Treaties in the Supreme Court, 1861-1900

Treaties in the Supreme Court, 1861-1900

OK, I’ll admit up front that this is a relatively narrow topic.  But I’ve written a chapter on the U.S. Supreme Court’s approach to treaties from 1861 to 1900 (you can download it here).  The project’s initial appeal was participating in this great conference last year at Santa Clara on the history of the Supreme Court and International Law.  Bill Dodge, Mike Ramsey and David Sloss have since done superb work in pulling together a book on the same subject (forthcoming later this year from Cambridge University Press).  My article will serve as the first chapter (after an introduction covering the Framing Period); Michael Van Alstine is writing about treaties from 1901-1946, while Paul Stephan has posted his chapter on the Court and treaties from 1946-2000.  Thus, you might see this article’s value in providing one piece of a larger picture of the Supreme Court’s vision in dealing with not only treaties, but also customary international law and the use of foreign and international sources in interpretation.    

Apart from the larger project, moreover, my chapter demonstrates that the post-Civil War period deserves greater attention as an important formative stage for the Court’s modern treaty doctrine.  The Court initiated both the later-in-time rule and the label “self-executing” during this era.  In terms of take-away points, moreover, I was most struck by how the Court adopted these new rules (which by and large limited the domestic force of U.S. treaties) in cases involving treaties with non-European treaty partners, e.g., Mexico, China, and Native American tribes.  Of course, once created, these doctrines applied more generally.  Still, I was surprised to see such a contrast between the Court’s greater (although certainly not universal) fidelity to treaties with Great Britain, France and Spain and its willingness to find various reasons to deny rights or enforcement of treaties that involved neither European States nor the Great Powers of the day. 

For those interested in more details, here’s the chapter’s abstract: 

This chapter, part of a larger book reviewing the history of the U.S. Supreme Court’s approach to international law, examines the Court’s treaty doctrine between the poles of the Civil and Spanish-American Wars. It finds that – even as the period exhibited much continuity in the Court’s approach to treaties – there were substantial areas of evolution. The chapter offers three different explanatory lenses to examine that evolution: (i) the rise of Congress’s relative power in domestic politics, (ii) U.S. foreign affairs’ increased attention to non-European treaties, and (iii) increasing jurisprudential emphasis on positivism in domestic and international circles.

In terms of the treaty doctrine itself, the Chapter reveals the Court’s continued fidelity to several treaty principles developed at the Framing, especially the ability of treaties to trump state law and the capacity of private individuals to invoke rights and receive judicial remedies pursuant to U.S. treaty obligations. At the same time, it details the origins of the Court’s adoption of a theory of equivalence between statutes and treaties that paved the way for the later-in-time rule. In addition, the Chapter reviews the Court’s often inconsistent experimentation with different methods for interpreting treaties and its elaboration in theory – if not in practice – of the concept of non-self-executing treaties. All told, therefore, this Chapter reveals a more nuanced – and important – set of treaty rulings during the post-Civil War period than previous foreign affairs law scholarship has recognized.

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John C. Dehn


I wonder whether the difference in approach to treaties with Great Britain, France, etc. had to do with their status as “civilized nations.”  Certainly, the court was fairly clear in Paquete Habana (1900) that only the practice of civilized nations mattered to the development of customary international law. Did you see any other evidence that this concept, then prominent in international law, was potentially at play? 

Coincidentally, in the same period that you reviewed, I have noticed that many general principles were established in cases involving the laws of war, particularly neutrality and prize law.  See, for example, Charming Betsy and Paquete Habana.


Benjamin Davis
Benjamin Davis

Maybe this is just another way the legacy of race (with the imperialist tinge with China and Mexico also) plays its way in another area of US law (Plessy anyone?).  The treatment of Native American treaties is something I am looking into and have been referred to the work of G. William Rice, Matthew Fletcher, Rebecca Tsosie, Stacy Leeds, Robert Odawa Porter and Rob Williams.  I understand that to really get the Native perspective, we are all indebted to all of the books and writings of Vine Deloria, Jr.  I just read Mari Sandoz, Crazy Horse, the Strange Man of the Oglala Sioux and the whole way in which the successive treaties are put in place and ignored in that setting really struck me as having to be a basis for the cavalier manner the US approaches international law in the foreign relations law vision. Think of the whole game with regard to the Geneva Conventions with regard to the Al-Qaeda types of Middle Eastern origin.  Or the death penalty cases with Mexico and the Vienna Convention on Consular Relations.  One does see a pattern that successive generations have fought against. And, as with all the legacies of slavery, the utopians have… Read more »