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Death of Treaty Supremacy: An Invisible Constitutional Change [Hardback]

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(Professor of Law, Santa Clara University School of Law)
  • Formāts: Hardback, 472 pages, height x width x depth: 165x236x33 mm, weight: 953 g
  • Izdošanas datums: 27-Oct-2016
  • Izdevniecība: Oxford University Press Inc
  • ISBN-10: 0199364028
  • ISBN-13: 9780199364022
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Death of Treaty Supremacy: An Invisible Constitutional ChangePalielināt
  • Formāts: Hardback, 472 pages, height x width x depth: 165x236x33 mm, weight: 953 g
  • Izdošanas datums: 27-Oct-2016
  • Izdevniecība: Oxford University Press Inc
  • ISBN-10: 0199364028
  • ISBN-13: 9780199364022
Citas grāmatas par šo tēmu:
Permanent link: https://www.kriso.lv/db/9780199364022.html
Keywords:
This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The treaty supremacy rule was a bedrock principle of constitutional law for more than 150 years. It provided that treaties are supreme over state law and that courts have a constitutional duty to apply treaties that conflict with state laws. The rule ensured that state governments did not violate U.S. treaty obligations without authorization from the federal political branches. In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights for all without distinction as to race. In 1950, a California court applied the Charters human rights provisions along with the traditional supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. Conservatives reacted by lobbying for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. Before 1945, the treaty supremacy rule was a mandatory constitutional rule that applied to all treaties. The de facto Bricker Amendment converted the rule into an optional rule that applies only to self-executing treaties. Under the modern rule, state governments are allowed to violate national treaty obligationsincluding international human rights obligationsthat are embodied in non-self-executing treaties.

Recenzijas

[ The Death of Treaty Supremacy] is necessary reading for all who study, practice or teach in the fields of international or foreign relations law or otherwise want or need to understand the role of treaties in the U.S. legal system. * David Stewart, Georgetown University Law Center, American Journal of International Law * The 1783 Peace Treaty was the foundation stone of the nation, which is why the U.S. Constitution commands that treaties 'shall be the supreme law of the Land', co-equal to the Constitution and Congress's laws. In this book, David Sloss shows how, after World War II, American conservatives' hositlity to human rights treaties undermined and then neutered the constitutional command of treaty supremacy. Sloss' account of this constitutional mutiny is powerful, thought-provoking, and timely. * Thomas Lee, Leitner Family Professor of International Law, Fordham University Law School * The Death of Treaty Supremacy makes a major contribution to our understanding of American constitutionalism. It demonstrates the evolutionary nature of constitutional law, identifies the complex practical forces that drive its evolution, and highlights yet another flaw in constitutional 'originalism'. It shows that historical changes have transformed the Constitution's meaning even on an issue where the 'original' meaning was actually clear and specific -- that properly ratified treaties are 'supreme' over state law. * Edward A. Purcell Jr., Joseph Solomon Distinguished Professor of Law, New York Law School * In The Death of Treaty Supremacy, one of the nation's foremost treaty scholars tells a story of interest to all who care about constitutional change. It's a story of constitutional change driven by political and legal elites rather than courts, largely unnoticed even among the wider legal community, yet with significant implications for U.S. foreign relations law. The book is a fascinating contribution to not just treaty law, but to constitutional law as a whole. * Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law * David Sloss has written a fascinating case study on a central constitutional question - how does the interpretation of the constitution change? Moreover, Scloss has taken as his example a pressing issue of contemporary constitutional debate - the role of treaties as domestic law in state and federal courts. His fine-grained and wide-reaching research and his thoughtful analysis benefits us all. * Judith Resnik, Arthur Liman Professor of Law, Yale University Law School * A superior study, deservedly awarded the Certificate of Merit in Creative Scholarship by the American Society of International Law in 2017. * Jus Gentium *

