Agora reports, with translations from Danish sources:
Saturday, March 18th Jyllands-Posten broke the story about an attack by UN special rapporteur [on racism and xenophobia] Doudou Diéne on Denmark. The report has yet to be released to the public in full, but it was leaked by the UN to press sources in Denmark....Jyllands-Posten’s Excerpts (not available online):
Their[the Danish government's][the cartoon-reprinting newspapers'] uncompromising defense of a Freedom of Speech without limits or restrictions is not in accordance with the international rules which are based on a necessary balance between Freedom of Speech and Freedom of Religion, especially to combat calls for racial and religious hatred, and which all the member countries of UN have decided are the basic rules for Human Rights. This attitude shows an alarming lack of sensitivity and understanding of the religious conviction and deep emotions of the groups of society in question. Thus the newspapers strengthen the connection between Islam and Terrorism which arose after September 11th and which is the most important reason for Islamophobia being on the rise in the world at large and in their own countries.From Jyllands-Posten’s article on the case, we learn that the government is accused of breaking its international obligations by not conforming with the following three articles in the UN Covenant on Civil and Political Rights:
Article 18, paragraph three:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.Article 19, paragraph three:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.
Which limits certain rights in paragraph two:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.Article 20, paragraph two:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Of course, last Fall the UN High Commissioner for Human Rights, Louise Arbour, said something similar: Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" And the backdrop of earlier UN agency resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility" makes matters still worse.
It also reminds me of the danger posed by the recent movement supporting the use of international law to influence U.S. constitutional norms. As Prof. Peter Spiro, a supporter of the movement (and one of the leading U.S. international law scholars) has written, treaties can, in the long run, "insinuat[e] international law" that would create "a partial displacement of [U.S.] constitutional hegemony" — for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding." "In the short term," he argued, international norms would and should be "relevan[t] ... in domestic constitutional interpretation." And "[i]n the long run, [this tendency] may point to the Constitution's more complete subordination."
Spiro's article was both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run":
Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.
What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified. What U.N. commissions say and do may thus ultimately affect not just international politics, but the constitutional rights of Danes, Americans, and anyone else who has a broader view of free speech than the U.N. seems to endorse. Not a pretty prospect, it seems to me.
UPDATE: My post originally erroneously interpreted the "Their" in "Their uncompromising defense" as referring to Danish government officials; after looking at the full translation, I now realize that "Their" referred to the newspapers that reprinted the cartoons. I have corrected the post accordingly, striking out my original version and underlying the replacement. Nonetheless, the report does also criticize the Danish government — see the paragraphs following the one that contains the correction — so the overall tenor of my post is correct: It's just that the report criticizes not only the Danish government, but also the newspapers that reprinted the cartoons after the controversy erupted (when, in my view, the cartoons became even more newsworthy).
Related Posts (on one page):
- More from the UN Report Criticizing the Danish Government:
- Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:
Unless and until the people of the United States act through their representative to repeal the Constitution and give up national sovereignty, the Constitution is the highest law of the land.
What happens if me and my friends get together and start claiming to worship a god who believes deeply in free speech? Or more likely what if I insult muslims as part of an act of a christian faith, e.g., denounce them as misconstruing the bible or what have you. At best this deeply involves the government in deciding what is and what is not a religion or an appropriate religious belief.
In other words any attempt to allow the government to restrict speech in the name of religion not only strips us of our rights to speech but also of our rights to free exercise as it ultimately will require the government to distingush between the 'good' and 'bad' religious beliefs.
This being said I think your criticism of the use of international law in US constitutional interpretation isn't valid. Yes it is a good criticism of people who have this sort of super extreme belief of overriding constitutional hegemony but I suggest that the more reasonable advocates of the use of international law to inform constitutional scholarship don't see themselves as doing this at all.
In particular I think they would argue that they are actually doing just as the constitution requires by the same argument that the non-originalists make. Namely that the notion of judicial interpratation that existed during the founder's era and was anticipated in the constitution was broad and allowed the judge interpretive leeway, including such things as drawing from other sources.
