Treaty Textualism

74 Pages Posted: 20 Aug 2013 Last revised: 19 Nov 2014

Date Written: August 20, 2013


In the immediate aftermath of the Supreme Court’s landmark 2008 ruling in Medellín v. Texas, critics attacked the Court’s holding as deeply inconsistent with the original understanding of treaty interpretation. Medellín, wrote one scholar, “cannot be reconciled with any identifiable version of originalism.”

This Article carefully reexamines the interrelationship between the late-eighteenth century law of nations, the framing and ratification of the federal Constitution, and the practices of the early Supreme Court. In uniting these threads, it reveals a link — patent and remarkable — between the late eighteenth century law of nations, the Constitution’s decision to vest treaty interpretation in the judiciary, and the methods of treaty interpretation employed by the Supreme Court in the early republic.

Textual treaty interpretation — Textualism in all but name — was thought to be a requirement of the law of nations at the time of the Constitution’s adoption. The Constitution’s Framers — who knew the law of nations’ interpretive rules — invested treaty interpretation in the judiciary for precisely this reason, designing the federal judiciary to allow independent and expert judges to interpret treaties textually even if that meant that such interpretations went against the interests of the United States. The Supreme Court, through the end of the Marshall era, did precisely as the Framers intended, holding to a muscular Textualism, citing often to interpretive rules embedded in the law of nations as it did so.

Ultimately, this historical reexamination uncovers a fascinating story about the interplay between interpretive expectations and constitutional and institutional design. The law of nation’s requirement that treaties be interpreted textually allowed the young United States the opportunity to bind its own hands and thereby obtain the credibility necessary to deal with European powers on equal footing. Vesting treaty interpretation in the judiciary meant the United States’ treaty commitments would be honored as a matter of positive law. But this strategy depended in no small measure on an ability to signal to other nations precisely how those treaties would be interpreted. The law of nations’ requirement that treaty interpretation be rule-bound and textual made the United States’ decision to invest treaty interpretation in the judiciary more than an illusory promise. It ensured other nations their commitments would be honored according to international maxims of interpretation well-settled and widely-known.

Keywords: Medellin v. Texas, treaty interpretation, maxims of treaty interpretation, Textualism, the amiable Isabella, Ware v. Hylton, Miller v. The Resolution, Foster v. Neilson, self-execution, Vattel, Grotius, Pufendorf, Burlamaqui, Rutherforth, Bacon, Blackstone, originalism, original methods

Suggested Citation

Tutt, Andrew, Treaty Textualism (August 20, 2013). 39 Yale J. Int'l L. 283 (2014), Available at SSRN:

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