Treaties, international law, and constitutional rights.

• Author: Spiro, Peter J.
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. CONSTITUTIONAL HEGEMONY IN HISTORICAL PERSPECTIVE A. The Doctrine of Constitutional Hegemony B. Overriding Rights, Quietly C. Hegemony Entrenched II. QUESTIONING HEGEMONY A. Current Practice in a National-Interests Perspective B. Redefining Constitutional Community Upwards C. Insinuating International Law CONCLUSION INTRODUCTION

Can a treaty override an individual right protected under the Constitution? In its 1957 decision in Reid v. Covert, the Supreme Court held that the "obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." (1) There is perhaps no element of the foreign relations law canon more universally held than the proposition that constitutional rights prevail as against inconsistent international agreements; a consensus of commentators, (2) courts, (3) and other constitutional actors (4) has long held that, in this respect, the Constitution stands supreme. Even as other elements of modern foreign relations law have come under vigorous assault. (5) this constraint on the treaty power has gone unchallenged. Indeed, across the political spectrum, the rule is counted among those whose deep entrenchment eliminates the need for justification--so much so that it has attracted almost no scholarly attention in recent decades.

To the extent that the changing global context is driving the general ferment in foreign relations law, however, no element of the canon should be excused from reexamination. This Article interrogates the hegemony of domestic constitutional rights, in both historical and contemporary contexts. As a matter of constitutional design and historical practice, the case for privileging constitutional rights against international law was a strong one; although the rule may not always have been as "obvious" as it has been to the modern eye, it has never been seriously challenged. Locating the treaty power beyond constitutional constraint would have destabilized the entire constitutional apparatus. On the other hand, rights have been defined to serve national foreign relations interests. In at least three nineteenth-century contexts--extradition, the settlement of foreign claims, and the operation of consular courts--treaty regimes resulted in the override of otherwise tenable constitutional entitlements. In the modern era, international human rights norms played an important part in the expanded conception of domestic civil rights, while other individual rights were constrained in the face of foreign relations concerns. No account of twentieth-century constitutional rights is complete without international geopolitical referents. At the same time, however, the principle of constitutional supremacy was further entrenched in the constitutional discourse.

But even this bedrock constitutional principle might be questioned in the face of a transforming global architecture. The nature of treaty-making--and indeed of international law generally--has changed, moving in a direction that should systemically protect against the diminishment of rights. Where international law was once blind to individuals as such, today we find an increasingly consequential umbrella of individual rights protections in the form of international human rights norms. International agreementmaking takes place within the boundaries of that legal regime. Where states were once free to bargain away individual rights--for none were protected under international law itself--they now must account for them under other treaty and nontreaty norms. International law, in short, is itself becoming constitutionalized, at least in the sense that it recognizes the priority status of fundamental individual rights. From an instrumental perspective, the constitutionalization of international law limits the dangers of constitutional subordination.

This Article also explores a possible normative basis for vindicating the treaty power--even where certain treaty terms are inconsistent with constitutional rights. To the extent that the choice is between contending constitutional balances in the international and domestic realms rather than between the constitutional and the merely legal, no simple hierarchical answer presents itself. Rather, the question is at what level constitutional norms are appropriately located. (6) In the face of globalization and the human rights revolution, a case can be made for the international determination of baseline rights. Constitutions are community dependent, and the world is, to an increasing extent, a single community working from a shared set of core values when it comes to the definition of baseline human rights. This is not to say that the adoption of international norms should preclude state capacities to deviate from or define rights and other constitutional matters in many contexts to reflect alternative community boundaries, consistent with such international-law devices as subsidiarity and the margin of appreciation. If some constitutional norms are more appropriately set at the international level, however, that should justify a treaty power that, in some cases, overcomes even the Bill of Rights.

Insofar as the treatymakers have themselves assimilated domestic constitutional supremacy, the issue is unlikely directly to present itself. It nonetheless provides a useful focal point for considering the more likely deployments of international norms in the realm of U.S. constitutional law. If one can establish a basis for privileging international rights determinations, then international law can be put to lesser tasks as an interpretive tool. There is evidence that international law is increasingly consequential in the definition of domestic constitutional rights. This interpretive use of international law may present the best defensive strategy on the part of U.S. courts and other constitutional institutions for maintaining the formal hegemony of the domestic constitution. The frame sketched here, however, suggests that this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run.

1. CONSTITUTIONAL HEGEMONY IN HISTORICAL PERSPECTIVE

   The dogma of constitutional hegemony has gone largely uncontested. The constitutional text leaves some room for argument, though the insulation of constitutional rights from inconsistent international agreements has long been considered a settled one. One can, however, identify contexts in which rights have been constructed so as to avoid the constitutional collision, as with extradition treaties, foreign claims settlement agreements, and agreements relating to extraterritorial consular court jurisdiction. Against the backdrop of other differential doctrines of foreign affairs law, one can at least call into question the entrenched rule under which individual constitutional rights are never to give way to the treaty power.

   1. The Doctrine of Constitutional Hegemony

      Before the mid-twentieth century, there was little focus on the status of individual constitutional rights as against the treaty power. At the first level, this lack of attention can be explained by the ostensible nonintersection of individual rights and foreign relations. (7) Where the question was engaged, it was assumed across the constitutional spectrum that treaties could not modify individual rights as defined by the Constitution.

      The only prominent episode directly presenting the issue involved the interplay of treaty-based process immunity for consuls and the then-existing Sixth Amendment right of defendants to demand the testimony of favorable witnesses. A serious controversy erupted over the "attachment" of the French consul at San Francisco to give testimony in a neutrality act prosecution. A federal district court judge first ordered the French official to appear, denying the validity of the treaty defense to the exercise of the constitutional right. The court subsequently ruled that the Sixth Amendment did not require the consul's testimony, so the conflict was mooted short of a decision.8 In the wake of serious fallout on the diplomatic front, Secretary of State Marcy was unequivocal in asserting the primacy of the constitutional command:

      The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition.... Neither Congress nor the treaty-making power are competent to put any restriction on this constitutional provision. (9) In the negotiation of future bilateral agreements, the United States rejected provisions that purported to immunize consular officials from process in such cases. (10)

      Otherwise, the issue was engaged on the margins of more consuming debates regarding separation-of-powers and federalism constraints on the treaty power. (11) These questions loomed large from the founding period on, and inevitably provoked sweeping statements on the relative standing of treaties and the Constitution. The Supremacy Clause itself left room for arguments as to whether constitutional limitations applied to the exercise of the treaty power. (12) Although at least one prominent commentator found the treaty power defined by sovereignty and not by the Constitution (13) (an approach prefiguring and now identified most prominently with the Court's decision in Curtiss-Wright (14)), most actors agreed that the Constitution supplied a baseline to the exercise of the treaty power. That agreement extended to the proposition that a treaty could not change the "nature" of the government of the United States and could not "authorize what the Constitution forbids," as the dominant view was reflected in Justice Field's oft-quoted opinion in Geofroy v. Riggs. (15)

      While allowing for intense debate on questions of institutional allocation...