I don't know if I agree with it but the argument could be made.
selessNitwitsto contaminate U.S. soil and suck at our taxpayers' teat?On topic, that's pretty disturbing. Being 'sensitive' should be a nice thing, something culturally or morally preferred, but definitely not defined by law. In the very, very long term Prof. Spiro may have a point (as global opinions shift and perhaps come together). Insofar as the short term goes, perhaps international norms should be 'relevant' to the discussion (don't dismiss something out of hand), but definitely not 'guiding' or 'precedent-setting'. That would make sense to me, though I can see an argument that even 'relevant' is a slippery slope we'd do best to avoid.
I really think you are being inappropriately dismissive of Judge Bork's view here. Or did you have a different commentator in mind who also claims that free speech rights should be informed by norms of international law and practice?
I recall a number of objections to the ICC on the basis that the ICC would essentially become a de facto appeals court above the U.S. Supreme Court.
Usually in the "oh, hell, let's not do that" sense.
I'm no lawyer but that requirement seems to bar the teaching of the Quran as non-fiction. The Quran contains all of the above. Only if it is sold as a work of fiction can one be free from the charge of advocating the vile acts and slanders it contains. When is the U.N. going to start locking up the Imams?
Seriously, the Constitution is the Supreme law of the land. By nature it is supposed to be hegemonic. If those scholars want to adopt international norms, then perhaps we should have Saudi abortion laws, Palestinian anti-homosexual laws, and Chinese religious freedom. Uh, no thanks to European laws every bit as much as the disgraceful laws I mentioned.
As far as our own Supreme Court, ask Ginsburg what she thinks.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
In my reading, this says 2 things
1) That U.S. Constitutional norms can be changed by entering into a treaty- i.e. KiethK's worry is exactly right- the U.S. could enter into a treaty with Grenada ending trial-by-jury, and the U.S. legal system would be bound to follow it.
This has been done before- the Constitution empowers Congress to grant letters of marque and reprisal, but issueing such letters is banned by international treaty to which the we are a party.
However, to the best of my knowledge it is traditional for the Senate to ratify treaties with reservations ensuring that U.S. Constitutional processes (particularly individual rights protected by the Bill of Rights) maintain their supremacy over the treaties into which we enter.
2)Anyone who holds office at either the federal or state level is bound by oath to hold the U.S. Constitution supreme. That is, unless we have enterred a treaty that does change Constitutional understandings (and the Senate has not ratified it with reservations that this not happen), no official has any legal power whatsoever to act in such a regard, or that doing so constitutes breaking the oath of office (and thus constitutes perjury). More to the point, judges who cite treaties to which we are party but with reservations, treaties to which we are not a party, or foreign laws as binding are exceeding their constitional mandate.
As far as I see it, the Senate is the one and only gatekeeper between foreign law and Constitutional practices.
You said, "In my reading, this says 2 things
1) That U.S. Constitutional norms can be changed by entering into a treaty- i.e. KiethK's worry is exactly right- the U.S. could enter into a treaty with Grenada ending trial-by-jury, and the U.S. legal system would be bound to follow it."
I take it that you're getting that from this language:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, , any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
But what the language I just quoted says to me is that the "supreme Law of the Land" is binding upon the States, and there's nothing the States can do about it. And what does that supreme Law of the Land consist of? The Constitution, federal laws and treaties, that's what! But I see nothing in that language that indicates that "Treaties made, or which shall be made, under the Authority of the United States" are superior to the Constitution, or even the "Laws of the United States." Care to elaborate on your reading?
I also don't agree that a treaty obligation to not issue letters of marque and reprisal is an example of a treaty trumping the Constitution. The Constitution says that Congress may grant letters, not that it must. If the Senate ratifies a treaty that says Congress won't do so, and Congress thereafter declines to issue such letters out of respect for that treaty, that's nothing more than Congress voluntarily refraining from exercising a discretionary power. If Congress were to later change its mind and attempt to issue such letters, and a court were to attempt to order it not to do so (an unlikely eventuality, it seems to me), and Congress were to obey the court's injunction (hah!), that would be another matter. But that possibility doesn't worry me, because the political question doctrine would seem to virtually guarantee that no court with a sane judge would try to pull such a stunt and, if one did, it would have little hope of enforcing the injunction.
