The death of treaty supremacy : an invisible constitutional change / David L. Sloss.

Format:

Book

Author/Creator:

Sloss, David, author.

Language:

English

Subjects (All):

States' rights (American politics).

History.

International relations.

Treaty-making power.

United States--Foreign relations--Law and legislation.

United States.

Treaty-making power--United States--States.

International relations--States.

Federal government--United States.

Federal government.

Constitutional law--United States--States.

Constitutional law.

States' rights (American politics)--History.

Separation of powers--United States.

Separation of powers.

Physical Description:

xiv, 458 pages ; 25 cm

Place of Publication:

New York, NY : Oxford University Press, 2016.

Contents:

I The Substance of Transformation 5

II The Rhetoric of Transformation 6

III The Politics of Transformation 8

IV Organization of the Book 12

Part 1 Treaty Supremacy at the Founding

1 The Origins of Treaty Supremacy: 1776-1787 17

I Treaty Violations under the Articles of Confederation 17

II Rutgers v. Waddington 19

III John Jay's Report to Congress 21

IV The Constitutional Convention 23

V The Constitutions Text 25

2 State Ratification Debates 29

I The Treaty Power, Navigation Rights, and the Mississippi River 30

II Treaty Supremacy and State Law 32

III The House of Representatives and Treaty Implementation 40

3 Treaty Supremacy in the 1790s 47

I Ware v. Hylton 48

II The Jay Treaty Debates 51

Part 2 Treaty Supremacy from 1800 to 1945

4 Foster v. Neihon 67

I The First Two Holdings in Foster 68

II Treaty Supremacy in Foster 72

III Historical Context 73

IV The Self-Execution Issue in Foster 76

5 Treaties and State Law 85

I U.S. Supreme Court Cases Involving Conflicts between Treaties and State Law 85

II State Court Cases Involving Conflicts between Treaties and State Law 90

III Congressional Deliberations about Treaties and Federalism 95

IV Executive Branch Materials 101

6 Self-Execution in the Political Branches 107

I Congressional Debates about Self-Execution 108

II Executive Branch Practice: NSE Clauses in Treaties 114

III Attorney General Opinions 123

7 Self-Execution in the Federal Courts 129

I Supreme Court Cases That Use the Term "Self-Executing" 130

II Six Landmark Cases on Self-Execution 132

III Supreme Court Cases That Cite-Foster, Head Money, or Both 140

IV Federal Appellate Cases Related to Self-Execution 145

V The Problem of Overlapping Jurisdiction 149

8 Seeds of Change 153

I Edwin Dickinson and the Liquor Treaties 154

II The Rise of Executive Discretion in Foreign Affairs 162

III Is the Intent Doctrine Constitutional? 166

IV Preemption Doctrine, Self-Execution, and Treaty Supremacy 169

Part 3 The Human Rights Revolution

9 Human Rights Activism in the United States: 1946-1948 181

I The Advent of Modern International Human Rights Law 181

II International Human Rights and U.S. Diplomacy 183

III International Human Rights Activism: Petitioning the United Nations 185

IV Domestic Human Rights Litigation 187

V The Truman Administration Charts a Middle Path 191

VI The Courts and Human Rights 195

VII Conservative Reaction: The American Bar Association 198

10 The Nationalists Strike Back: 1949-1951 201

I The U.N. Commission on Human Rights 202

II The Genocide Convention 204

III State Court Litigation: The Fujii Case 208

IV Scholarly Commentary on Fujii 213

V Early Steps toward a Constitutional Amendment 219

VI Major Civil Rights Cases Decided in June 1950 225

11 Fujii, Brown, and Bricker: 1952-1954 231

I The Fujii Case in the California Supreme Court 231

II The Politics of the Fujii Decision 235

III Brown and Boiling 240

IV The Bricker Amendment 248

12 Business as Usual in the Courts: 1946-1965 257

I U.S. Supreme Court Decisions in Treaty Cases 258

II Treaty Supremacy Cases in State Courts 260

III Self-Execution Cases in Lower Federal Courts 263

13 The American Law Institute and the Restatement of Foreign Relations Law 267

I The Principal Actors 268

II Early Work on the Restatement 271

III Drafting the Treaty Rules 273

IV Why Did the ALI Endorse an Optional Treaty Supremacy Rule? 283

V The Aftermath of the Second Restatement 284

Part 4 Treaty Supremacy and Constitutional Change

14 Treaty Supremacy in the Twenty-First Century 295

I Three New Versions of NSE Doctrine 296

II A Defense of the Fujii Doctrine 299

III Two Views of Optional Supremacy 303

IV Political Branch Practice and NSE Declarations 306

V Medellin v. Texas 310

VI The NPE Doctrine 316

15 Invisible Constitutional Change 319

I Comparing Bricker to the ERA 320

II What Makes Constitutional Change Invisible? 324

III Implications for Constitutional Theory 326.

Notes:

Includes bibliographical references and index.

ISBN:

9780199364022

0199364028

OCLC:

941583190