Co-blogger Mike Rappaport, following Justice Thomas’ concurrence in Bond v. United States, argues that as a matter of original meaning the U.S. government’s treatymaking power is limited to “international matters.”
I agree, to this extent: A treaty must cover subjects that are genuinely of concern to the parties to the treaty. There cannot be sham treaties designed only to enhance federal power, where the United States persuades a compliant treaty partner to “agree” to things that matter only for domestic U.S. purposes. This disposes of fanciful hypotheticals in which the U.S. enters a treaty with, say, Latvia, merely in order to gain power over something that would ordinarily be outside the federal government’s reach. This limitation is textual: it comes from the meaning of “treaty” — an agreement among nations on matters of mutual concern.
But Professor Rappaport and Justice Thomas go on to say that the matters of international concern in a treaty can only be matters that were of international concern in the founding era. So, for example, treaties cannot address how a nation treats its own citizens, because that was not a matter of international concern when the Constitution was adopted.
I disagree. Whatever the situation in 1789, it is clear that today nations are concerned about how other nations treat their own citizens. The U.S. is particularly concerned, making other nations’ respect for human rights part (albeit perhaps an inconsistent part) of its foreign policy. At least some policymakers believe enhancing human rights in other nations enhances U.S. national security, because nations that respect human rights are less likely to threaten each other. For whatever reason, nations have entered into an array of human rights treaties, reflecting the breadth of international interest in the issue. Like it or not, domestic human rights have become an international concern.
Professor Rappaport says this doesn’t count, because these matters were not of international concern at the founding. But the ordinary meaning of “treaty” at the founding likely wasn’t “agreement respecting things that are of international concern right now”; it was “agreement respecting things that may be of international concern from time to time.” If an agreement regarding human rights was made in, say, 1800, I think it unlikely that anyone would have denied it was a “treaty” under international law (though they might well have thought it was a treaty on a subject treaties had not previously covered). Otherwise treaties could not cover new subjects: there could be no treaty about space, or air travel, or arms control (assuming, in the latter case, that arms control had not previously been a subject of treaties). Nothing in the eighteenth-century international law of treaties suggests that there was a closed set of subjects to which treaties could apply. “Treaty” just meant binding agreement among nations, as to any subject. (See, for example, Vattel’s Law of Nations, preliminaries, sec. 24.).
It’s likely true, as Justice Thomas’ concurrence argues, that the founding era did not think that treaties would cover internal matters such as domestic human rights. To constitutionalize that belief, however, is a mistaken use of original expectations. What matters is what the constitutional language means, not what effects the framers thought it would have. For example, the framers likely did not think that presidential electors would be selected by the popular vote for specific presidential candidates when they wrote that electors would “appoint[ed], in such manner as the Legislature [of each state] shall direct.” But that does not mean selecting electors by popular vote is unconstitutional (so long as that is what the Legislatures direct). The question is whether the constitutional language allows it, not whether the framers expected it to happen.
Sometimes the original expectations are a clue to the meaning of the constitutional language. But that’s not the way they are being used here. I doubt that Professor Rappaport or Justice Thomas mean to argue that an agreement among nations on human rights is not a treaty, or would not have been called a treaty (had such an agreement been made) in the founding era. Rather, they mean to say that the framers did not think, in giving the federal government the power to make treaties, that this would open the door to federal interference in internal matters. The framers thought that because they didn’t think nations would make treaties on internal matters. But the framers were wrong, as it has turned out.
The core intuition underlying the impulse to limit the subject matter of treaties is that the alternative allows the treatymaking power to destroy federalism. This fear is overstated, at least from a founding-era perspective. As I’ve argued at greater length in this article (esp. pp. 996-1001), the key is Article I, Section 3 of the original Constitution, which provided that Senators would be selected by the state legislatures. Coupled with the two-thirds of Senators present required to approve treaties, it effectively required two-thirds of the states to approve a treaty (almost as many as would be required for a constitutional amendment). It’s entirely plausible that the framers thought this procedural protection sufficient to protect the states against overreaching by treaty. (It’s also true that this protection was greatly weakened by the Seventeenth Amendment, but that does not change the original meaning of “treaty”).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.