1. The UCCPR is aspirational. Review the preamble: signatories have a duty "...to strive for the promotion and observance of the rights recognized in the present Covenant..." How hard? Well, Art. 1: "All peoples have the right of self-determination." Really? Do tell the Kurds. Ring the bells for the Uighurs in China. Signing the UCCPR means only that a State agrees in the principle, broadly stated. Does the U.S. oppose religious hatred? Sure. Does the U.S. Constitution allow restriction on absolute freedom of speach? Absolutely. Does this mean the U.S. is obligated to criminal religiously-oriented "hate" speech. No.
2. The UCCPR as approved by the Senate carries this restriction: "Nothing in the Covenant requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." Of course, the potential trick is on issues that the Constitution does not forbid but are not necessarily the democratic will. For example, the execution of minors. UCCPR Art. 6.5 seems to prohibit this. Because the U.S. Constitution does not require the execution of minors, and treaties are interpreted for federal States as extending to all of their constituent parts, does this mean that the federal government has a legal duty to take steps to prevent execution of minors by any of the various states? [This is purely an academic example; the U.S. entered a reservation objecting to this provision and it does not bind the U.S.]
3. "international practice outside treaties" I assume the reference is to customary international law. Practices become CIL when all (or virtually all) States conform their actual practice to a particular rule and do not 'state' to the contrary that their actions do not reflect a recognized duty to do so. The only likely circumstance such a method of forming international law that would conflict with a Constitutional provision would be that the U.S. believes for a certain period in some rule (and every other State does too) but then later thinks better of it. In practice, this is quite a limited means of forming international law on much beyond basic ideals and treaty-interpretation conventions, which is why most international law is now formed by treaty.
4. My understanding is that the Danish Constitution expressly and broadly guarantees a right to publish. So, I suspect that Denmark has made a reservation similar to that of the U.S. regarding this issue. If not, then keep in mind, Denmark has a duty only "to strive" to implement the UCCPR. I would recommend that the Danish PM answer, in that case, that Denmark will continue to strive to these ends and expects to achieve full implementation about the same time that Saudi Arabia does.
Of course the Senate can withdraw us from any treaty we're currently party to, so the example of letters of marque and reprisal would likely be moot. As a point of legality though, we would actualy have to withdraw from the treaty before we could issue them. The Constution says Congress may, but a treaty we've enterred says that it may not. Must is irrelevant. The two are in direct contraditcion, and the most recent has to be system we operate under.
I say this not because I support importing foreign legal understandings into the U.S. Quite the opposite in fact (I did after all, pretty clearly imply that judges who cite treaties that don't bind us as binding have committed at minimum perjury, by breaking their oath of office). My point is that there is a perfectly Constitutional mechanism for doing so, and that if we do want to keep our traditional understandings of freedom of speech and the like, we need to read what we sign, and that the Senate's tradition of ratifying treatties with reservations such that the treaty does not change our Constitutional practice must be preserved.
Personally, I doubt the founders forsaw that international institutions would become what they are today, or that countries would be in the business of creating treaties that bound internal conduct. The result is that there is a terribly dangerous loophole for Constitutional change we need to mind.
So this connection arose after 9/11? How about on 9/11? Or how about after the 1972 Winter Olympics? But apparently it's not the actions of Islamists that help form this connection: it's the publication of cartoons.
Is there a more immoral and unethical organization in the world than the UN? This isn't even a rhetorical question: I've racked my brains trying to come up with one and I can't.
I think it's about time to look into buying that compound in Montana...
I doubt if anybody who wishes worldwide U.N. law will be so blatant, however. Liberty is best stolen slowly, over time.
It will start with people arguing that we should 'respect' U.N. regulations and get our ideas from international 'law'. It will start with people like Ruth Ginsburg.
This argument is only to point out the inherent stupidity of such free speech restrictions. Such restrictions are furthermore extremely dangerous, since given that it is almost impossible to apply them in a rational manner, they would be applied only in situations where a very vocal group of people asks for their implementation. As a result, such a restriction would suppress the rights of the minority opinion -something which is crucial to an atmosphere of free and reasoned discourse.
