"Ascertained in a different way": The treaty power at the crossroads of contract, compact, and constitution

George Washington Law Review

Volumn 69, Issue 2, 2001, Pages 189-250

  Anderson IV, Robert ^a,b,c  

^a Sullivan and Cromwell   (United States)

^b CLAREMONT MCKENNA COLLEGE   (United States)

^c NEW YORK UNIVERSITY   (United States)

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EID: 26444530168     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (360)

1. 252 U.S. 416 (1920).
2. Id. at 433 (emphasis added).
3. Id. at 433-34.
4. Gerald L. Neuman, The Nationalization of Civil Liberties, Revisited, 99 COLUM. L. REV. 1630, 1646 (1999).
5. See infra notes 34-38 and accompanying text.
6. Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT'L L. 341 (1995). Senator Bricker advocated a constitutional amendment that would limit the treaty power to areas of legislative competence. See infra Part II.C.
7. See LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 185 (2d ed. 1996).
8. See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 402-09 (1988).
9. Carlos Manuel Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1343 (1999); see also Henkin, supra note 6, at 345 ("There are no significant 'states' rights' limitations on the treaty power.").
10. In ascertaining the Framers' intent, I rely heavily on the recorded remarks of the delegates in the Federal Convention of 1787 and the various state ratifying conventions. Of course, this approach is subject to the same criticisms as the use of legislative history, which "Judge Harold Leventhal used to describe . . . as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring). Nevertheless, James Madison, who provides the backbone to much of my argument, is rightly regarded as the life of a very important party, and consequently the presence of the other guests is less significant.
11. U.S. CONST. art. II, § 2, cl. 2.
12. Id. art. VI, cl. 2.
13. Geofroy v. Riggs, 133 U.S. 258, 267 (1889).
14. U.S. CONST. art. VI, cl. 2.
15. 354 U.S. 1 (1957). See infra Part III.C.
16. Reid, 354 U.S. at 16-17. Reid confirms that at least the first eight amendments to the Constitution constitute limitations on the Treaty Power, and implies that structural limits such as federalism also limit its scope. See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 302 reporters' note 1 (1987) [hereinafter RESTATEMENT (THIRD)].
17. Reid, 354 U.S. at 16-17.
18. See HENKIN, supra note 7, at 185-98.
19. Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781, 848 (1994).
20. Courts use the term "self-executing" in at least two different ways, to refer to either: (1) treaties that are judicially enforceable in a general sense without implementing legislation, or (2) as a concept akin to standing, in that even treaties that are judicially enforceable are "non-self-executing" for certain litigants, usually individual plaintiffs as opposed to states party. David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 YALE J. INT'L L. 129, 144-56 (1999). For the purposes of this article, the first definition of self-executing treaties is most relevant, meaning merely that the treaty is implemented into domestic law without any implication as to who has standing to invoke its provisions.
21. Sloss, supra note 19, at 132 n.12. The conventional understanding is that such non-self-executing declarations are designed to avoid any domestic effect of treaty obligations. Id. at 135.
22. Whitney v. Robertson, 124 U.S. 190, 194-5 (1888); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870).
23. Carlos M. Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1086 (1992).
24. The self-executing treaty doctrine is itself the subject of many scholarly articles. See, e.g., Sloss, supra note 19. At least one scholar has noted, however, that self-executing treaties raise important structural problems for the Constitution's separation of powers. See, e.g., John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218, 2233-48 (1999).
25. The claim that domestic lawmaking is procedurally easier is implicit in an article by Bruce Ackerman and David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801 (1995) in which the authors suggest that the formal treaty process is an unnecessary constitutional burden on international agreement-making. But see Sloss, supra note 19, at 175 n.238, where the author insightfully remarks that the movement behind the Bricker Amendment, see infra Part II.C, seemed to assume precisely the opposite - i.e., that the additional involvement of the House of Representatives (achieved by the Amendment's addition of a non-self-executing requirement to all treaties) would constitute an important check on the Treaty Power.
26. This view was plainly supported by Justice Holmes himself, who explained that "[i]f the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." Missouri v. Holland, 252 U.S. 416, 432 (1920).
27. THOMAS JEFFERSON, A Manual of Parliamentary Practice, in JEFFERSON'S PARLIAMENTARY WRITINGS 353, 420-21 (1988) (emphasis added).
28. See Bradley, supra note 8, at 402-09. Such treaties include, for example, The International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 9464;
29. The Convention on the Elimination of All Forms of Discrimination Against Women, adopted, Sept. 3, 1981, 1249 U.N.T.S. 14;
30. and The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment on Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
31. One particular example raised by Henry exhibited a peculiar foresight into the twentieth century, and foreshadowed the issues raised by Reid v. Covert. Henry asked: How do the rights of persons stand, when they have power to make any treaty, and that treaty is paramount to constitutions, laws, and everything? When a person shall be treated in the most horrid manner, and most cruelly and in humanly tortured, will the security of territorial rights grant him redress? 3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 512 (2d ed. 1937) (1836) [hereinafter ELLIOT'S DEBATES] (statement of Patrick Henry). Madison apparently had no ready answer to Henry's hypotheticals, and snapped back: "I shall say nothing. It is as inapplicable as many other quotations made by the gentleman." Id. at 516 (statement of James Madison).
32. Id. at 514-15 (statement of James Madison). Despite Madison's mentions of "Congress" and "regulations," he was speaking specifically about the Treaty Power, not about Congressional regulation of foreign affairs as a whole.
33. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 552-53 (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833).
34. Id. at 552-53 (emphasis added).
35. Id. at 553-54.
36. 1 CHARLES H. BUTLER, THE TREATY-MAKING POWER OF THE UNITED STATES § 3, at 5 (1902).
37. S. REP. NO. 83-412, at 1 (1953).
38. 354 U.S. 1 (1957).
39. Id. at 12.
40. See Bradley, supra note 8, at 399 & n.42.
41. See infra Part V.D.
42. Bradley, supra note 8, at 419.
43. 35 U.S. (10 Pet.) 662 (1836).
44. Id. at 735-37.
45. Id. at 736.
46. Id. Beyond the general observation that the federal government is one of limited powers, the entirety of the Court's reasoning on the Commerce Clause issue consisted of: "A statement of the case is a sufficient refutation of the argument." Id. at 736. Interestingly, the Court defined the quay in question as being "a vacant space between the first row of buildings and the water's edge . . . used for the reception of goods and merchandize imported or to be exported," id. at 714, asserting control over which would seemingly constitute the quintessential example of regulating "[c]ommerce with foreign [n]ations, and among the several States." U.S. CONST. art. I, § 8, cl. 3.
47. Bradley, supra note 8, at 419 (citing New Orleans, 35 U.S. at 737).
48. New Orleans, 35 U.S. at 736-37. In its reasoning, the Court simply noted the uncontroversial point that the federal government "can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power." Id. at 736. From this unremarkable observation, Bradley infers a suggestion that the Treaty Power can be limited solely to the subjects of federal legislative authority. Bradley, supra note 8, at 419-20.
49. Bradley, supra note 8, at 399.
50. 514 U.S. 549 (1995).