Papildus informācija

Winner of the ASIL 2017 Certificate of Merit in Creative Scholarship
List of Tables
xi
Acknowledgments xiii
Introduction 1(16)
I The Substance of Transformation
5(1)
II The Rhetoric of Transformation
6(2)
III The Politics of Transformation
8(4)
IV Organization of the Book
12(5)
PART ONE Treaty Supremacy at the Founding
1 The Origins of Treaty Supremacy: 1776--1787
17(12)
I Treaty Violations under the Articles of Confederation
17(2)
II Rutgers v. Waddington
19(2)
III John Jay's Report to Congress
21(2)
IV The Constitutional Convention
23(2)
V The Constitution's Text
25(4)
2 State Ratification Debates
29(18)
I The Treaty Power, Navigation Rights, and the Mississippi River
30(2)
II Treaty Supremacy and State Law
32(8)
III The House of Representatives and Treaty Implementation
40(7)
3 Treaty Supremacy in the 1790s
47(20)
I Ware v. Hylton
48(3)
II The Jay Treaty Debates
51(16)
PART TWO Treaty Supremacy from 1800 to 1945
4 Foster v. Neilson
67(18)
I The First Two Holdings in Foster
68(4)
II Treaty Supremacy in Foster
72(1)
III Historical Context
73(3)
IV The Self-Execution Issue in Foster
76(9)
5 Treaties and State Law
85(22)
I U.S. Supreme Court Cases Involving Conflicts between Treaties and State Law
85(5)
II State Court Cases Involving Conflicts between Treaties and State Law
90(5)
III Congressional Deliberations about Treaties and Federalism
95(6)
IV Executive Branch Materials
101(6)
6 Self-Execution in the Political Branches
107(22)
I Congressional Debates about Self-Execution
108(6)
II Executive Branch Practice: NSE Clauses in Treaties
114(9)
III Attorney General Opinions
123(6)
7 Self-Execution in the Federal Courts
129(24)
I Supreme Court Cases That Use the Term "Self-Executing"
130(2)
II Six Landmark Cases on Self-Execution
132(8)
III Supreme Court Cases That Cite Foster, Head Money, or Both
140(5)
IV Federal Appellate Cases Related to Self-Execution
145(4)
V The Problem of Overlapping Jurisdiction
149(4)
8 Seeds of Change
153(28)
I Edwin Dickinson and the Liquor Treaties
154(8)
II The Rise of Executive Discretion in Foreign Affairs
162(4)
III Is the Intent Doctrine Constitutional?
166(3)
IV Preemption Doctrine, Self-Execution, and Treaty Supremacy
169(12)
PART THREE The Human Rights Revolution
9 Human Rights Activism in the United States: 1946--1948
181(20)
I The Advent of Modern International Human Rights Law
181(2)
II International Human Rights and U.S. Diplomacy
183(2)
III International Human Rights Activism: Petitioning the United Nations
185(2)
IV Domestic Human Rights Litigation
187(4)
V The Truman Administration Charts a Middle Path
191(4)
VI The Courts and Human Rights
195(3)
VII Conservative Reaction: The American Bar Association
198(3)
10 The Nationalists Strike Back: 1949-1951
201(30)
I The U.N. Commission on Human Rights
202(2)
II The Genocide Convention
204(4)
III State Court Litigation: The Fujii Case
208(5)
IV Scholarly Commentary on Fujii
213(6)
V Early Steps toward a Constitutional Amendment
219(6)
VI Major Civil Rights Cases Decided in June 1950
225(6)
11 Fujii, Brown, and Bricker: 1952--1954
231(26)
I The Fujii Case in the California Supreme Court
231(4)
II The Politics of the Fujii Decision
235(5)
III Brown and Bolling
240(8)
IV The Bricker Amendment
248(9)
12 Business as Usual in the Courts: 1946--1965
257(10)
I U.S. Supreme Court Decisions in Treaty Cases
258(2)
II Treaty Supremacy Cases in State Courts
260(3)
III Self-Execution Cases in Lower Federal Courts
263(4)
13 The American Law Institute and the Restatement of Foreign Relations Law
267(28)
I The Principal Actors
268(3)
II Early Work on the Restatement
271(2)
III Drafting the Treaty Rules
273(10)
IV Why Did the ALI Endorse an Optional Treaty Supremacy Rule?
283(1)
V The Aftermath of the Second Restatement
284(11)
PART FOUR Treaty Supremacy and Constitutional Change
14 Treaty Supremacy in the Twenty-First Century
295(24)
I Three New Versions of NSE Doctrine
296(3)
II A Defense of the Fujii Doctrine
299(4)
III Two Views of Optional Supremacy
303(3)
IV Political Branch Practice and NSE Declarations
306(4)
V Medellin v. Texas
310(6)
VI The NPE Doctrine
316(3)
15 Invisible Constitutional Change
319(12)
I Comparing Bricker to the ERA
320(4)
II What Makes Constitutional Change Invisible?
324(2)
III Implications for Constitutional Theory
326(5)
List of Abbreviations Used in Endnotes 331(2)
Endnotes 333(90)
Bibliography 423(16)
Index 439
David L. Sloss is Professor of Law and Director of the Center for Global Law and Policy at Santa Clara University Law School. Professor Sloss focuses his scholarship on the application of international law in domestic courts, with specializations in international human rights law, treaties, U.S. foreign relations law, and constitutional law. He is the editor of The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009), and co-editor of International Law in the U.S. Supreme Court: Continuity and Change (2011). He has published numerous articles on the history of U.S. foreign affairs law and the judicial enforcement of treaties in domestic courts. Professor Sloss received his B.A. from Hampshire College, his M.P.P. from the Kennedy School of Government at Harvard, and his J.D. from Stanford Law School. He taught for nine years at Saint Louis University School of Law.