"BUT MAYBE EVERYTHING THAT DIES SOMEDAY COMES BACK".

• Author: Flaherty, Martin S.
• Position: THE DEATH OF TREATY SUPREMACY: AN INVISIBLE CONSTITUTIONAL CHANGE, by David L. Sloss - Book review

THE DEATH OF TREATY SUPREMACY: AN INVISIBLE CONSTITUTIONAL CHANGE. By David L. Sloss. (2) New York: Oxford University Press. 2016 pp. xiv + 472. $85.00.

Among the latest challenges to our constitutional order is the swift rise of a "post-factual" culture. Politicians, pundits, bloggers, and the tweetocracy now regularly do more than make arguments unsupported by facts or even outright lie. Now they proudly advance views based on "alternative facts" that show an indifference to the very idea of truth versus falsehood. As the philosopher Harry Frankfurt wrote, this is especially pernicious, because it undermines the basis for almost any discourse. (4) As many have pointed out in the last year, democratic debate on matters of public policy simply cannot proceed unless there is some widespread agreement that some matters constitute facts which form a basis to govern and some matters are fiction, on which not so much.

An uncomfortable truth is that a similar phenomenon has long characterized perhaps the most heavily footnoted, elite, academic speciality there is: legal scholarship. The lack of peer review, the urgent need for timely publication, and perhaps a preference for theory all offer temptations to cut corners. Law's distinctily adversarial nature adds an incentive to employ whatever convinces, regardless of its grounding in reality. Perhaps nowhere does this remain truer than in the use of history in constitutional interpretation. (5)

David Sloss's exemplary The Death of Treaty Supremacy offers an antidote and a challenge. Typical of Professor Sloss's work, it reflects prodigious research capable of recovering forgotten chapters of constitutional history and challenging the conventional wisdom. The Death of Treaty Supremacy does both. Today, standard doctrine holds that "non-self-executing" treaties that require implementation by Congress cannot themselves bind the states, notwithstanding the Supremacy Clause's declaration that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (6) Sloss's antidote demonstrates that for over a century and a half, this was not the case. Instead, the Supremacy Clause meant what it said. All treaties, whether requiring congressional implementation or not, bound state action. Change, almost unnoticed by the general public, came after World War II, when the United Nations Charter and other treaties protecting human rights, among other things, threatened Jim Crow in the South. Congress responded by floating what became known as the "Bricker Amendment," which would have eliminated this treaty supremacy rule. The amendment went down to narrow defeat, but with the cost of accepting a new constitutional understanding--that the treaty supremacy rule is an optional rule that applies only to "self-executing" treaties.

With this account comes the challenge. On what theory is the death of treaty supremacy legitimate? Sloss has identified one of the few specific doctrines that real facts indicate commanded a near consensus among the Founders. He has also shown how that doctrine prevailed for over 150 years. Its death, however, did not obviously come through any conventional or even unconventional means of constitutional amendment. The change did not come through Article V. Nor did it obviously occur through various theories of informal constitutional change. There has yet to be fundamental evolution in relevant constitutional custom or tradition, still less one manifested by a consistent line of case law. Nor can what occurred be easily deemed even a minor "constitutional moment." One reason informal theories run into trouble, as Sloss points out, is the paucity of contemporary debate around treaty supremacy's demise. This is in part what he means by an "invisible constitutional change" (p. 8).

This dramatic departure from text and history is not without certain ironies. In recent years, conservative "sovereigntists," who are skeptical about receiving international norms into U.S. domestic law, have likewise been conservative with respect to constitutional interpretation. More often than not they have at least attempted--often poorly--to ground their positions with some mixture of text, original understanding, and ongoing constitutional tradition. "Internationalists," with certain exceptions, have often entered the lists with arguments based upon the imperatives of modern international relations. (7) Sloss marshalls an exceptionally rigorous historical account to make the case for treaty supremacy overwelming. The Death of Treaty Supremacy may not fully answer all the defenders of this particular execution. It does, however, shift the burden to those who seek to defend the de facto amendment as de jure.

THE SUPREME LAW FORMERLY KNOWN AS TREATY SUPREMACY

The metaphorical Death of Treaty Supremacy begins with the real death of Ernesto Medellin. On August 8, 2008, the State of Texas executed Medellin, a Mexican national convicted of capital murder. That execution violated the provisions of at least two treaties to which the United States is a party. First was the somewhat obscure Vienna Convention on Consular Relations. Article 36 of the Vienna Consular Convention holds that if a detained foreign national requests, "the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner." (8) In plain English, nationals arrested in one state have a right to be informed that they can meet with members of their State's consulate. Typical of most U.S. domestic states, Texas never conveyed this information to Medellin. Unaware of the treaty, Medellin not surprisingly failed to raise it at trial or on direct appeal. When, with more informed counsel, he sought to do so on habeas, the Texas courts ruled that he had effectively waived the opportunity by his failure to raise the issue beforehand. (9) In similar circumstances, the Supreme Court had previously ruled that reliance on a domestic U.S. state's "procedural default rule" did not constitute a violation of the Convention. (10)

The International Court of Justice had already registered its disagreement with the United States' earlier position. (11) In a case known as Avena, Mexico brought an action against the United States on behalf of 51 Mexicans on death row in the United States who had not been informed of their Vienna Convention rights, including Medellin. (12) The ICJ held that the procedural default rule could not preclude review of cases in which the Vienna Convention had been violated. To the contrary, the Court directed the United States to reopen the conviction before a non-executive body. Relying on this decision, Medellin at the Supreme Court argued that the United States had to provide him with such a review. Further, he pointed to Article 94 of the U.N. Charter, the other relevant treaty. In particular, Medellin relied on Article 94, which states that "[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." (13)

The Supreme Court rejected Medellin's claim. Among other things, it held that the U.N. Charter provision was not "self-executing," and so an Act of Congress was needed for ICJ decisions involving the United States to apply domestically. As such, the Charter failed to make the Avena decision binding on Texas. Likewise, the Court held that, without a federal statute, the President lacked any power to implement the ICJ decision against Texas. As Sloss says, with self-conscious understatement, "[t]he Supreme Court based its decision on an understanding of the Constitution that differed sharply from the Framers' understanding" (p. 1). This entirely correct assessment in turn prompts the central question of his study: "How did we arrive at a shared understanding that the Constitution permits states to violate some treaties, even though the Framers purposefully adopted a Constitution that barred states from violating any treaties?" (pp. 1-2).

The stakes involved are both more and less than meets the eye. Medellin might matter more if the United States had signed more human rights treaties. Yet the nation that in many ways gave birth to modern international human rights law is often a notorious outlier for its failure to accede to treaties adopted by most of the rest of the world. Those few that we have ratified invariably come with reservations that more or less limit our commitments to no more than the rights already afforded by the Constitution. Medellin nonetheless matters a great deal in other ways. It remains the case that the United States has ratified at least some human rights treaties, including the International Covenant on Civil and Political Rights (14) and the Convention Against Torture and Cruel, Inhuman or Degrading Treatment. (15) However much the Senate's reservations and understandings have limited such agreements, treaty supremacy unamended could still theoretically bar rights violations by the several states. Treaty supremacy would dictate this result, moreover, notwithstanding the Senate's typical addition of a declaration...