Treaties, International Law, and Constitutional Rights

Abstract:     
Can a treaty override an individual right protected under the Constitution? 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, courts, and other constitutional actors has long held that, in this respect, the Constitution stands supreme. This essay questions the hegemony of domestic constitutional rights, in both historical and contemporary contexts. 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. The transforming global architecture may now allow for an open assault on constitutional hegemony. Although constitutional subordination is unlikely to be adopted as a matter of doctrine, the analysis supplies an additional platform for considering other deployments of international norms in the realm of U.S. constitutional law. If one can establish a basis for privileging international rights determinations over domestic ones, then international law can be put to lesser tasks as an interpretive tool.

Number of Pages in PDF File: 30

Keywords: treaties, Bill of Rights, Reid v. Covert, Boos v. Barry, international law, Supremacy Clause, consular courts, foreign claims settlement, extradition

Accepted Paper Series