51. See Vázquez, supra note 9, at 1339 n.74.
52. Bradley, supra note 8, at 460. Accepting Bradley's proposition of "subjecting the treaty power to the same federalism limitations that apply to Congress's legislative powers," id., would require overruling the holding, and not just the dicta, of Missouri v. Holland. The Migratory Bird Act in question had been held beyond Congress's legislative authority in District Court, and Justice Holmes explicitly upheld the act assuming the correctness of the lower court's determination that the prior statute was unconstitutional. Missouri v. Holland, 252 U.S. 416, 433 (1920).
53. Bradley, supra note 8, at 455-56.
54. Power Auth. v. Fed. Power Comm'n, 247 F.2d 538, 543 (D.C. Cir. 1957) (emphasis added) (citing 23 PROC. AM. SOC'Y INT'L L. 194, 196).
55. Bradley, supra note 8, at 430 n.227.
56. Martin S. Flaherty, Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L. REV. 1277, 1299 (1999).
57. RESTATEMENT (SECOND) OF FOREIGN RELATIONS § 117(1) (1965) ("The United States has the power under the Constitution to make an international agreement if . . . the matter is of international concern.")
58. RESTATEMENT (THIRD), supra note 16, § 302 cmt. c ("[T]he Constitution does not require that an international agreement deal only with 'matters of international concern.'").
59. See infra Part V.C.
60. JEFFERSON, supra note 26, at 421. In the modern understanding, such a statement about "reserved" rights is not particularly troubling, as the Supreme Court has conceded that the Tenth Amendment text is a tautology that does not itself "reserve" anything. New York v. United States, 505 U.S. 144, 156-57 (1992). Following Justice Story's reasoning, Justice O'Connor simply conceded that "the Tenth Amendment 'states but a truism that all is retained which has not been surrendered.'" Id. at 156 (citing United States v. Darby, 312 U.S. 100, 124 (1941)). If the Treaty Power has been surrendered to the federal government, as the remainder of Part II.D demonstrates, the "reserved" rights of the states are no barrier to its exercise.
61. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824).
62. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935).
63. United States v Lopez, 514 U.S. 549, 558-59 (1995).
64. U.S. CONST. art. I, § 8.
65. The cases involving interstate commerce explicitly distinguish between intrastate and interstate activities, requiring that the former "substantially affect" interstate commerce. The Morrison Court, although declining to adopt a "categorical rule," made it explicit that laws regulating intrastate activity under the Commerce Clause have generally been directed at activity "economic in nature." United States v. Morrison, 529 U.S. 598, 613 (2000). Making this distinction is perfectly natural for the Commerce Clause, but misplaced in the case of the Treaty Power.
66. Id. at 617. The Court stated that Congress may not "regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce," and reaffirmed that "[t]he Constitution requires a distinction between what is truly national and what is truly local." Id. at 617-18 (citing Lopez, 514 U.S. at 568).
67. Lopez, 514 U.S. at 567-68.
68. See, e.g., Daniel O. Conkle, Congressional Alternatives in the Wake of City of Boerne v. Flores: The (Limited) Role of Congress in Protecting Religious Freedom from State and Local Infringement, 20 U. ARK. LITTLE ROCK L.J. 633, 664 (1998) (arguing that Missouri v. Holland "balanced the competing interests that were at stake").
69. Flaherty, supra note 53, at 1299. Professor Flaherty does not advocate a Lopez-type limitation on the Treaty Power, but rather explains that even a Lopez-like test that balanced state and federal interests would require extra deference to federal interests in the context of foreign affairs.
70. U.S. CONST. art. I, § 8, cl. 5.
71. Id. art. I, § 10, cl. 1.
72. Id. art. II, § 2, cl. 2.
73. Id. art. I, § 10, cl. 1.
74. 301 U.S. 324 (1937).
75. Id. at 331-32 (emphasis added) (citations omitted).
76. Id. at 332 (emphasis added).
77. G.E. White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1, 115-16 (1999).
78. 3 U.S. (3 Dall.) 199 (1796).
79. Curtis A. Bradley, A New American Foreign Relations Law?, 70 U. COLO. L. REV. 1089, 1091-97 (1999) (arguing that the twentieth century's view of executive power over foreign affairs, in cluding the irrelevance of federalism to foreign affairs, involved a departure from textual gr ants of enumerated powers).
80. Vázquez, supra note 9, at 1339 n.76. Professor Vázquez helpfully notes that in National League of Cities v. Usery, 426 U.S. 833, 852 & n.17 (1976), the Court suggested that its limits on the Commerce Clause (since-overruled) would not necessarily apply to the Spending Power, and that in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), the Court cautioned that such limits might not apply to the War Power. Vázquez, supra note 9, at 1339 n.76.
81. Lori F. Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515, 530 (1991).
82. United States v. Belmont, 301 U.S. 324, 331-32 (1937).
83. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 143.
84. Henkin, supra note 6, at 143.
85. Id. at 142.
86. See infra Part IV.
87. Louis Henkin, Current Developments, Restatement of the Foreign Relations Law of the United States (Revised), 74 AM. J. INT'L L. 954, 957 (1980).
88. At this point, after having developed "international concern" as a contractual test and established the inappropriateness of tests of subject matter "legitimacy," we can perceive the confusion of Commerce Clause concepts with that of international concern. Professor Flaherty, for example, writes that "just as the application of 'interstate commerce' has expanded in the last fifty years, so too has the scope of international law," and believes that "matters of 'international,' that is[,] external concern" have expanded. Flaherty, supra note 53, at 1299. Flahert y's analogy actually implicitly supports a subject-matter frame of reference for the Treaty Pow er. Interstate commerce is defined according to a "substantial effects" test - a subject matter test - that determines what matters are "legitimately" within the domain of a state and what matters are properly regarded as interstate. In contrast, the proper conception of international co ncern does not rely on classifying the subject as legitimate, but on the concerns of the parties. Thus, commentators who "internationalize" certain subject matter implicitly reaffirm the subject matter restriction. Similarly, Professor Neuman writes that "human rights are among the matters of legitimate international concern," and that they are "no longer a matter of exclusive dom estic concern, but rather a subject of international cooperation and oversight." Neuman, supra note 4, at 1649 (emphasis added). Neuman likely intends to say that human rights are subjects upon which states may conclude agreements. Nonetheless, he perpetuates the myth of the subject-matter restriction by asserting that some definition of "legitimate" subject matter exists apart from the parties' agreement.
89. Power Auth. v. Fed. Power Comm'n, 247 F.2d 538, 543 (D.C. Cir. 1957) (emphas is added).
90. Louis Henkin, Human Rights and State "Sovereignty," 25 GA. J. INT'L & COMP. L. 31, 32 (1995/1996).
91. Flaherty, supra note 53, at 1306 (emphasis added). First, this notion of good faith bargaining is distinct from the concept of good faith employed by the VIENNA CONVENTION ON TREATIES or in international law generally, which governs the actions of other parties to international agreements. See generally SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES: 45-1986, at 135-79 (1989).
92. In the context of internatil law, good faith's "primary function, and perhaps its sole function is, as a matter of positive law, to allow the decision-making authority a fair degree of freedom of action in interpreting and applying the terms of a treaty obligation in a concrete case." Id. at 176. In this context, good faith refers to the bona fides of the President and Senate in enacting a treaty to secure action or forbearance by a foreign nation. Second, this contractual approach has nothing to do with external enforceability in international law. The basic test of external enforceability is the existence of an international agreement governed by international law, which essentially means formal evidence "expressing the consent of the State" to be bound. VIENNA CONVENTION ON THE LAW OF TREATIES, art. 7, 1155 U.N.T.S. 33 4.
