Framers & International Law

Volokh, Eugene VOLOKH at MAIL.LAW.UCLA.EDU
Mon Nov 11 10:28:34 PST 2002


    Well, I much appreciate Prof. Martin's pointing us to these sources (the
Jay Federalist and the Continental Congress letter, also written by Jay),
which do seem to support his view.  I am not an expert on the original
meaning of the treaty provisions, so I would love to hear what others think
about it.  (In particular, I'm curious whether Jay saw *domestic courts* as
being empowered to enforce treaties that Congress had tried to cancel --
consider the line in the Continental Congress letter stating that "But
although contracting Nations cannot like individuals avail themselves of
Courts of Justice to compel performance of contracts, yet an appeal to
Heaven and to Arms, is always in their power and often in their
Inclination.").

    It does, however, seem quite clear that the contrary rule was adopted by
the Supreme Court by the 1870s, and by lower courts by the 1860s.  Justice
Story, in his Commentaries on the Constitution sec. 1832 (1833), takes the
same view, and in a context quite respectful of the importance of treaties:
"In regard to treaties, there is equal reason, why they should be held, when
made, to be the supreme law of the land. It is to be considered, that
treaties Constitute solemn compacts of binding obligation among nations; and
unless they are scrupulously obeyed, and enforced, no foreign nation would
consent to negotiate with us; or if it did, any want of strict fidelity on
our part in the discharge of the treaty stipulations would be visited by
reprisals, or war. It is, therefore, indispensable, that they should have
the obligation and force of a law, that they may be executed by .the
judicial power, and be obeyed like other laws. ***This will not prevent them
from being cancelled or abrogated by the nation upon grave and suitable
occasions; for it will not be disputed, that they are subject to the
legislative power, and may be repealed, like other laws, at its pleasure;***
or they may be varied by new treaties. Still, while they do subsist, they
ought to have a positive binding efficacy as laws upon all the states, and
all the citizens of the states."  Farrar's 1868 constitutional law treatise
echoes this (p. 249), as does

    Eugene

-----Original Message-----
From: Francisco Martin [mailto:ricenter at IGC.ORG]
Sent: Monday, November 11, 2002 8:59 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Framers & International Law


Would anyone care to comment on the validity of the Last-in-Time Rule (in
regard to treaties) in light of the following excerpts from the Federalist
Papers and the Continental Congress?

"Others, though content that treaties should be made in the mode proposed
[i.e., by President and Senate], are averse to their being the SUPREME laws
of the land. They insist, and profess to believe, that treaties like acts of
assembly, should be repealable at pleasure. This idea seems to be new and
peculiar to this country, but new errors, as well as new truths, often
appear. These gentlemen would do well to reflect that a treaty is only
another name for a bargain, and that it would be impossible to find a nation
who would make any bargain with us, which should be binding on them
ABSOLUTELY, but on us only so long and so far as we may think proper to be
bound by it. They who make laws may, without doubt, amend or repeal them;
and it will not be disputed that they who make treaties may alter or cancel
them; but still let us not forget that treaties are made, not by only one of
the contracting parties, but by both; and consequently, that as the consent
of both! was essential to their formation at first, so must it ever
afterwards be to alter or cancel them. The proposed Constitution, therefore,
has not in the least extended the obligation of treaties. They are just as
binding, and just as far beyond the lawful reach of legislative acts now, as
they will be at any future period, or under any form of government."
Federalist No. 64 (Jay).

"We have deliberately and dispassionately examined and considered the
several facts and matters urged by Britain as infractions of the treaty of
peace on the part of America, and we regret that in some of the States too
little attention appears to have been paid to the public faith pledged by
that treaty. Not only the obvious dictates of religion, morality and
national honor, but also the first principles of good policy, demand a
candid and punctual compliance with engagements constitutionally and fairly
made. Our national constitution having committed to us the management of the
national concerns with foreign States and powers, it is our duty to take
care that all the rights which they ought to enjoy within our Jurisdiction
by the laws of nations and the faith of treaties remain inviolate. . . . For
as the Legislature only which constitutionally passes a law has power to
revise and amend it, so the sovereigns only who are parties to the treaty
have power, by mutual consent! and posterior Articles to correct or explain
it. . . . As the treaty of peace so far as it respects the matters and
things provided for in it, is a Law to the United States, which cannot by
all or any of them be altered or changed, . . . " Journals of the
Continental Congress 177 (13 April 1787) (letter to Great Britain).

And as for the relative limits on Congressional power  regarding treaties
under the Articles of Confederation and the Constitution:  "The powers
relating to . . . treaties . . . are all vested in the existing Congress by
the articles of Confederation. The proposed change [by the Constitution]
does not enlarge these powers; it only substitutes a more effectual mode of
administering them." Federalist No. 45 (Madison)

Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
 <mailto:> "><ricenter at rightsinternational.org>


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