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Rethinking the Constitutiontreaty relationship: A reply
to Remy Z. Levin & Paul
Chen
William M. Carter, Jr.*
1. Introduction
In Rethinking the Constitution–Treaty Relationship, Remy Z. Levin and Paul Chen
provide a valuable reexamination of the legal relationship between the US Constitution and treaties to which the United States is a party. The authors marshal historical evidence showing that the relationship is a more nuanced process of “mutual
adjustment” between treaties and the Constitution than is commonly understood.
The contemporary conventional wisdom is that constitutional provisions always
trump treaty obligations. The authors contend that characterizing this relationship in
absolutist terms is inaccurate and misleading: while the Constitution does sometimes
override treaty obligations, international law and domestic constitutional law sometimes interact in a dialogic manner, with treaty obligations and constitutional norms
operating to inform or “adjust” one another.
This Reply makes two primary points in seeking to further the conversation the
authors have so ably begun. First, as a descriptive matter, this Reply will argue that it
is imprecise to speak of treaties adjusting “the Constitution.” Rather, what the authors
have described is actually a process of treaties adjusting various constitutional actors’
constitutional interpretation, not the Constitution itself. While this difference may at
first appear to be merely pedantic, I believe that speaking of this interaction as
involving the adjustment of some free-standing constitutional meaning obscures
important issues regarding separation of powers and judicial review. Second, this
Reply will briefly discuss the tension between the authors’ thesis and Supreme Court
precedent in a related area. If constitutional actors indeed do “adjust” constitutional
* William M. Carter Jr. is a Professor of Law at the Temple University Beasley School of Law. The author
acknowledges The Clifford Scott Green Research Fund in Law for its generous support. Email: wccarter@
temple.edu
I•CON (2012), Vol. 10 No. 1, 261–267
doi: 10.1093/icon/mor082
262 I•CON 10 (2012), 261–267
meaning in light of treaties, it raises similar separation of powers concerns as those at
issue in the Supreme Court’s cases holding that Congress cannot, in seeking to enforce
the Fourteenth Amendment’s individual rights provisions, alter constitutional meaning.
2. Constitutional meaning and constitutional interpretation
The authors provide several examples of circumstances in which they contend that
treaties adjusted the meaning of the Constitution. As the authors acknowledge,
however, what was actually being adjusted was the “relevant constitutional actor[’s]”
interpretation of a constitutional provision in light of the treaty at issue.1 More specifically, what was being adjusted in many of the instances the authors describe was
not only the relevant actors’ understanding of the specific constitutional provisions
that conflicted with the treaty at issue, but also those actors’ understanding of the
requirements of the Supremacy Clause.2
By explicitly focusing the inquiry on whether treaties can and should adjust constitutional actors’ interpretations of the Constitution, several important separation of powers questions emerge. Some of these issues are common to all three branches of the
federal government; others may be unique to a particular branch. As to constitutional
interpretation by Congress, several issues arise. First, given Congress’s constitutional
role in making treaties,3 it is unsurprising that Congress (or individual congresspersons) would adjust its constitutional interpretation in light of treaties to which it has
given its advice and consent. Having determined that a given treaty (such as the
treaty with France embodying the Louisiana Purchase)4 was in the national interest,
it would perhaps be more surprising if those congresspersons urging the treaty’s ratification or seeking to implement its provisions did not argue for a constitutional interpretation amenable to the treaty.5 Second, the question of what “Congress” meant or
intended is always fraught with difficulty. In the Louisiana Purchase example, some
1
2
3
4
5
See, e.g., Remy Z. Levin & Paul Chen, Rethinking the Constitution–Treaty Relationship, 10 Int’l J.
Const. L. (I·CON) 242, 249 (2012) (stating that “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”).
U.S. Const. art. VI, cl. 2. See, e.g., Levin & Chen, supra note 1, at 260 (describing Justice Black’s opinion
for the Court in Reid v. Covert, 354 U.S. 1 (1957) wherein he stated that the Court, relying on the
Supremacy Clause, had “regularly and uniformly recognized the Supremacy of the Constitution over a
treaty”). See also Reid v. Covert, at 16 (quoting the Supremacy Clause’s text and stating that “[t]here is
nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to
comply with the provisions of the Constitution”).
The Constitution’s Treaty Clause provides that the President “shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
U.S. Const. art. II, § 2, cl. 2.
Levin & Chen, supra note 1, at 16–19.
The Louisiana Purchase example is probably the least persuasive example in Levin & Chen of “constitutional adjustment” in light of a treaty. The text of art. I, § 9, cl. 6 stating that “No Preference shall be given
by any Regulation of Commerce or Revenue to the Ports of one State over those of another . . .” was at
least as amenable to an interpretation that it only included “states” (not territories), as to the interpretation that it included any port.