93. Even if a treaty is unenforceable in internal law, the United States is not absolved of the obligations it incurs under international law. (This article accepts that a "treaty" may constitute an obligation in international law, yet fail to rise to the level of a "treaty" within the meaning of the Constitution. Some commentators have objected to the "dual" approach to treaty, most vigorously to the notion that treaties may have internal effectiveness, even absent a binding interntional obligation. See, e.g., Malvina Halberstam, A Treaty Is a Treaty Is a Treaty, 33 VA. J. INT'L L. 51 (1992). Professor Halberstam argues that "[a] treaty is law domestically only because a nd to the extent that it is law internationally." Id. at 53. In other words, Halberstam asserts th at international enforceability is a necessary condition for internal enforceability, and strongly implies that international enforceability is also a sufficient condition for internal enforceability. Although I agree that international enforceability is a necessary condition to internal enforceability, I argue that international enforceability is not a sufficient condi for domestic enforceability. Finally, the analysfollowing, although applicable both to self-executing and non-self-executing treaties, is limited to the context of non-self-executing treaties where constitutional authority is broadest. See supra Part II.A. Self-executing treaties may have additional constitutional constraints based on structural considerations of separation of powers. RESTATEMENT (THIRD), supra note 16, § 111(4). For example, the President and the Senate cannot effect a spending bill by a self-executing treaty, because only Congress has the constitutional authority to make appropriations. U.S. CONST. art I, § 9, cl. 3.
94. U.S. CONST. art. I, § 8.
95. See infra Part V.C.
96. Flaherty, supra note 53, at 1298.
97. See supra Part III.C.
98. See Charles A. Lofgren, War Powers, Treaties, and the Constitution, in THE FRAMI NG ~AND RATIFICATION OF THE CONSTITUTION (Leonard W. Levy & Dennis J. Mahoney eds., 1987).
99. During the Virginia Debates, Patrick Henry embarked upon a crusade to limit the Treaty Power he viewed as "omnipotent," in part by advocating an amendment requiring the concurrence of the House. 3 ELLIOT'S DEBATES, supra note 28, at 513 (statement of Patrick Henry). Henry observed that the Treaty Power enables the President and the Senate "to make any treaty, and that treaty is paramount to constitutions, laws, and everything." Id. at 512. The treaty makers "may exercise it if they please, and as they please. They have a right, from the paramount power given them, to do so." Id. at 513. George Mason agreed, stating that "[t]he President and the Senate may make any treaty whatsoever." Id. at 509 (statement of George Mason).
100. Id. at 501 (statement of Patrick Henry).
101. Id. at 500-16. It is instructive to note that many of the quotations cited from the Founding often seem inconsistent with the ideologies of their expositors. For example, one would never expect to hear the Antifederalist Patrick Henry arguing for an "omnipotent" federal Treaty Power. These role-reversals are the product of the ratification process, during which the Constitution's opponents sought to demonize the document and its proponents often pretended that it were only imperceptibly different from the sickly Articles of Confederation.
102. Jack Rakove, Collapse of the Articles of Confederation, in THE AMERICAN FOUNDING 233. The Southerners feared the Treaty Power largely because of Spain's closure of the Mississippi to American vessels in 1784, and John Jay's subsequent proposal of a treaty th at would accept the temporary closure in exchange for a commercial agreement. Id.
103. See also 3 ELLIOT'S DEBATES, supra note 28, at 325-64. This forty-page debate over the Treaty Power was only one of several discussions concerning the Mississippi River; the issue was particularly contentious because seven Northern states, whose interests as merchants demanded the treaty, supported the cession of the River. Rakove, supra, at 233-34.
104. DEBATES IN THE FEDERAL CONVENTION OF 1787 AS REPORTED BY JAMES MADISON, reprinted in DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE AMERICAN STATES 546 ~(Charles C. Tansill ed., 1927) [hereinafter DEBAN THE FEDERAL CONVENTION] (stat ement of James Madis.
105. 3 ELLIOT'S DEBATES, supra note 28, at 500-03 (statement of Patrick Henry).
106. See, e.g., id. at 500-01 (statement of Patrick Henry) (fearing that the government would "dismember[] the empire" by relinquishing territory to other nations) at 500-01; id. at 501-04 (statement of Patrick Henry) (asserting that the Treaty Power would permit the President to hand over an American citizen for punishment abroad, contrary to the citizen's rights); id. at 509 (statement of George Mason) (objecting to the power to make a treaty allowing foreign subjects the attributes of citizenship, such as land ownership).
107. The Antifederalist raises this concern that treaties might be "extended to almost every legislative object of the general government" but even this critique does not suggest that the Power might be used for non-contractual objects, merely that some such contractual objects could greatly expand the federal power. ANTIFEDERALIST NO. 75, at 214 (Hampden) (Morton Borden ed., 1965).
108. 3 ot's Debates, supra note 28, at 514 (statement of James Mson).
109. See infra notes 127-32 and accompanying text.
110. THE FEDERALIST NO. 42, at 259 (James Madison) (Henry Cabot Lodge ed., 1891).
111. 3 ELLIOT'S DEBATES, supra note 28, at 514 (statement of James Madison).
112. Id. at 507 (statement of George Nicholas).
113. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819).
114. U.S. CONST. art. I, § 8, cl. 18.
115. See supra Part II.A.
116. McCulloch, 17 U.S. at 421.
117. James Madison also noted the Necessary and Proper Clause's inherent distinction between "ends" and "means," writing that even where the Constitution is silent, "wherever the end is required, the means are authorized; wherever a general power to do a thing is give n, every particular power necessary for doing it is included." THE FEDERALIST NO. 44, at 28 2 (James ~Madison) (Henry Cabot Lodge ed., 1891).
118. 3 ELLIOT'S DEBATES, supra note 28, at 514 (statement of James Madison).
119. Id. (emphasis added).
120. THE FEDERALIST NO. 75, at 466-67 (Alexander Hamilton) (Henry Cabot Lodge ed., ~1891) (capital letters in original) (emphasis added).
121. Geofroy v. Riggs, 133 U.S. 258, 271 (1890) (noting that treaties "are con tracts between independent nations"); Bd. of County Comm'rs v. Aerolineas Peruanasa, S.A., 307 F.2d 802, 806 (5th Cir. 1962) ("[I]n construing [a] treaty, as other contracts, we give consideration to the intent of the parties so as to carry out their manifest purpose."); Trans World Airline, In c. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984) ("A treaty is in the nature of a contract between na tions."); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 15 n.12 (1936) ("[A] treaty is a contract, and it must be so construed."); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) ("Treaties are contracts between independent nations."); Whitney v. Robertson, 124 U.S. 190, 194 ( 1888) ("A treaty is primarily a contract between two or more independent nations, and is so regarded by ~writers on public law.").
122. Harris v. United States, 768 F.2d 1240, 1242 (11th Cir. 1985) ("Internatio nal agreements should be construed more like contracts than statutes."), vacated and remanded, 479 U.S. 957 ~(1986).
123. Louis Henkin, The Treaty Makers and the Law s: The Niagara Reservation, 56 ~COLUM. L. REV. 1151, 11(1956).
124. 4 ELLIOT'S DEBATES, supra note 28, at 263 (statement of Pierce Butler) (emphasis added).
125. Id. at 264 (statement of Charles Pinckney).
126. 3 STORY, supra note 30, at 554.
