Rethinking the Constitution - Treaty Relationship: A Reply to Remy Z. Levin & Paul Chen

Abstract

In Rethinking the Constitiution-Treaty Relationship, Remy Z. Levin and Paul Chen provide a valuable reexamination of the legal relationship between the US Constitution and treaties to which the United States is a party. The authors marshal historical evidence showing that the relationship is a more nuanced process of “mutual adjustment” between treaties and the Constitution than is commonly understood. The contemporary conventional wisdom is that constitutional provisions always trump treaty obligations. The authors contend that characterizing this relationship in absolutist terms is inaccurate and misleading: while the Constitution does sometimes override treaty obligations, international law and domestic constitutional law sometimes interact in a dialogic manner, with treaty obligations and constitutional norms operating to inform or “adjust” one another.

This Reply makes two primary points in seeking to further the conversation the authors have so ably begun. First, as a descriptive matter, this Reply will argue that it is imprecise to speak of treaties adjusting “the Constitution.” Rather, what the authors have described is actually a process of treaties adjusting various constitutional actors’ constitutional interpretation, not the Constitution itself. While this difference may at first appear to be merely pedantic, I believe that speaking of this interaction as involving the adjustment of some free-standing constitutional meaning obscures important issues regarding separation of powers and judicial review. Second, this Reply will briefly discuss the tension between the authors’ thesis and Supreme Court precedent in a related area. If constitutional actors indeed do “adjust” constitutional meaning in light of treaties, it raises similar separation of powers concerns as those at issue in the Supreme Court’s cases holding that Congress cannot, in seeking to enforce the Fourteenth Amendment’s individual rights provisions, alter constitutional meaning.

Keywords: Remy Z. Levin, Paul Chen, constitutional interpretation, constitutional adjustment, separation of powers, judicial review, Boerne v. Flores, treaties, Medellin v. Texas, individual rights, Fourteenth Amendment, Head Money Cases, Treaty Clause

JEL Classification: K00, K19, K33, K39, K41