manner in which the Court in Covert overturned Ross strongly suggests that
constitutional adjustment in light of the treaty had occurred in Ross. This is because
the Court in Covert unequivocally stated that the Ross precedent was unconstitutional
because treaties cannot trump the Constitution. In other words, the Court, in the decision that is now central to the consensus view of absolute constitutional supremacy,96
implicitly acknowledged that a precedent that remained good law for sixty-six years
was predicated upon an unlawful “trumping” of the Constitution by a treaty. A clearer
indication of constitutional adjustment in light of a treaty could not be asked for.
3. Conclusion
As we have shown in this article, there can be little doubt that the consensus view—
that the substantive limitations which apply to any action by the federal government,
such as those enumerated in the Bill of Rights or those imposed on Congress in article I,
section 9, apply to the treaty power, and that the Constitution is, consequently,
absolutely supreme to treaties—is untenable, both conceptually as well as based on
the historical record. Likewise, the suggestion by some scholars97 that treaties have
routinely “trumped” the Constitution is also flawed. An alternative to both of these
views is needed if we are to understand the relationship between the Constitution
and treaties more accurately. In this article we have proposed and defended such an
alternative model: mutual adjustment, or the ongoing change of treaties in light of
the Constitution and of the Constitution in light of treaties. We believe that our view
is supported by a fair assessment of the historical record and of Supreme Court precedents. Consequently, the role of treaties, and an accurate conception of their function
in adjusting constitutional provisions historically, should feature more prominently
in discussions of whether and to what degree international legal norms should be
incorporated into domestic law.
Id. at 8 fn.10 (citing cases in which the Court and other federal courts “have held or asserted that various
constitutional limitations apply to the Government when it acts outside the continental United States”).
95
Id. at 17.
96
See supra note 26.
97
See, e.g., Spiro, supra note 28.
94