127. Id.
128. Vázquez, supra note 22, at 1103.
129. THE FEDERALIST NO. 3, at 14 (John Jay) (Henry Cabot Lodge ed., 1891).
130. 4 ELLIOT'S DEBATES, supra note 28, at 158-59 (statement of William Davie).
131. 3 id. at 515 (statement of James Madison).
132. id. at 510 (state of Mr. Corbin).
133. 4 id. at 278 (statement of Charlesnckney).
134. THE FEDERALIST NO. 64, at 405 (John Jay) (Henry Cabot Lodge ed., 1891). Jay apparently took the position that treaties were "supreme" in a way that put them beyond the reach of Congress. Id. Jay's letter suggests that the notion that the Framers "did not anticipate and consider how to resolve potential conflict . . . between treaties and laws," as ass erted by Louis ~Henkin, is not entirely true. Henkin, supra note 6, at 175-76.
135. Flaherty, supra note 53, at 1312-13.
136. Id.
137. Lofgren, supra note 93, at 245. As Mr. Davie explained in the North Carolina debates, ~"We hav n with what little ceremony the states violated the peace wiGreat Bri tain. Congress had no power to enforce its observance." 4 ELLIOT'S DEBATES, supra note 28, at 160 ~(statement of William Davie).
138. Lofgren, supra note 93, at 245.
139. FLORENCE E. ALLEN, THE TREATY AS AN INSTRUMENT OF LEGISLATION 81-82 (1952).
140. Id. at 10.
141. Id. at 40.
142. Id. at 41. In contrast, Judge Allen argued that "[i]f the persons pro posed to be affected are not transitorily within the State, if they are permanently within the State and if what they do is done within the State, the jurisdiction is domestic." Id. at 41. Judge Allen also described domestic matters as "law[s] regulating the conduct of citizens and residents of any given country ~within its territory." Id. at 83.
143. For example, Allen thought that treaties with indefinite or long-term ob ligations resem~bled legislation more than contracts. Id. at 10.
144. Id. at 10-11.
145. Id. at 81-82.
146. Whitney v. Robertson, 124 U.S. 190, 194 (1888).
147. U.S. CONST. art. I, § 10, cl. 1.
148. Id. art. I, § 10, cl. 3.
149. See, e.g., Andrew A. Bruce, The Compacts and Agreements of States with One Another and with Foreign Powers, 2 MINN. L. REV. 500 (1918);
150. David E. En gdahl, Characterization of Interstate Arrangements: When is a Compact not a Compact?, 64 MICH. L. REV. 63 (1965);
151. Abra~ham C. Weinfeld, What Did the Fram f the Federal Constitution Mean by "Agreements or ~Cocts," 3 U. CHI. L. REV. 453 (1936).
152. See, e.g., Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840) (the onl y Supreme Court case ~involving a compact with a foreign power); nia v. Tennessee, 148 U.S. 5 03 (1893); United ~States Steel C. v. Multistate Tax Comm'n, 434 U.S. 452 (1978).
153. Gerald L. Neuman, The Global Dimension of RFRA, 14 CONST. COMMENT. 33, 47-48 ~(1997).
154. Weinfeld, supra note 143, at 464.
155. Laurence H. Tribe, Taking Text and Structure Seriously: Reflection s on Free-Form ~Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1266 (1995).
156. Id. (emphasis added). Professor Tribe suggests that in distinguishing between " treaties" and "mere" agreements, "one must consider the degree to which an agreement const rains federal or state sovereignty and submits United States citizens or political entities to the authority ~of bodies wholly or partially separa om the ordinary arms of federal or state government." ~Iat 1268.
157. David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791, 1904 (1998).
158. Id. at 1910. Golove does not argue for an expansive reading of state power to conclude international agreements under Compact Clause, but merely against Tribe's view that th e Treaty Clause is the exclusive grant of agreement-making power on matters that "seriously affe ct state ~or national sovereignty." Tribe, supra note 147, at 12 olove's argument against the exclusiv ity of the Treatywer is intended to support the constitutionality of the Congressional-Executive Agreement, a power that Tribe argues is not supported by an 'exclusive' reading of t he ~Treaty Clause. Id. at 1266-69.
159. 3 EMMERICH DE VATTEL, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW, bk. 2, ch. 12, 152-53 (Charles G. Fenwick trans., Oceana Publications 1964) (1758); Weinfeld, supra note 141, 457-60 (arguing that Vattel's "agreements, conventions, and arrangements" were the source for the Constitution's "agreements and compacts"). This article thus injected Vattel's ~notion that unlike treaties, which "cal 'a continuous performance of acts,'" compacts s hould be "perfected in a single act 'one for all.'" Golove, supra note 149, at 1910 & n.361 (citing DE ~VATTEL, supra).
160. 434 U.S. 452, 462 n.12 (1978).
161. See, e.g., Constitutional Law - Treaty Clause - District Court Holds That NAFTA Is a Valid Exercise of the Foreign Commerce Power, 113 HARV. L. REV. 1234, 1236-37 & nn.27-28 ~(2000).
162. Tribe, supra note 147, at 1266.
163. United States Steel Corp., 434 U.S. at 462. James Madison lent support to this conclusion, stating that the provisions of Article I, Section 10, were "within reasonings which are eith er so obvious, or have been so fully developed, that they may be passed over without remark." ~THE FEDERALIST NO. 44, at 280 (James Madison) (Henry Cabot Lodge ed., 1891).
164. DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 16-17 (1988).
165. Id. at 18.
166. Id. at 17.
167. Id. at 18 (emphasis added).
168. Id.
169. Id. at 19.
170. THE FEDERALIST NO. 43, at 276 (James Madison) (Henry Cabot Lodge ed., 1891).
171. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 291 (stat ement of James ~Madison).
172. LUTZ, supra note 156, at 137 (urging against this popular characterizatio n of Madison). Surprisingly, United States Steel Corp. v. Multistate Tax Commissioner, 434 U.S. 452, 460-73 (1978), with its compendious discussion of legal authority completely ignores thi s early, lucid distinction between "mere treaties" and "compacts." Commentators have also vir tually ignored this statement by James Madison. The most likely reason is that both commentat ors and courts have assumed that the meaning of "compact" in the sense of the Lockean soc ial compact is somehow unrelated to the term "compact" in the context of international agreements . This understanding fails to appreciate the fact that the Framers were creating a commu nity from more or less free and independent states. The Constitution was a compact, both in the Lockean sense ~and in the sense of international agreement.
173. THE FEDERALIST NO. 2, at 9 (John Jay) (Henry Cabot Lod ., 1891). "[A ]s a nation we have formed alliancesnd made treaties, and entered into various compacts and con ventions with foreign states." THE FEDERALIST NO. 4, at 17 (John Jay) (Henry Cabot Lodge ed., ~1891) (stating "private compacts" made by monarchs to secure their "objects merely personal").