Treaties, the Constitution, and separation of powers 263
congresspersons may indeed have adjusted their constitutional understandings based
on the treaty at issue. Others may have arrived at the same understanding regardless
of the treaty.6 And yet others may have arrived at their understanding, whether for or
against the treaty’s compatibility with the Constitution, based on factors completely
extraneous to legal doctrine, e.g., sectional conflicts or economic benefits.
As to the executive branch’s constitutional interpretation in light of a treaty, some
of the same issues arise. As with Congress, the president, by ratifying the treaty, has
presumably already found its terms to be in the national interest.7 The president, then,
would have a similar incentive to interpret the Constitution in a way that makes the
treaty obligations consistent with the Constitution. At least one issue is different, however: the executive branch, unlike Congress, has no clear textual authority to determine constitutional meaning. Congress, for example, has the power to “enforce” the
post-Civil War Amendments protecting individual rights.8 Although the exact scope
of Congress’s interpretive power under these amendments is the subject of great
debate,9 it is generally agreed that Congress has some degree of interpretive power.
Similarly, the power to render its “advice” on a treaty implies a power to interpret the
meaning of a treaty and, by extension, the legality of a treaty obligation in light of
the Constitution.10 The president, by contrast, has only the power to “take Care that
the Laws be faithfully executed.”11 “Executing” law perhaps implies lesser interpretive
leeway than “enforcement” of the law, and certainly less than “advice” regarding the
advisability or permissibility of law. One implication of the arguably different scope
accorded to the President with regard to constitutional interpretation is that the
executive branch perhaps should be more leery of “adjusting” its constitutional interpretation downward in light of incompatible treaty provisions. Under the Supremacy
Clause, the “laws” that the president is obliged to “faithfully execute” include treaties
as well as the Constitution and other federal laws.12 Thus, the president, when faced
with treaty provisions that are allegedly incompatible with the Constitution, must
See supra note 5.
This assumes, of course, that the president who initially requested the Senate’s approval of the treaty is
the same person as the president who ratifies the treaty. If different individuals hold the presidency during
the process of the treaty’s ratification, there is no guarantee that the first president’s assessment that the
treaty is in the national interest will be shared by a later president.
8
See U.S. Const. amend. XIII, §2 (“Congress shall have power to enforce this article by appropriate
legislation.”); U.S. Const. amend. XIV, §5 (“The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”); U.S. Const. amend. XV, §5 (“The Congress shall have power to
enforce this article by appropriate legislation.”).
9
See infra notes 19–25, and authorities cited therein.
10
See Harold Hongju Koh, The President Versus the Senate in Treaty Interpretation: What’s all the Fuss About?,
15 Yale J. Int’l L. 331, 332 (1990) (stating that “the Senate may withhold its consent to a treaty, or
it may give that consent subject to certain conditions—ranging from reservations to declarations to
understandings of what particular treaty terms mean”).
11
U.S. Const. art. II, §3.
12
Cf. William M. Carter, Jr., Treaties as Law and the Rule of Law, 69 Maryland L. Rev. 344, 349–358 (2010)
(arguing, inter alia, that the Supreme Court erred in Medellin v. Texas, 552 U.S. 491 (2008), in holding
that, absent implementing legislation enacted by Congress, the Executive Branch lacked the power to
require domestic compliance with treaty provisions obliging states parties to implement judgments of the
International Court of Justice).
6
7
264 I•CON 10 (2012), 261–267
seek to “faithfully execute” both. This could imply that the president has a unique
constitutional duty to “adjust” his interpretation of both the treaty and the Constitution in a way that renders them reconcilable, rather than to adjust his interpretation
of one in a way that gives primacy to the other. To be clear, I am not suggesting that
there necessarily must be a difference between the executive branch and Congress in
terms of constitutional interpretation in light of a treaty, but that their different roles
may give rise to different considerations.
With regard to the judiciary, however, quite different concerns arise from those
regarding Congress and the president. First, the judiciary is differently situated than
the other branches of the federal government vis-à-vis treaty-making. Under the
Treaty Clause, the president and the Senate have concurrent power to commit the
United States to a treaty.13 By contrast, the text of the Treaty Clause contemplates
no role for the judiciary in the treaty-making process.14 Because the judiciary has
no structural role in treaty creation, and because of the prohibition against advisory
opinions under article III of the Constitution,15 any federal judicial involvement in
determining the meaning of a treaty, or of the Constitution in light of a treaty,
(a) occurs post hoc in an adversarial context and (b) often involves individual rights.
