The Death of Treaty Supremacy
An Invisible Constitutional Change
Format:Hardback
Publisher:Oxford University Press Inc
Published:27th Oct '16
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Winner of the ASIL 2017 Certificate of Merit in Creative Scholarship
This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The treaty supremacy rule was a bedrock principle of constitutional law for more than 150 years. It provided that treaties are supreme over state law and that courts have a constitutional duty to apply treaties that conflict with state laws. The rule ensured that state governments did not violate U.S. treaty obligations without authorization from the federal political branches. In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights for all without distinction as to race. In 1950, a California court applied the Charters human rights provisions along with the traditional supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. Conservatives reacted by lobbying for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. Before 1945, the treaty supremacy rule was a mandatory constitutional rule that applied to all treaties. The de facto Bricker Amendment converted the rule into an optional rule that applies only to self-executing treaties. Under the modern rule, state governments are allowed to violate national treaty obligationsincluding international human rights obligationsthat are embodied in non-self-executing treaties.
[The Death of Treaty Supremacy] is necessary reading for all who study, practice or teach in the fields of international or foreign relations law or otherwise want or need to understand the role of treaties in the U.S. legal system. * David Stewart, Georgetown University Law Center, American Journal of International Law *
The 1783 Peace Treaty was the foundation stone of the nation, which is why the U.S. Constitution commands that treaties 'shall be the supreme law of the Land', co-equal to the Constitution and Congress's laws. In this book, David Sloss shows how, after World War II, American conservatives' hositlity to human rights treaties undermined and then neutered the constitutional command of treaty supremacy. Sloss' account of this constitutional mutiny is powerful, thought-provoking, and timely. * Thomas Lee, Leitner Family Professor of International Law, Fordham University Law School *
The Death of Treaty Supremacy makes a major contribution to our understanding of American constitutionalism. It demonstrates the evolutionary nature of constitutional law, identifies the complex practical forces that drive its evolution, and highlights yet another flaw in constitutional 'originalism'. It shows that historical changes have transformed the Constitution's meaning even on an issue where the 'original' meaning was actually clear and specific -- that properly ratified treaties are 'supreme' over state law. * Edward A. Purcell Jr., Joseph Solomon Distinguished Professor of Law, New York Law School *
In The Death of Treaty Supremacy, one of the nation's foremost treaty scholars tells a story of interest to all who care about constitutional change. It's a story of constitutional change driven by political and legal elites rather than courts, largely unnoticed even among the wider legal community, yet with significant implications for U.S. foreign relations law. The book is a fascinating contribution to not just treaty law, but to constitutional law as a whole. * Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law *
David Sloss has written a fascinating case study on a central constitutional question - how does the interpretation of the constitution change? Moreover, Scloss has taken as his example a pressing issue of contemporary constitutional debate - the role of treaties as domestic law in state and federal courts. His fine-grained and wide-reaching research and his thoughtful analysis benefits us all. * Judith Resnik, Arthur Liman Professor of Law, Yale University Law School *
A superior study, deservedly awarded the Certificate of Merit in Creative Scholarship by the American Society of International Law in 2017. * Jus Gentium *
ISBN: 9780199364022
Dimensions: 165mm x 236mm x 33mm
Weight: 953g
472 pages