Federalism and the Treaty Power: A Response to Mike Ramsey

In a prior post, I defended Justice Thomas’s position in Bond that treaties can only extend to matters involving intercourse with other nations. Mike Ramsey, who unlike myself is an expert regarding the Treaty Power, disagrees with this position, but I am not persuaded.

Justice Thomas had argued in Bond that the Treaty Power is limited by the traditional subjects of treaties, such as war, peace, and trade between nations. According to Thomas, the original meaning of treaty was an agreement “addressing matters of intercourse between nations rather than domestic regulation.”

Mike Ramsey adopts a different interpretation of the Treaty Power – according to Mike, a treaty must merely cover subjects that are genuinely of concern to the parties to the treaty. Mike then argues that the reason why treaties in the 18th century were restricted to matters such as war, peace, and trade between nations is that those happened to be the subjects that nations were concerned about at the time. But since nations are now concerned about additional matters, such as human rights and how a nation treats its own citizens, treaties can extend to those matters.

I disagree with Mike here. First, my interpretation (and Thomas’s) of the Treaty Power differs from Mike’s. Based on the dictionary and treaty evidence that Thomas discusses, we read the term treaty to limit treaties to matters that are objectively related to intercourse with foreign nations. That is, there was a conception of treaties – derived from historical treaties, but constructed into a concept – that involved matters that related to intercourse between nations. That concept of intercourse differed from anything that a nation happened to care about. Under my view, one nation might believe it was good that another nation not violate certain rights of its citizens, but that would not transform that concern into intercourse between nations.

Here is an anology. Imagine that the original meaning of freedom of speech allowed restrictions on speech where necessary to promote the welfare and safety of the people. Now imagine that the government seeks to limit certain speech on the ground that it insults certain people – those people care strongly that such words not be uttered. In response, the speakers argue that their words do not harm anyone and therefore the welfare as understood in freedom of speech law does not permit the restriction. The mere fact that people care strongly about the words does not necessarily mean that the people are harmed for purposes of free speech law. Similarly, the strong concern of one nation about another nation’s citizens does not mean that the matter involves intercourse between nations.

Mike also argues that my position (and Thomas’s) mistakenly confuses expected applications with the meaning of the term treaty– that we confuse the treaties that framers expected to occur with the meaning of the term “treaty.” But I disagree. Our position is not based simply on the treaties at the time. It is also based on the way that dictionaries and people like Madison described treaties. It involves an alternative meaning to Mike’s, not simply a meaning based on expected applications.

I also believe that my position is superior to Mike’s because my interpretation reads the Treaty Power to have a limited meaning. While Mike argues that the power is limited because another state actually has to care about the subject of the treaty, that is not much of a limit. One state can care about virtually anything that another state does and that would eviscerate federalism limits.

Nor are these concerns about the internal affairs of other states new. States have long been concerned about the internal affairs of other states, as the early wars between republican France and monarchical Europe show and the concern of Americans to promote liberty throughout the world. But those concerns did not cause Madison and others to state that the treaty power was essentially unlimited.

Mike argues that he doubts that I would argue that people in the late 18th century would not have called an agreement involving human rights a treaty. That actually is pretty close to my position. I think the framers would have claimed that such an agreement was not a constitutional treaty and that it involved an extension of an old concept – one that changed the meaning of the term. They might still have called it a treaty but in the same way that people call “the new property” property.

Finally, I continue to acknowledge that my position is tentative. If definitions of a treaty or actual treaties at the time strongly indicated a different understanding of treaties, I would of course be willing to reconsider my view.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Mike:

    Well, I will take your “tentative” take on it over Ramsey’s assurance anyday!

    His position would allow (encourage, perhaps) all sorts of mischief. An analogous situation was the World Court and that Spanish Judge who decided to indict anyone he had a hankering to indict – after all, he had a treaty to back him up!!!

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