Author Archive for
Paul Dubinsky

Dubinsky on The Death of Treaty Supremacy

by Paul Dubinsky

[Paul Dubinsky is an Associate Professor of Law at Wayne State University School of Law.This is the eighth post in our symposium this week on treaty supremacy.]

For those who have followed David Sloss’s work over the years, The Death of Treaty Supremacy is an eagerly anticipated arrival years in the making, and it does not disappoint. One finds in this volume, brought together, strands of his earlier work on judicial deference to executive branch treaty interpretation, the domestication of international human rights law, and “schizophrenic” treaty law. The book also contains David’s trademark close analysis of the treaty interpretation cases of the early Supreme Court. All is presented as part of a broad synthesis.

The book argues that the doctrine of treaty supremacy – the principle that all treaties enjoy a hierarchically superior position to state law – was a “bedrock principle” of U.S. constitutional law for much of U.S. history. As Carmen Gonzalez puts it: “from the earliest days of the Republic until World War II, all treaties ratified by the United States were understood to supersede conflicting state laws pursuant to the treaty supremacy rule.” From that launching point, the book’s main thesis is that the doctrine of treaty supremacy has died a quiet death in the years since World War II. There was no state funeral, just a meandering series of barely audible eulogies. The path from treaty supremacy to the “supremacy of some treaties” was cleared by key developments in international law generally and treaty law in particular: the birth of human rights law, the growth of multilateral treaties, the proliferation of international institutions, and the increasingly broad and deep scope of international law.

Others in this symposium have discussed the book’s value in terms of its historical analysis, constitutional interpretation, and its practical value to human rights litigators. As this on-line symposium draws to a close, it is important to note that the Death of Treaty Supremacy opens up new avenues for research. For example, David Stewart observes that “the story of our Constitution is largely one of judicial adaptation and reinterpretation in light of changed circumstances.” In response to the book’s “problem [] with the lack of political transparency” of the process of interring treaty supremacy, Stewart argues that “it is hard to see how a plebiscite or process of formal amendment with respect to the treaty power might actually work.”

David’s observation usefully puts the book’s main claim in perspective. Is The Death of Treaty Supremacy primarily a book about treaty law? About constitutional interpretation? About legal transformation more generally? When we read it a second time, should our frame of reference be Bruce Ackerman’s work on transformations? Or other slow processes of erosion and transformation that have taken place in U.S. treaty law?

If the latter of these, consider treaty interpretation. For approximately a century, it was a bedrock principle of American treaty interpretation that treaties were a kind of contract. The result was that for a long stretch of time, key principles and techniques of the private law of contracts were applied to the interpretation of treaties. Several of the opinions in Ware v. Hylton proceed on this assumption. Ware and its progeny thus established judicial independence in interpreting the nation’s treaties, and did so in part by employing common law contract adjudication as a point of reference. That judicial independence takes the form of the search for mutual intent in bilateral treaties, attention to non-English treaty texts, the emergence via Justice Story of “liberal interpretation,” and notable instances in which the Supreme Court rejected interpretations of treaties that were offered by the U.S. administration in power.

The late 19th century brought the gradual and quiet arrival of a different analogy for treaty interpretation: the treaty as statute. With methods of statutory construction finding their way into the interpretation of the nation’s international agreements came important changes: more deference to the Executive Branch, more reliance on unilateral sources such as U.S. legislative history, less attentiveness to the non-English text of the agreement, less of a willingness of U.S. courts to consider what other states party sought from the treaty, and fewer instances in which foreign claims of breach by the United States were vindicated in U.S. courts. In recent years, other versions of treaty interpretation (e.g., Chevron deference) ask us to go even further from the assumptions held by the Founding generation.

As with the death of treaty supremacy, the prolonged decline of a genuinely applied contract model of treaty interpretation has taken place largely without transparency or clearly articulated justification. Unlike treaty supremacy, the Founder’s assumptions and intentions were not recorded in an express textual provision in the Constitution, though there is abundant evidence that they saw treaties in contractual terms and, of course, they treated some of their assumptions as so natural and obvious as not to require express statement.

So then, if the death of treaty supremacy was a silent and invisible constitutional amendment, can the same be said about the changes in how generations of Americans interpret treaties? And if either one is cause from the perspective of transparency and legitimacy, what about when the two processes occur simultaneously?

For more on the transformation of U.S. treaty interpretation, see the soon-to-be-released co-authored volume, Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the Legal System of the United States, by Cambridge University Press, co-edited by Greg Fox, Brad Roth, and Paul Dubinsky.

What the Demise of Elliott Spitzer Reveals

by Paul Dubinsky

[Paul Dubinsky is a law professor at Wayne State University Law School].

For years we have been told that the problem with our politics lies in our public servants. They go off to Washington and forget who put them there. They arrive at the state house and quickly regard themselves as above the law. Decency’s address, we are told, is Main Street. Corruption’s address is Pennsylvania Avenue. So, in this election cycle, as in each one since Watergate, the people yearn for a plain-talking figure from outside the system. We want someone free of personal vice, someone who transcends daily politics and attack ads, someone who personifies the values we want to teach our children.

It is a seductive vision of national salvation. We just need to find a hero on a white horse to set things straight. It is also a dangerous half truth. Yes, part of the problem of American politics today is the venality of some of our public servants, but another part of the problem rarely discussed is that the American people possess something of a mean streak. For all our occasional generosity and capacity for compassion, we enjoy watching other people’s public distress. Each time a public figure gets hauled in front of the cameras to become the object of ridicule, it is really the underbelly of American life that is on display. We see the part of the national character that treats almost anything as sport, the part that takes comfort in seeing anyone wealthier, smarter, or more successful brought low. There has always been a place in American politics for the simple morality play, for tarring and feathering the genuine do-gooder who also happens to be flawed.

What is so bad about an occasional morality play? Is there a danger to the Republic in the gleeful media blitz and Internet traffic regarding Eliot Spitzer and other sex scandals? Yes, there is. It is not just that a Monica Lewinsky affair totally consumes the time and energies of Congress. It is not merely that every time a public official is exposed and brought down, a thousand young people decide to head for careers in the entertainment industry rather than government. It is also that each public lynching propagates two pernicious untruths: (1) that it is realistic to expect to find talented public servants who possess no embarrassing personal weaknesses; and (2) that all vices are somehow equal, that lying to one’s spouse is as bad in a public servant as lying under oath.

The latter untruth is probably the bigger worry. People point to Eliot Spitzer and say that his hypocrisy shows that government officials are the problem and that our government needs to be as small and weak as possible. But the issue is not whether Mr. Spitzer or any elected official falls short of the ideal. Everyone does. Our views about government cannot be overly shaped by disappointment in some of the people who hold office. The issue is what sorts of flaws render a person truly unfit for public office. That is the national conversation that is long overdue. Is a person unfit for leadership because he has solicited sex in an airport restroom? Or is he unfit because, through misrepresentation, he led the country into a costly war? Can we accept senior Justice Department officials lawyers who tell the President what he or she wants to hear? Is having sex with a prostitute more disqualifying than condoning torture or refusing to level with the American people about global warming?