174. THE FEDERALIST NO. 7, at 33 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891) (referring to the treaty of peace with Great Britain and cession of lands thereunder);
175. THE FEDERALIST NO. 22, at 135 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891) (descri bing the Articles of Confederation as a compact formed by the "consent of the several legislatures," and emphasizing the importance of the consent of the people, as opposed to the legislature, as the "pure, original fountain of all legitimate authority");
176. THE FEDERALIST NO. 24, at 142-43 (A lexander Hamilton) (Henry Cabot Lodge ed., 1891) (discussing compact between states on standing armies in times of peace);
177. THE FEDERALIST NO. 30, at 175 (Alexander Hamilton) (Hen ry Cabot Lodge ed., 1891) (describing the Articles of Confederation as a compact);
178. THE FEDERALIST NO. 69, at 433 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891) (using "compacts" as a general ~term for "treaties");
179. THE FEDERALIST NO. 85, at (Alexander Hamilton) (Henry Cabot ~Lodge ed., 1891) (rering to the Constitution as a "compact" among the states as "parties").
180. THE FEDERALIST NO. 15, at 87 (Alexander Hamilton) (Henry Cabot Lodge ed.,91).
181. THE FEDERALIST NO. 85, at 548 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891).
182. THE FEDERALIST NO. 30, at 238 (James Madison) (Henry Cabot Lodge ed., 1891) (referring to the Constitution as a compact);
183. THE FEDERALIST NO. 43, at 268 (James Madison) (Henry Cabot Lodge ed., 1891) (referring to the compact creating the federal district and providing for the rights of citizens therein); id. at 270 (stating that the "compact" forming a confedera cy or union implies that members have rights to ensure that the form of government of other members be "substantially maintained"); id. at 275 (stating that the Confederation "stands in t he ~solemn form of a compact among the States").
184. LUTZ, supra note 156, at 111-12.
185. Id. at 31. The author cites examples such as the FUNDAMENTAL ORDERS OF CONNECTICUT (1639), which was one of the earliest new world examples of federalism, establishing a common government for three towns while maintaining the individual town governments. Id. Th is pioneering document was followed by "the first truly federal system in America," the Organization of the Government of Rhode Island, where a compact brought several independent communities together in a common system. LUTZ, supra note 156, at 32.
186. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 364 (statement of Gouverneur Morris). Gouverneur Morris intended "to form a compact for the good of America. . . . He hoped and believed that all would enter into such a Compact." Id. Wh en Gouverneur Morris used the term "compact," he did not mean an insignificant agreement th at would not impinge on state sovereignty. After all, this is the same Mr. Morris who felt that "[t]he internal police, as it would be called & understood by the States ought to be infringed in many cases . . . ." Id. at 389.
187. But see 2 ELLIOT'S DEBATES, supra note 28, at 499 (statement of James Wilson) (arguing in the Pennsylvania Debates that the Constitution "is not a compact, or contract . . . [but] an ordinance and establishment of the people"). It seems likely that Wils on was not familiar with the Madisonian distinction between contract and compact. He was rig ht that the Constitution was not a contract (i.e., not a treaty engagement between the states), b ut ~parts company from the other Framers in saying it was not a compact.
188. U.S. CONST. art. I, § 10.
189. THE FRAMING AND RATIFICATION OF THE CONSTITUTION 115 (Leonard W. Le vy & Dennis J. Mahoney eds., 1987). In proposing the Virginia Plan, Edmund Randolph e xplained ~that a Confederation could never s the internal enforcement of treaties because a confedsh y; ~ation could not punish violations by its component members. Vázquez, supra note 22, at 1102.
190. See, e.g., LUTZ, supra note 156, at 43. For example, in FEDERALIST NO. 43, Hamilton seems to identify any governmental system where the "separate organisation of the members be not abolished" as a confederacy. THE FEDERALIST NO. 43 (Alexander Hamilton) (Henry Cab ot ~Lodge ed., 1891).
191. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 121 (statement of Geor ge ~Mason).
192. Akhil R. Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1446 (1987).
193. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 124 (statement of Jam es ~Madison).
194. Id. at 291 (statement of James Madison).
195. LUTZ, supra note 156, at 64.
196. THE FEDERALIST NO. 75, at 467 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891).
197. THE FEDERALIST NO. 44, at 277 (James Madison) (Henry Cabot Lodge ed., 1891).
198. Detlev F. Vagts, Comment, The Exclusive Treaty Power Revisited, 89 AM. J. INT'L L. 40, ~40 (1995).
199. Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 133, 163 n.126 (1998) ("The fact that the Constitution refers, for example, to 'Treat[ies], A lliance[s] or Confederation[s],' does not necessarily suggest that its drafters understood any pe rtinent distinction among the three; each is treated the same, and the repetition may hav e arisen ~only through an excess of caution." (citations omitted)).
200. Golove, supra note 149, at 1872. To the extent that Professor Golove believes that the phrase "agreements and compacts" includes treaties, we agree. We part company, how ever, in his assertion that treaties are a subset of only "agreements," (as opposed to agreem ents and compacts), see id., and his further conclusion that the presence of "agreements" in A rticle I would somehow make treaties legislative. His conclusion is particularly bewildering bec ause the ~only mention Article I makes of "treaties" is the clause prohibiting treaties to the states.
201. Id.
202. THE FEDERALIST NO. 64, at 405 (John Jay) (Henry Cabot Lodge ed., 1891).
203. Vázquez, supra note 22, at 1097.
204. Vázquez, supra note 9, at 1347.
205. The primary goals of international integration include: (1) reducti o the likelihood of war, (2) encouraging a division of lr in the economy free from artificial lines of sovereignty, (3) minimizing the division created by sovereign states that interfere w ith the proper representation of groups of people with common interests that transcend state bou ndaries (i.e., regions, ethnic groups, etc., that span several "states"), and (4) enlarging the sphere of "loyalty" to larger groups or to mankind as a whole, where no distinction is necessary - th e suffering of peoples under oppressive regimes abroad are no more irrelevant than the suffer ing of peoples within the same country. J.D.B. MILLER, THE WORLD OF STATES 17-18 (noti ng the various ~criticisms levied against state sovereignty that international action might silence).
206. The purposes of constitutionalism are to: (1) define a way of life, (2) create and/or define the people of the community so directed, (3) define the political institution s, the process of collective decision making to be instrumental in achieving the way of life, (4) defi ne the regime, the public, and citizenship, (5) establish the basis for the authority of the regime , (6) dis~tr political power, (7) structure conflict so it can be mand, and (8) limit politica l power. The most complex and important is number (8), which takes four major forms: (1) esta blishing the "rule of law" through constitutional procedures, (2) restricting lawmaking authority to powers approved by the people, (3) codifying limits in bills of rights, and (4) prohibitions on certain types of governmental authority on the basis of "higher law" or "inalienable rights." LUTZ, ~supra note 156, at 14-16.
207. The Commerce Clause might be viewed as this type of legislative power, as the expansive power of Congress to regulate commerce extends not only to interstate, but a lso to foreign ~commerce. See infra Part VI.D.2.
208. 247 F.2d 538 (D.C. Cir. 1957), vacated sub nom. American Public Power Assoc. v. Power ~Auth. of New York, 355 U.S. 64 (1957).
209. Id. at 539.
210. Id.
211. Id. at 540.
212. Id.
213. Id. at 541 (citations omitted).
214. Id. (citations omitted).
215. Id.
216. The analysis is somewhat more complicated in the actual Power Aut hority case, because ~one could either view the "performance" of the United States as amending the Federal Power ~Act, os foregoing the d pment of the waters until the passage of an act o f Congress. ofessor Henkin argued in 1956 that the Senate Reservation made no change in the Federal Power Act, see Henkin, supra note 117, at 1162, but ultimately this issue does not af fect the analysis. Whether the "promise" embodied in the reservation was to act or to forego acting, Canada's indifference to the provision undermines the legitimate basis for making inte rnal law by treaty. The reservation, whether act or promise to refrain from acting, was not dem anded by ~Canada as quid pro quo for any performance by Canada.
