Death of Treaty Supremacy

This book provides the first detailed history of the Constitution's treaty supremacy rule. The traditional supremacy rule precluded state governments from violating U.S. treaty obligations. After a 1950 California court decision implied that the United States had effectively abrogated Jim Crow laws by ratifying the UN Charter, conservatives achieved a de facto constitutional change. This created a novel exception that permits state governments to violate some treaties. The death of treaty supremacy has significant implications for U.S. foreign policy and for U.S. compliance with its treaty obligations.

List of contents

• List of Tables


• Acknowledgments


• Introduction


• Part One: Treaty Supremacy at the Founding


• Chapter One: The Origins of Treaty Supremacy, 1776-1787


• Chapter Two: State Ratification Debates


• Chapter Three: Treaty Supremacy in the 1790s


• Part Two: Treaty Supremacy from 1800 to 1945


• Chapter Four: Foster v. Neilson


• Chapter Five: Treaties and State Law


• Chapter Six: Self-Execution in the Political Branches


• Chapter Seven: Self-Execution in the Federal Courts


• Chapter Eight: Seeds of Change


• Part Three: The Human Rights Revolution


• Chapter Nine: Human Rights Activism in the United States: 1946-48


• Chapter Ten: The Nationalists Strike Back: 1949-51


• Chapter Eleven: Fujii, Brown and Bricker: 1952-54


• Chapter Twelve: Business as Usual in the Courts: 1946-65


• Chapter Thirteen: The American Law Institute and the Restatement of Foreign Relations Law


• Part Four: Treaty Supremacy and Constitutional Change


• Chapter Fourteen: Treaty Supremacy in the 21st Century


• Chapter Fifteen: Invisible Constitutional Change


• List of Abbreviations Used in Endnotes


• Endnotes


• Bibliography


• Index

About the author

David L. Sloss is Professor of Law at Santa Clara University School of Law. His scholarship focuses on the application of international law in domestic courts, with specializations in international human rights, treaties, U.S. foreign relations law, and constitutional law. He is the editor of The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009), and co-editor of International Law in the U.S. Supreme Court: Continuity and Change (2011). He has published numerous articles on the history of U.S. foreign affairs law and the judicial enforcement of treaties in domestic courts. Professor Sloss received his B.A. from Hampshire College, his M.P.P. from the Kennedy School of Government at Harvard, and his J.D. from Stanford Law School. He taught for nine years at Saint Louis University School of Law. Before he was a law professor, he worked for the U.S. government on arms control and nuclear proliferation issues.

Summary

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.

Additional text

A superior study, deservedly awarded the Certificate of Merit in Creative Scholarship by the American Society of International Law in 2017." - Jus Gentium

Product details

• Authors: Sloss, David Sloss, David (Professor of Law and Director of the Sloss, Sloss David
• Publisher: Oxford University Press
• Languages: English
• Product format: Paperback / Softback
• Released: 21.11.2022
• EAN: 9780197651797
• ISBN: 978-0-19-765179-7
• No. of pages: 480
• Subjects: Humanities, art, music > Education > General, dictionaries; EDUCATION / General, Education, Education / Educational sciences / Pedagogy