Description
This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President. In 1945, the U.S. 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 Charter's human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support 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. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The exception permits state governments to violate NSE treaties without authorization from the federal political branches. The death of treaty supremacy has significant implications for U.S. foreign policy and for U.S. compliance with its treaty obligations.
Table of Contents
List of TablesAcknowledgmentsIntroductionPart One: Treaty Supremacy at the FoundingChapter One: The Origins of Treaty Supremacy, 1776-1787Chapter Two: State Ratification DebatesChapter Three: Treaty Supremacy in the 1790sPart Two: Treaty Supremacy from 1800 to 1945Chapter Four: Foster v. NeilsonChapter Five: Treaties and State LawChapter Six: Self-Execution in the Political BranchesChapter Seven: Self-Execution in the Federal CourtsChapter Eight: Seeds of ChangePart Three: The Human Rights RevolutionChapter Nine: Human Rights Activism in the United States: 1946-48Chapter Ten: The Nationalists Strike Back: 1949-51Chapter Eleven: Fujii, Brown and Bricker: 1952-54Chapter Twelve: Business as Usual in the Courts: 1946-65Chapter Thirteen: The American Law Institute and the Restatement of Foreign Relations LawPart Four: Treaty Supremacy and Constitutional ChangeChapter Fourteen: Treaty Supremacy in the 21st CenturyChapter Fifteen: Invisible Constitutional ChangeList of Abbreviations Used in EndnotesEndnotesBibliographyIndex