217. Power Auth., 247 F.2d at 541.
218. See, e.g., John Quigley, The Rule of Non-Inquiry and Human Rights Treaties, 45 CATH. U. L. REV. 1213, 1232 (1996) ("The court of appeals held that the statement was o f no effect to Canada, because it addressed only rights to the U.S. portion of the river. Because th e reservation affected only U.S. aspects of river usage, it was not a true reservation and t hus, was not a valid part of the treaty.") Quigley reads the Power Authority opinion as concludin g that because of the domestic nature of the subject matter, the reservation was of no effect to Ca nada. But, the court did the opposite; it concluded that because both Canada and the United S tates regarded the reservation as "neither affecting nor intended to affect" Canada's rights or ob ligations, the ~Senate's attachment was a "purely municipal matter." Power Auth., 247 F.2d at 542.
219. One could imagine, for example, that Canada might regard the Powe r Authority as overly zealous about developing the River, and might trust Congress to take in to account the scenic and touristic value of the River to a greater extent than the Power Au thority. Under those circumstances, Canada would have bargained for the provision, and it wou ld be valid as ~internal law, under a contract approach to treaty.
220. Pub. L. No. 85-, 71 Stat. 401 (1957) (authorizing Federal Power Commission to license the Power Authority of the State of New York to construct power projects u sing the United States' share of the Niagara River). Because the reservation provided that U.S deve lopment of the waters could not commence until an act of Congress so provided, the reser n's ~constitutionality became moot when the legislation was eted.
221. Power Auth., 247 F.2d at 543 ("We construe the reservation as an expression of t he Senate's desires and not a part of the treaty. We do not decide the constitutional question." ). This article's contractual approach to treaty, like the analysis of the Power Authority case, cou ld be classified either as being a matter of constitutional law or as an approach to treaty interpretation. Non-contractual provisions that empower Congress under the Necessary and Prop er Clause could either be called "unconstitutional," or could simply be regarded as non-treaty provisions by interpretive methods. These two approaches are functionally identical with respect to the non-contractual provision; both approaches regard the non-contractual provision as not being part of a "treaty" within the meaning of the Constitution, and efore not law of the land. ~The significant distinction been the two, faced by the court in the Power Authority case, is whether the remainder of the treaty, minus the non-contractual provision, is still a "treaty" under the Constitution. That question is beyond this article's scope.
222. Edwards v. Carter, 580 F.2d 1055, 1064 (D.C. Cir. 1978) (holding that the enumerated power of Congress to dispose of United States property in Article IV, Section 3 did not prevent a treaty from disposing of United States property in the Panama Canal Zone). Thomas Jefferson, however, seems to have thought that the Treaty Power excluded the powers given to Congress as a whole and not shared with the executive. See JEFFERSON, supra note 26, at 420-2 1. Today, of course, Jefferson's restriction would divest the President and Senate of the power to make almost any treaties whatsoever, as almost any treaty would deal with matters in which t he ~House is competent to legislate.
223. This check is necessary because of the destabilizing effect of the Seventeenth Amendment on the balance of power between the Senate and the states. See infra Part V.A.
224. 252 U.S. 416 (1920).
225. Id. at 433 (citing Andrews v. Andrews, 188 U.S. 14, 33 (1903)).
226. See infra text accompanying notes 218-23.
227. Henkin, supra note 117, at 1164. Henkin wrote this article before the Power Authority decision, and some might argue that Judge Bazelon would disagree that the reservation could be treated as having been written into the treaty originally. Moreover, the reservation sti ll would have imposed no obligations and conferred no rights on Canada, and would have been just as ~ineffectual as a contractual provision of the treaty.
228. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, O.J. (C 340) 3 ~(1997).
229. Id. art. 3b (as in effect 1991) (now article 5).
230. Thomas Jefferson also endorsed a subsidiarity limitation in his Manual on Parliamentary Practice, writing that treaty should encompass "only those subjects which . . . can not other~wise be regulated." JEFFERSON, supra note 26, at 401-02.
231. Flaherty, supra note 53, at 1304.
232. United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. M'Cullagh, 221 ~F. 288 (D. Kan. 1915).
233. Missouri v. Holland, 252 U.S. 416, 432 (1920).
234. Id. at 418 (reprinting argument for appellant).
235. Id. (reprinting argument for appellant).
236. Id. at 419 (reprinting argument for appellant).
237. Id. at 421 (reprinting argument for appellant).
238. Id. at 422 (reprinting argument for appellant).
239. Id. at 435.
240. Id. at 433 (quoting Andrews v. Andrews, 188 U.S. 14, 33 (1903)).
241. 3 ELLIOT'S DEBATES, supra note 28, at 507 (statement of George Mason). The subsidiarity approach is one of necessity, but necessity from the states' point of view (of whom the Senate is the "agent"). Thus, the mere fact that Congress is incompetent to act in a matter does ~not create "necessity."
242. Holland, 252 U.S. at 433.
243. Id. at 435.
244. ALLEN, supra note 133, at 26.
245. Garcia v. San Antonio Metro. Transit Aut 69 U.S. 528, 552 (1985).
246. Taylor v. Morton, 23 Fas. 784, 787 (D. Mass. 1855) (No. 13, 79 9). Justice Curtice, ~sitting in circuit court, wrote Is it a judicial question, whether a treaty with a foreign soverei gn has been violated by him . . . . I apprehend not. These powers have not been co nfided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. They bel ong to diplomacy and ~legislation, and not to the administration of existing laws. Id. See also C. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 1 948) (noting that ~the "very nature of executive isions as to foreign policy is political, not judicial").
247. LUTZ, supra note 156, at 85-86.
248. Kings were in general more interested in the welfare of their country than any other individual in it, because the prosperity of the country tended to in crease the lustre of the crown, and a king never could receive a sufficient compensa tion for the sale of his kingdoms. . . . Hence kings are less liable to foreign bribery and corruption than any other set of men, because no bribe that could be given t hem could compensate ~the loss they must necessarily sustai injuring their dominions . . . . 4 ELLIOT'S DEBATES, sa note 28, at 264 (statement of Charles Pinckney).
249. Id. at 264.
250. No fewer than nine of the Federalist articles specifically discuss the "virtue" (or lack thereof) that Americans could expect from their elected representatives. See, e.g., THE FEDERALIST NO. 6, at 32 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891) ("Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?"). Rather than relying on ~"perfect wisdom," the Framers set a tension between the coordina anches to gu ard against corruption.
251. See, e.g., THE FEDERALISO. 66, at 48 (Alexander Hamilton) (Henry Cabot Lodge ~ed., 1891) ("We may thus far count upon their pride, if not upon their virtue.").
252. LUTZ, supra note 156, at 156.
253. Id. at 160.
254. Alexander Hamilton concisely summarized the Federalist approach when he sai d of the federal-state relationship, "Men love power . . . . The States have constantly shewn a dis position ~rather to re the powers delegated by them than to part with more, or to give eft to wh at they had parted with. The ambition of their demagogues is known to hate the controul of the Gen[eral] Government." DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 217 (statement of Alexander Hamilton).