The first difference—post hoc participation in an adversary context—likely
creates very different incentives for a judge than for the president or a congressperson. The judge presumably has no vested, pre-existing stake in a given interpretation of the treaty or the Constitution’s compatibility therewith. Moreover, the
fact that any judicial involvement occurs in an adversarial context means that
the judge’s views on the meaning and compatibility of the treaty and the Constitution are supposed to be shaped by the opposing parties’ presentations. The
judge therefore has a narrower body of information upon which to draw than the
treaty-makers. The second difference is also important: the judiciary’s involvement in determining a treaty’s compatibility with the Constitution often occurs in
a context where individual rights are at stake (such as in the extradition and due
process examples discussed by Levin and Chen)16 rather than where structural
constitutional provisions are involved (such as in the Louisiana Purchase or piracy
U.S. Const. art. II, § 2, cl. 2.
Other constitutional provisions, most notably, Article III of the Constitution (and the power of judicial
review as interpreted in Marbury v. Madison, 5 U.S. 137 (1803)), surely contemplate a judicial role in
determining the meaning and legality of a treaty. I therefore do not suggest that the judiciary has no role
in treaty interpretation, only that the Treaty Clause contemplates no judicial role in treaty formation.
15
See Flast v. Cohen, 392 U.S. 83 (1968) (stating that “the oldest and most consistent thread in the federal
law of justiciability is that the federal courts will not give advisory opinions,” i.e., the federal courts are
only empowered to hear “cases or controversies” involving concrete disputes between the parties before
the court).
16
See Levin & Chen, supra note 1, at 251–255, 257–260. It is worth noting that the case Levin & Chen make
for viewing extradition as an example of when treaties have “adjusted” the Constitution may be doctrinally
weaker than the other examples provided. The authors suggest that the historical evidence reveals that
“these constitutional provisions [regarding criminal procedure and due process rights] were, therefore,
effectively adjusted in light of extradition treaties.” Id. at 254. But there is a simpler doctrinal explanation,
which the authors acknowledge: extradition is not a criminal proceeding to which these protections have
been thought to apply. Although the authors argue that “the distinction between criminal proceedings
13
14
Treaties, the Constitution, and separation of powers 265
examples that Levin and Chen discuss).17 Each of these differences, and the combination
of them, may raise different questions for the judiciary than for Congress and the president as to whether and how a judge should “adjust” his or her constitutional interpretation to accommodate a treaty. Some of those questions include the following:
1. Given the judiciary’s lack of ex ante participation in treaty formation, should the
judge defer to the presumed interpretation of the treaty-makers (the president and
Congress) that the treaty is compatible with the Constitution and therefore adjust
his or her own interpretation of the Constitution in such a way as to accommodate
the treaty? Or, conversely, given the judiciary’s somewhat more neutral stance (in
terms of lacking a pre-existing vested interest in the treaty’s validity), should the
judge err on the side of adjusting the treaty to accommodate the Constitution?
2. Does it matter whether the case is one that involves individual rights provisions
or structural provisions of the Constitution? In the latter case, if by ratifying the
treaty, Congress (through the Senate) and the president have effectively agreed to
limit their own structural prerogatives (for example, to define the crime of piracy),
then perhaps the judiciary should adjust its interpretation of the Constitution to
allow this to happen.18 Conversely, where a case involves a treaty’s impact on
individual rights, the individual involved, of course, has not agreed to limit
his constitutional rights in order to accomplish the treaty’s goal. Accordingly,
perhaps the judiciary should more zealously guard constitutional primacy over a
treaty when someone lacking the power to directly determine the treaty’s scope
prior to its ratification will feel the treaty’s effect.
This Reply does not purport to have definitive answers to these questions, nor is this
discussion intended to suggest that the authors of Rethinking the Constitution–Treaty
Relationship could or should have provided an exhaustive examination of all of these
issues. But the different positions and constitutional roles of the three branches of the
federal government raise questions of what precisely is (or should be) happening when
each adjusts its constitutional interpretation in light of a competing treaty provision.
and extradition proceedings is fragile,” id. at 254 (and I tend to agree), it is at least as persuasive an
explanation for what actually happened in these cases as the alternative explanation they propose. Moreover,
the other contexts in which the Supreme Court has found that traditional criminal procedure protections
do not apply (e.g., immigration proceedings, juvenile court, etc.) and which have similar consequences
as extradition (i.e., removal from the country and/or detention) have no connection to treaties at all. Yet
the Court has, like extradition proceedings, held them to a lesser constitutional standard. In other words,
the driving force here may not be that extradition cases involve treaties, but they are part of a larger (and
in my view mistaken) body of precedent under which the Court has treated any process that does not in
all respects precisely mimic traditional criminal trials as receiving very little constitutional protection.
