[Given the unusual length of this post, I have boldfaced key passages.]
Let’s now turn to the second of the three primary vehicles that transnationalists like Harold Koh aim to use to override the ordinary processes of representative government under our Constitution: an extravagant misuse of treaties. In particular, I will focus in this post on (1) the transnationalist view of the scope of treaties and in upcoming posts on (2) the domestic legal status of treaties, and (3) the means for interpreting and implementing treaties.
Let me first offer a brief preface: The traditional core role of treaties (until recent decades) has been to govern relations between nations, including how one nation treats citizens of another nation. The Supreme Court has long distinguished between treaties that automatically have effect as domestic law (“self-executing” treaties) and those whose domestic legal effect depends on the enactment of implementing statutes (“non-self-executing treaties”).
As a purely descriptive matter: Insofar as the United States resorts to treaties to govern relations between the federal and state governments, on the one hand, and American citizens, on the other, those treaties operate in the realm traditionally governed by the legislative powers of Congress and the states. Insofar as such treaties make difficult or preclude contrary legislative action, they supplant the exercise of those ordinary legislative powers. And insofar as the authority to interpret and implement treaties is transferred to international bodies, the ability of the American government to maintain and enforce the understanding of treaty meaning that governed its entry into the treaties is reduced.
Now let’s examine the transnationalist positions of Harold Koh on the scope of treaties.
As with customary international law, the subject matter of treaties has increasingly been dominated in recent decades by a broad range of so-called “human rights” matters—matters that relate to a nation’s treatment of its own citizens. There are, of course, horrific violations of human rights in many parts of the world, and insofar as treaties are an effective means of curbing those violations—a contestable proposition, I suspect— they are obviously to be welcomed. But the cachet of “human rights” can also be used as camouflage to advance policies on which reasonable people of good faith can and do have very different views—for example (to borrow from law professor Curtis Bradley’s and Jack Goldsmith’s list of expanding CIL norms), concerning the nature and scope of “a right to be free from expressions of ‘national, racial, or religious hatred,’” “the right to free choice of employment,” “the right to form and join trade unions,” “the right to free primary education, subject to a state’s available resources,” “the right to property,” “freedom from gender discrimination,” “the right to personal autonomy,” “the right to live in a democratic society,” and “rights relating to sexual orientation.” (Bradley & Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modern Position,” 110 Harv. L. Rev. 815, 841 & n. 171 (1997)).
Whether or not the Constitution’s treaty power permits the president to make treaties on matters of domestic social and economic policy, the expansive use of treaties on these matters is at odds, in two fundamental respects, with the basic system of representative government that the Constitution creates. (Lest I be misunderstood: I am not arguing here that such use is unconstitutional (though I am not rejecting that argument either); I am arguing, rather, that such use—especially in the case of self-executing treaties—disserves important constitutional values.)
First, the ordinary means of federal lawmaking requires approval of both Houses of Congress (and the president’s signature or congressional override of his veto). Each House is designed to serve a different role. As Madison explains the House of Representatives in Federalist No. 52:
As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.
And in Federalist No. 54:
[T]he House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.
If treaties are self-executing (the position favored by Koh—as we shall see in the next post—and predominant among transnationalists), adopting domestic policy via the treaty route writes the House of Representatives out of the process entirely and disserves the “essential” values that Madison identified. Even non-self-executing treaties on domestic policy matters create international legal obligations that place pressure on the House of Representatives to implement the new obligations domestically. (It is precisely this sort of pressure that Koh advocates and celebrates: “As American lawyers, scholars, and activists, we should make better use of transnational legal process to press our own government to avoid the most negative and damaging features of American exceptionalism”—namely, “U.S. insistence upon double standards,” of having “a different rule … apply to itself than applies to the rest of the world.” (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1486, 1501-1502 (2003).)
The use of treaties to adopt domestic policy also limits the role of the Senate. In exercising its ordinary legislative role, the Senate has virtually unlimited freedom (within the bounds of the Constitution, of course) to craft and revise legislation. By contrast, if a treaty that the State Department has negotiated and the president has agreed to is self-executing, then the Senate’s role is limited to (1) consenting to the treaty as is, (2) consenting to it with reservations, understandings, or declarations (though there is controversy over whether and when such conditions on consent are permissible), or (3) rejecting it. (On the other hand, of course, the 2/3 requirement for Senate consent provides a higher bar than for ordinary legislation.) And again, even the adoption of a non-self-executing treaty places pressure on the Senate (whose composition may have changed considerably since the adoption of the treaty) to implement the new obligations domestically.
Second, use of the treaty power to impose on the states international legal obligations on a broad array of matters of domestic policy tramples federalism and dilutes the Constitution’s commitment in Article IV that the “United States shall guarantee to every State in this Union a Republican Form of Government.” Indeed, it’s accepted that a treaty (with or without implementing legislation) can impose obligations on the states that Congress couldn’t impose in the absence of the treaty. The exercise of that power is far easier to justify for treaties that regulate our relations with other nations and their citizens than it is for treaties that legislate domestic policy.
Koh is an ardent champion of “human rights” treaties that regulate the relations between a nation and its own citizens on matters of domestic social and economic policy. He has decried “double standards”—“when the United States proposes that a different rule should apply to itself than applies to the rest of the world”—as “the most dangerous and destructive form of American exceptionalism.” “Recent well-known examples” of American “double standards,” according to Koh
include such diverse issues as the International Criminal Court, the Kyoto Protocol on Climate Change, executing juvenile offenders or persons with mental disabilities, declining to implement orders of the International Court of Justice with regard to the death penalty, or claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons.
(Koh, “On American Exceptionalism,” 55 Stan. L. Rev. at 1483, 1486.)
If there are any limits—beyond intrusions on recognized individual constitutional rights—that Koh would place on the legitimate and desirable use of the treaty power to regulate domestic social and economic policy, I have not yet run across them in his writings. (I certainly don’t claim to have read everything Koh has written on the matter. If any reader will call to my attention limits that Koh has embraced, I will supplement this post, consistent with my general practice of readily correcting any error that I become aware of.)
Indeed, I give Koh far too much credit in assuming that he would not favor use of the treaty power to intrude on—or to redefine into oblivion—recognized individual constitutional rights. As law professor Eugene Volokh and I (here and here) have discussed, the first of four “faces” of “American exceptionalism that Koh lists “in order of ascending opprobrium” is America’s “distinctive rights culture,” which gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.” Fortunately, “[o]n examination,” Koh does “not find this distinctiveness too deeply unsettling to world order” or “fundamentally inconsistent with universal human values.” (Whew, that was evidently a close call!) So it can be “tolera[ted],” at least to some extent and at least under existing “European Union law”:
The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.
(Koh, “On American Exceptionalism,” 55 Stan. L. Rev. at 1483.)
But, Koh warns in a footnote, “our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” (including of treaties) that Koh advocates. (Koh, at 1483 n. 14.)
As Volokh puts it, Koh sure seems to be advocating the use of transnationalism to “reduce the scope of American constitutional rights.” Koh may just be slightly more coy than the other very respected “internationalist legal scholar” whom Volokh quotes who openly celebrates the prospect that transnationalism “may point to the Constitution’s more complete subordination” to international norms.
(Fifth in a series. Previous posts: Overview of series, what “transnationalism” is, what customary international law is, and the transnationalist game on customary international law. Next: The domestic legal status of treaties.)