255. Jonathan R. Macey, Competing Economic Views of the Constitution, 56 GEO. WASH. L. ~REV. 50, 56 n.16 (1987).
256. Id. But see generally CHARLES A. BEARD, AN ECONOMIC INTERPRETATIO N OF THE CONSTITUTION OF THE UNITED STATES (1913), which argues that the Constitution was designed ~by interest groups motivated by personal financial interests.
257. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 446 (stat ement of ~Gouverneur Morris).
258. Id. at 276 (statement of George Mason).
259. Id. at 272.
260. Id. at 606 (statement of James Madison) (emphasis add See also 3 ELLIOT'S DE BATES, supra note 28, at 510 (stment of Mr. Corbin) (stating that the Senate "represent[s] t he ~states in their individual capacities").
261. 4 id. at 28 (statement of Richard Spaight) (emphasis added).
262. Bicameral legislatures existed in eleven of the thirteen Colonies prior to the Revolutio n. In those Colonies, the lower house was popularly elected, and the upper house (known as t he council), was appointed by the King (in the royal colonies), the colonial proprietor (in the proprietary colonies), or elected by the people or the lower house (in the popular colonies). See Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth ~Amendment, 91 NW. U. L. REV. 500, 507 (1997). The Articles of Confederation had permitted the state legislatures to choose delegates to the unicameral Congress or permit their popular ~election, and all but two of the state legislatures kept that power for themselves. Id. at 508.
263. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 340 (statement of James ~Madison).
264. But see Lofgren, supra note 93, at 254-56 (arguing that the Framers regarded th e Senate ~as the treaty-maker, with "the President's role as the narrow one of checking the Senate").
265. THE FEDERALIST NO. 26, at 169 (Alexander Hamilton) (Henry Cabot Lodge ed., 1891).
266. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 214 (statement o f Edmund ~Randolph).
267. THE FEDERALIST NO. 44, at 283 (James Madison) (Henry Cabot Lodge ed., 1891).
268. U.S. CONST. amend. XVII.
269. Flaherty, supra note 53, at 1308.
270. INS v. Chadha, 462 U.S. 919, 951 (1983).
271. Lori F. Damrosch, Politics Across Borders: Nonintervention and Nonforc ible Influence ~Over Domestic Affairs, 83 AM. J. INT'L L. 1, 13-28 (1989).
272. Id. at 28-34.
273. Id. at 1-4.
274. RESTATEMENT (THIRD), supra note 16, § 703 cmt. f.
275. Damrosch, supra note 255, at 46-47.
276. Lloyd N. Cutler, The Internationalisation of Human Rights, U. I. REV. 575, 581-82 ~(1990).
277. Constitutionalizitreaties present more persuasive rationales for reciproc al obligations, which relate to creating a sense of community and establishing a sense of inte rnational rule of law for certain transcendent norms of state conduct. Still, a hazard exist s whenever the United States binds itself to a reciprocal agreement to secure another nation 's performance when no true "necessity" of such internal legislation exists. Overriding state legisla tive processes ~by treaty should occur only when Holland subsidiarity factors exist.
278. Cutler, supra note 260, at 588.
279. David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, ~954-55 (1994).
280. David Kennedy, New Approaches to Comparative Law: Comparativism an d Interna~tional Governance, 1997 UTAH L. REV. 545, 626-27.
281. CHRISTINE CHINKIN, THIRD PARTIES IN INTERNATIONAL LAW 122 (1993).
282. See, e.g., Golove, supra note 149, at 1809. Anne-Marie Slaughter epito mizes this position: "The treaty-making process is an alternative legislative process to be car ried out in conjunction with a foreign nation." Letter from Anne-Marie Slaughter, Pr ofessor, Harvard Law School, to Sen. Ernest F. Hollings 2-10 (Oct. 18, 1994), in Tribe, supra n ote 147, at 1268. Of ~course, some commentators have noted the " oral imperialism" problem of a few natio ns "legy; islating" for the whole world through multilateral conventions, coercing states i nto compliance ~with norms based on consensus, rather than consent. Watson, supra note 19, at 843.
283. See supra notes 173-83 and accompanying text.
284. See infra Part VI.D.1.
285. Halberstam, supra note 88, at 55.
286. In South Carolina, the issue of whether treaty was legislative in nature arose, mainly because of Lenoir's objection to "legislative" power being given to the President in making treaties, to which Richard Spaight replied that the Treaty Power "was not consider ed a legislative act at all." 4 ELLIOT'S DEBATES, supra note 28, at 27 (statement of Richar d Spaight). Maclaine added that "laws, or legislative acts, operated upon individuals, but that treaties upon states," and therefore that "the Presidenid not act in this case as a legislator, but rather in his ~executive capacity." Id. at 28 (statement of Mr. Maclaine).
287. Sloss, supra note 19, at 187.
288. Id. at 189-97 (offering possible reasons for the seemingly superfluous pr esence of non-~self-executing declarations in treaties rendered domestically inert by reserv s).
289. See supra Part II.D.
290. Treaties and Executivgreements: Hearings on S.J. Res. 1 & 43 Before a Subcomm. of ~the Senate Judiciary Comm., 83d Cong. (1953).
291. Sloss, supra note 19, at 174 n.236.
292. Id. at 183.
293. Id. at 183-88.
294. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 4-5, at 227 (2d ed. 1988).
295. See supra Parts V.A-B.
296. 138 CONG. REC. 8071 (1992).
297. Other federal nations, particularly Austra lia, have used similar understandings to limit incursion on state authority. Peter J. Spiro, Human Rights on the Eve of the Next Century: Aspects of Human Rights Implementation: The States and International ~Human Rights, 66 FORDHAM L. REV. 567, 579 (1997).
298. Perhaps the most striking example is the United States' failure to ratify the Convention ~on the Rights of the Child, which has ved almost universal acceptance. Id. at 575-76.
299. The UnitStates eventually ratified the Convention on the Elimination of A ll Forms of Racial Discrimination and the Convention on the Prevention and Punishment of the Crime of ~Genocide after substantial delays. Id. at 575-76 & n.24.
300. But see Vázquez, supra note 9, at 1356 (arguing that the "federalism" understanding attached to the ICCPR acknowledged the federal government's constitutional author ity to implement the treaty, but merely expressed Congress's intention not to federally legislate in areas ~it has not previously regulated).
301. Printz v. United States, 521 U.S. 898, 905 (1997). But see Flaherty, supra note 53, at 1290-97 (describing this aspect of the Printz Court's reasoning as resting on a "shaky ~foundation").
302. Even internationalists seem to conce is possibility. See, e.g., Spiro, supr a note 280, ~at 576. 86 RESTATEMENT (THIRD), supra note 16, § 302 cmt. c (citation omitted).
303. See supra Part II.D. The ALI's abandonment of the international concern req uirement probably acknowledges the hopelessness of distinguishing international concern from the now-disfavored subject matter restriction. The unsatisfying idea of claiming that international treaties need not deal with matters of international concern was more elegantly disposed of by j udges in Australia, where an "international concern" requirement for treaties has also been su ggested. Even although the Australian judges, like the writers of the Restatement, hoped to e mpty the international concern requirement of virtually any substantive meaning, they at least ackn owledged its existence by holding that the mere existence of an international treaty itself est ablishes ~ad e "international concern" for there to be a treaty. Aew Byrnes & Hilary Charlesworth, New International Law in National Systems: Federalism and the Internationa! Legal Orde r: Recent Developments in Australia, 79 AM. J. INT'L L. 622, 628-29 (1985) (discussing the outco me of Koowata v. Bjelke-Peterson, 56 A.L.J.R. 625, 627 (1982)). This approach at least leaves ro om for invalidating truly bad-faith treaty-making where obligations are "accepted under a ~'colourable' attempt to convert a matter of international concern into an external affair. This is where a treaty obligation has been assumed merely as a means of conferring legislativ e power upon the Commonwealth Parliament." Id. at 629 n.38 (citing Koowarta v. Bjelke-Peter sen, 56 ~A.L.J.R. 625, 664 (1982)).
