History Right?: Historical Scholarship, Original Understanding, and Treaties as 'Supreme Law of the Land'

Posted: 16 Feb 2000

Date Written: 1999

Abstract

For generations historians have assumed that the Founders intended that treaties under the Constitution would generally be, as "the supreme Law of the Land," self-executing without implementing legislation by Congress. In contrast to other opportunities for revisionism, examination of this assumption serves only to confirm it. British practice, usually thought to have reflected a doctrine of non-self-execution from which Americans departed, actually proves to be far more ambiguous, with leading supporters of the Constitution proclaiming that they were merely following the standard British tradition of self-execution. In more standard fashion, nothing challenges the conventional account that the need to swift compliance with their own treaty obligations was the dominant lesson Americans drew from their own experience under the Articles of Confederation. The framers of the Constitution put this lesson into practice by making treaties self-executing upon ratification, an all but unanimous understanding made clear not just in the text, but in the votes and debates at the Federal Convention. Not unexpectedly, the ratification debates yield a range of views, with a handful of Anti-Federalist voices attempting to read limits into the plain language of the Supremacy Clause. Yet the overwhelming evidence from Federalists and Anti-Federalists alike confirms the understanding clearly expressed by the Convention. Sometimes prevailing assumptions deserve to prevail.

Suggested Citation

Flaherty, Martin S., History Right?: Historical Scholarship, Original Understanding, and Treaties as 'Supreme Law of the Land' (1999). Available at SSRN: https://ssrn.com/abstract=204250

Martin S. Flaherty (Contact Author)

Fordham Law School ( email )

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