Boerne and Treaty Power

[Steven D. Jamar]

>
> Not knowing much of anything about treaty power/law, I ask in humble
> ignorance:  Might the Court hold that a "RFRA II--The Lost World" statute
> is not a permissible implementation of the C&P Covenant?  (Would this
> require the Court to change the existing law of treaty power?)

To be too general about it, anything that is the proper subject matter of a
treaty can be a treaty.  And any law implementing the treaty is lawful,
unless it isn't.  Pretty much the only "isn't" comes from an implementation
that would violate the constitution.  For example, if the U.S. had not
reserved against Article 20 (for convenience, those not familiar with it
can think of it as" the hate speech provision" that requires states parties
to the convention to ban hate speech), it is clear that both the article
itself and any legislation seeking to implement it would be
unconstitutional (enhanced sentencing or criminal level excepted).
Similarly if the U.S. were to adopt what passes as international due
process in criminal cases, that law would, because it provides less
protection than the U.S. constitution, as interpreted, be unconstitutional,
though an implementation of a valid treaty.

If a treaty were used as a subterfuge to do something which really the
treaty doesn't support - that is, if the implementing statute really did
not arise from the treaty itself, then I suppose one could expect the court
to declare the statute an impermissible implementation of the C&P treaty.
But, it is a bit hard to think of what that would be.  If RFRA is a
permissible "implementation" by Congress of the free exercise clause of the
first amendment with respect to federal law, then it is hard to see how
RFRA II - the Lost World would be impermissible under the C&P treaty
language about freedom of conscience and freedom of religion.

There is an irony here for those in the HR community - our argument has
been that the treaty is self-executing and does not need implementing
legislation.  Congress ratified it saying it was not self-executing and
does need implementing legislation.  There is some question whether
Congress can appropriate this court-made doctrine of convenience
(self-executing) for itself, especially in the area of human rights.

Nonetheless, it would be quite a stretch to take the C&P language and find
a RFRA standard in it - though it would be possible to find language that
may in some settings require some accommodations - not so unlike current
free exercise jurisprudence - and maybe even more.

A final ? caveat - the law of treaties in the U.S. is quite open and
pliable - in this respect not so unlike constitutional jurisprudence -and
the court could do any number of things without a sea change in the law of
treaties.

But, as to the narrow question David Cruz asked - no, the court really
could not, under current law, say that a RFRA-like law was not warranted as
an implementation of the treaty, at least not in a simplistic sense.  One
can easily imagine the court continuing its well-known hostility to
international law and foreign standards and somehow saying that, contrary
to all of HR law since Nuremberg, the C&P treaty just obligates the U.S.
internationally and has no internal meaning and so the implementation
internally is improper.  But this would be a(nother) scandalous flaunting
of international obligations and norms and treaty law, and so I would
expect the court to find a more subtle way of dissing RFRA.

Cheers,
Steve Jamar


Steven D. Jamar
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar at law.howard.edu

The more you know, the more you know you don't know.