304. The term "executive agreement" refers to two separate types of agreement, nei ther of which is explicitly permitted by the Constitution. The first type is an agreement entered into by the President alone. The second is an agreement entered into by the President pursua nt to a ~delegation of ority by an act or a joint resolution of Congress. THOMAS M.ANCK & MICHAEL J. GLENNON, FOREIGN RELATIONS AND NATIONAL SECURITY LAW 412 (2d ed. 1993) . ~In this article, I use the term "congressional-executive agreement" to refer to the latter form.
305. 3 ELLIOT'S DEBATES, supra note 28, at 347 (statement of James Madison) (stating that "every treaty which can be made" requires two thirds of the Senate and the President); id. at 353 (statement of Patrick Henry) ("[There are] two bodies, or branches, which must concur to mak e a treaty . . . . They will combine, and be as one."); id. at 354-55 (arguing that House participatio n ~in treaty making would "break through their balances and checks").
306. For example, when Mr. Corbin suggested during the Virginia Ratifying Convention that "[t]reaties are generally of a commercial nature," and that participation of the House woul d therefore be necessary, a parenthetical note indicates that "[h]ere a storm arose, which was s o violent as to compel Mr. Corbin to desist, and the committee to rise." Id. at 365 (statement o f ~Mr. Corbin).
307. Golove, supra note 149, at 1800.
308. I say "enumerated legislative powers" rather than simply "legislative powers" because some proponents of the congressional-executive agreement regard that device as a "legi slative ~power" of Congress that is not derived from the Article II Treaty Power. Id. at 1866-77.
309. 505 U.S. 144 (1992).
310. 521 U.S. 898 (1997).
311. Unfortunately the scope of "commandeering" itself is still uncertain under the Supreme Court's jurisprudence. Vázquez, supra note 9, at 1344-50. The Court declined to expa nd upon the anti-commandeering prohibition in the recent decision of Reno v. Condon, 528 U.S. 141 (2000), but did make it clear that the commandeering prohibition reaches only instance s where the federal government "require[s] the States in their sovereign capacity to regulate th eir own ~citizens," id. at 151.
312. Bradley, a note 27, at 409.
313. Neuman, supra note 145, at 52.
314. See HENKIN, supra note 7, at 169 ("To the extent that there is a constitutional immuni ty for the states from federal action that purports to command or co-opt the state legislatures or state officials, that immunity presumably applies to regulation by treaty as well as by statute ~. . . .").
315. Vázquez, supra note 9, at 1347.
316. Id. (emphasis added).
317. DEBATES IN THE FEDERAL CONVENTION, supra note 98, at 377 (statement of Rufus King) ("There never will be a case in which it will act as a federal Government on the States and ~not on the individual citizens"). Madison concurred, arguing that In all cases where the Government is to act on the States as such, in like m anner as Congress now act on them let the States be represented and the votes b e equal. This was the true ground of compromise if there was any ground at all . But he denied that there was any ground. He called for a single instance in w hich the General Government was not to operate on the people individually. The pract icability of making laws, with coercive sanctions, for the States as Political bo des, had been exploded on all hands. ~Id. at 380.
318. Printz v. United States, 521 U.S. 898, 935 (1997).
319. See, e.g., Asakura v. City of Seattle, 265 U.S. 232 (1923); see also Vázquez, supra note 9, at 1347-60 (arguing that the narrow view of "commandeering" in New York and Printz w ould not ~threaten treaties imposing obligations on states).
320. John M. Raymond & Barbara J. Frischholz, Lawyers Who Established Inte rnational Law ~in the United States, 1776-1914, 76 AM. J. INT'L L. 802, 813 (1982).
321. kin, supra note 87, at 35.
322. Id. at 36.
323. Wats supra note 19, at 806.
324. Id. at 824.
325. Id. at 825.
326. Id. at 824-25.
327. Vázquez, supra note 9, at 1357.
328. Henkin, supra note 87, at 40 n.34.
329. Spiro, supra note 280, at 570-72. The major areas of criticism have been pris on conditions, police brutality, and the death penalty, particularly as applied to juveniles. Id. at 570-72 & ~n.6.
330. U.N. CHARTER arts. 55-56.
331. Neuman, supra note 145, at 46-47.
332. See, e.g., Vázquez, supra note 22, at 1082.
333. Id. at 1089-90.
334. See, e.g., 3 ELLIOT'S DEBATES, supra note 27, at 504 (statement of Edmund Randolph) ("I conceive that neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty. The lives and properties of European subjects are no t affected by ~treaties, which are binding on the aggregate community in its political, social capacity.").
335. See supra Part III.B.
336. See Seaver v. Ransom, 120 N.E. 639, 640 (N.Y. 1918).
337. RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981).
338. Vikingstad v. Baggott, 282 P.2d 824, 826 (Wash. 1955).
339. Under international law, it is the contracting foreign government as the right to complain about a violation. See, e.g.,ited States v. Condero, 668 F.2d 32, 38 (1st Cir. 1981) ~(dealing with extradition treaties).
340. See supra Part IV.C.
341. See supra Part IV.C.
342. The true benefit to simultaneous performance in this context, unlike the m igratory bird context, is not that the aim of the treaty could better be achieved, but rather the building of a ~community, which is the province of compact.
343. 596 U.N.T.S. 262.
344. Victor M. Uribe, Consuls at Work: Universal Instruments of Human Rights and Consular ~Protection in the Context of Criminal Justice, 19 HOUS. J. INT'L L. 375, 387 (1997).
345. Reid v. Covert, 354 U.S. 1, 15 (1957); Executive Agreement Resp ecting Jurisdiction ~Over Criminal Offenses Committed by Armed Forces, July 27, 1942, 57 Stat. 1193.
346. Leonard W. Levy, Introduction: American Constitutional History, 1776-89, in THE FRAMING AND RATIFICATION OF THE CONSTITUTION 1, 9 (Leonard W. Levy & Dennis J. Maho~ney eds., 1987).
347. See supra Part IV.C.
348. Missouri v. Holland, 252 U.S. 416, 435 (1920).
349. Spiro, supra note 280, at 580.
350. Id. at 581-82 & n.52.
351. Id. at 583-8
352. See, e.g., Timothy C. Blank, A Proposed Application ofe Compact Clause, 66 B.U. L. ~REV. 1067 (1986); Spiro, supra note 280, at 590-96.
353. Spiro, supra note 280, at 592.
354. Watson, supra note 19, at 850.
355. HENKIN, supra note 7, at 149.
356. MILLER, supra note 190, at 90.
357. Henkin ra note 6, at 5.
358. Thomas M. Franck, Legitimacy in the ernational System, 82 AM. J. INT'L L. 705, 712 ~(1988) (citations omitted).
359. INS v. Chadha, 462 U.S. 919, 944 (1983).
360. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995).