The Treaty Paradox

[A18]

The Slave Trade Clause famously declares that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person." U.S. Const., Art. I, Sect. 9, cl. 1.

A masterly command of euphemism, no? But that isn't the only remarkable thing about this clause. Still more remarkable was its Article V entrenchment: "[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first . . . Clause[] in the Ninth Section of the first Article."

Prior to the year 1808, then, it would seem that the national government was literally powerless (as a matter of law, anyway) to interfere with the slave trade. Even a constitutional amendment could not effect this.*

But notice that the Slave Trade Clause, by its own terms, applies only to "the Congress." It is doubtful whether anyone could claim with a straight face that a treaty is an act of Congress. Treaties are made by the president, "by and with the Advice and Consent of the Senate" (with the important limitation that two-thirds of senators present must concur).

Suppose we turn back the clock to the year (say) 1800. In our fantasy world, the United States signs on to a treaty that categorically forbids any signatory from importing slaves.** The treaty is ratified in perfect conformity with Article II, and the federal government moves to immediately enforce it as self-executing "supreme Law of the Land."

Constitutional or unconstitutional? A finding of constitutionality, as much as we would like it, is very counterintuitive in light of the extraordinary protection of Article V.

I have chosen the Slave Trade Clause for a reason. Morally repugnant as it is to us today, its Article V "super-entrenchment" makes it a prime candidate for this reductio ad absurdum. But the same basic analysis applies to the more popular First Amendment, which begins "Congress shall make no law..." (Our platonic guardians on the Supreme Court have assured us that "due process of law" encompass virtually all of the guarantees in the Bill of Rights, including this one. But that seems indefensible as a matter of constitutional interpretation, as opposed to raw decree.)

One way out of this conundrum is to repudiate the theory of self-executing treaties. In the absence of an implementing statute, the argument would go, no treaty can ever be enforceable as domestic law. Another argument might try to find some intrinsic limitation on the treaty-making power itself.

For now, I offer no conclusions; this post is long enough as it is. Someone else can have the first word on the merits.

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*--Well, absent repealing that provision of Article V, and then moving on to repeal the Slave Trade Clause. But even the former might have been an amendment that "in any Manner affect[ed]" the clause; it would have "affect[ed]" it by removing its entrenchment.
**--Yes, I mean the people as well.

[A18]

I would argue that, if a power is vested in Congress, then the President may not exercise that same power, by ratifying a treaty or otherwise. Thus, a treaty may not prohibit the slave trade (since such a prohibition is a regulation of international commerce).

I agree that this rule, if accepted, would resolve our slave-trade puzzle. Even so, it leaves much to be desired--at least by itself, and without more.

In the first place, it is somewhat odd to suppose that a treaty may do only and precisely those things that are placed beyond the reach of Congress by the enumerated powers scheme. May Congress adopt a treaty that provides (to use some purely random examples, of course) for a federal remedy for violence against women, or perhaps federal punishment for carrying a gun to school?

But let's set that aside. This construction (by itself) also seems to leave First Amendment freedoms at the mercy of treaty-makers. Suppose that, as a condition to the Louisiana Purchase, Napoleon insisted on a treaty provision barring any criticism of the French government (or, worse still, French wine?). In our fantasy world, President Jefferson and a sufficient supermajority in the Senate reluctantly agree. Because Congress has no authority, under the enumerated powers scheme, to interfere with speech and press within the various states, the president and the Senate may therefore (yes, therefore) adopt a treaty to do precisely that. And because the First Amendment commands only that "Congress shall make no law...," that treaty would be valid. (Ironically, the Article IV Property Clause might mean that freedom of speech and press were secure within the Louisiana territory itself. Go West, young man, indeed.)

In short, your rule makes sense out of the slave trade provisions. But it is not sufficient to make sense out of the broader constitutional structure.

[A18]

That's not what I said. If a power is delegated to Congress, the President may not exercise it. ... However, the inverse of this rule is not true. Just because a power is not delegated to Congress, it does not follow that it must belong to the President. In other words, the non-inclusion of a power among the powers of Congress is a necessary condition for the exercise of that power by treaty; it is not a sufficient condition.

No, I realize you did not claim this was the sole limitation. That's why I included the phrases "by itself, and without more," "(by itself)," and "not sufficient." The purpose of my post was not so much to criticize your standard--indeed, I largely agree with your textual exegesis--but to point out its limits.