17
See Levin & Chen, supra note 1, at 250–251, 255–257.
18
This is not to suggest that it is untroubling if Congress and the president can, outside of the amendment
process, actually change constitutional meaning. To the contrary, as noted at the beginning of this
section, what is being changed is constitutional interpretation, not some freestanding objective meaning. Here I am merely suggesting that even if Congress’s or the president’s interpretation of structural provisions of the Constitution involving their own power is mistaken, then perhaps, for the reasons
described above, the judiciary should stand aside.
266 I•CON 10 (2012), 261–267
3. Separation of powers and individual rights
Levin and Chen argue that the consensus view of absolute constitutional supremacy
is mistaken and oversimplifies the relationship between the Constitution and treaties.
If Levin and Chen are correct about this as a descriptive matter, it is in tension with
the Supreme Court’s doctrine regarding Congress’s role in determining constitutional
meaning. Moreover, it raises important normative implications with regard to individual rights under the Constitution. The last section of this Reply briefly highlights
these issues.
In a series of cases beginning with City of Boerne v. Flores,19 the Court has
limited Congress’s power to enforce individual rights under section 5 of the Fourteenth
Amendment.20 In the Court’s words, “[a]s broad as the Congressional enforcement
power is,”21 Congress cannot “make a substantive change in the governing [constitutional] law.”22 The Court acknowledged that both the Court and Congress have concurrent power in this area. But the Court has held that its rulings as to constitutional
meaning are supreme and that Congress cannot adjust constitutional meaning in a
way contrary to the Court’s prior holdings, even when the result would be to increase
the protection given to individual rights. In sum, under Boerne, Congress’s power is
largely limited to giving effect to pre-existing definitions of constitutional meaning
and does not extend to substantive redefinition of constitutional meaning.23
The Boerne doctrine, grounded in separation of powers concerns,24 has implications
for Levin and Chen’s thesis. Rethinking the Constitution–Treaty Relationship suggests in
effect that the Senate and the president, through the treaty power, can and do
“adjust” the Constitution to accommodate a treaty. If the president and one branch
of Congress (the Senate) can adjust the meaning of the Constitution using the treaty
power, then presumably the President and both houses of Congress would be able
to do so through the normal process of enacting federal legislation through bicameralism and presentment.25 Yet Boerne and its progeny dictate precisely the opposite:
City of Boerne v. Flores, 521 U.S. 507 (1997).
U.S. Const. amend. XIV, §5 (“The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.”). The rights protected by the Fourteenth Amendment include the rights to due
process and equal protection.
21
Id. at 518 (internal quotation marks omitted).
22
Id. at 519.
23
A full examination of this complex issue is beyond the scope of this Reply. For further discussion, see, e.g.,
Jennifer Mason McAward, The Scope of Congress’s Thirteenth Amendment Enforcement Power after City of
Boerne v. Flores, 88 Wash. U. L. Rev. 77 (2010); William M. Carter, Jr., Race, Rights, and the Thirteenth
Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311 (2007); William
M. Carter, Jr., Judicial Review of Thirteenth Amendment Legislation: “Congruence and Proportionality” or
“Necessary and Proper”?, 38 U. Tol. L. Rev. 973 (2007).
24
See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001) (stating that “it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees”).
25
Indeed, the argument from democratic legitimacy would be stronger in the latter case, because both
houses of Congress would be involved. Cf. The Head Money Cases, 112 U.S. 580, 599 (1884) (“A treaty
is made by the President and the Senate. Statutes are made by the President, the Senate and the House of
Representatives. . . . If there be any difference in this regard, it would seem to be in favor of an act in which
all three of the bodies participate.”).
19
20
Treaties, the Constitution, and separation of powers 267
federal legislation cannot change constitutional meaning. Perhaps there is something
special or different about the Treaty Power’s relationship to the Constitution, but
Levin and Chen do not explicitly distinguish it from other constitutional powers that
could similarly be argued to provide a basis for the political branches to similarly
“adjust” the Constitution.
4. Conclusion
Levin and Chen illuminate the complexity of the interaction between treaties and the
Constitution. This Reply has highlighted several implications of Levin and Chen’s thesis
and thereby suggests some areas for further exploration. By challenging the
consensus view of the Constitution’s absolute supremacy over treaties, Rethinking the
Constitution–Treaty Relationship is sure to prompt further conversation about what
this relationship is and should be.