1) Will the UN bureaucrat please explain how you can have Freedom of Speech with limits or restrictions ? 2) Will Justice Ginsbug please defend using international law as a reference for making constitutional decisions in light of this UN position?
On factor courts must look at when examining persuasive authority os whether the system they are looking to is ideologically in sync with their own. For example, when deciding whether to cite to court decisions from another state on self-defense, I would first look to see if the jurisdiction took the same general policy position as my state (degree of risk needed and force allowed) before deciding whether the court decisions were relevant.
It appears that the convention professor Volokh cites takes a completely different approach to free speech than the First Amendment, so it would be fair to disregard it.
I also think the Eighth Amendment is a little different, because it bans "unusual" punishment. The word "unusual" at least arguably invites comparisons. For example, if a small handful of U.S. states are the only democratic governments in the world that impose the death penalty on kids and/or the mentally retarded, that seems pretty "unusual" to me.
For example of the many nations that signed Kyoto, darn few have actually met their treaty commitments and some seem to blithely ignore them (cough Canada cough) while berating the USA for failing to sign the treaty.
Some commenters have asserted that this means treaties can defeat the Constitution.
Well, then, why can't "laws" defeat the constitution? If judicial review of Congressional acts is legitimate, and thus the Constitution can defeat mere laws, then why can't it defeat mere treaties?
I think it's safe to say Justice Ginsburg endorses this idea without much reservation, and she certainly doesn't like being criticized for it.
Those sentences give the game away in my opinion, as there are many, many "citizens of the world" in America and certainly in government who embrace this concept.
Congress simply could address this matter, but probably won't as of course the
Democratictraitor party would not go along.I also find it interesting that those who were in the thread the other week mocking critics of these ideas aren't here doing the same...
There's social pressure against it in some regards, but it's not a legal issue.
Article VI doesn't state that laws defeat the constitution- it states, "...the Laws of the United States which shall be made in Pursuance [of the Constitution]" are the supreme law of the land. In other words, Federal laws that aren't Constitutional are not the supreme law of the land. Hence the legitimacy of judicial review. The language regarding treaties makes no such qualifications, only that the treaties me made "under the Authority of the United States", i.e. ratified by the Senate. I emphasize this to show how dangerous this can be considering the drift of international law these days.
similar to that of the U.S.
No, we haven't. The prevailing interpretation of the Danish Constitution article 77 provides that the constitutional limitation extends only to a prohibition on prior restraints and other prepublication measures.
For information on the state of free speech in Denmark read.
http://www.jihadwatch.org/dhimmiwatch/archives/010638.php
Amendments ALWAYS take presedence over the text in the original document ... otherwise there is no point to making amendments.
The BoR trumps foriegn treaties, until the BoR itself is later amended.
(1) I should think that in event of conflict between the above, the sequence of listing is dispostive. The constitution trumps anything. Laws trump treaties (a statute can abrogate a treaty anytime -- just ask the Indians, or read US v. Dion, which held the Eagle Protection Act abrogated a treaty by implication).
(2) the reference to "under authority of the US" was meant to continue in effect the treaties made under the Articles of Confederation, which had not been made pursuant to the constitution because they antedated it.
Does "of any state" modify "Constitution and Laws" or merely "Laws" [in the latter case meaning that the constitution in question is the Federal one.]?
Has any court ruled on this dangling modifier?
First, while you may believe that the legitimacy of judicial review hinges upon the clause, "the Laws of the United States which shall be made in Pursuance [of the Constitution]," my reading of Marbury v. Madison suggests that the court was relying on a more fundamental principle, and would have reached the same result even absent the language you cite:
"It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
Second, while the Constitution and (valid) treaties may, collectively, be the supreme law of the land, nothing in the Constitution mandates that, when the two conflict, treaties must prevail. Your conclusion that "[when t]he two are in direct contraditcion . . . the most recent has to be system we operate under" is true only if the most recent (treaty) is at least equal in authority to the Constitution. But to say that the Constitution and treaties are the supreme law of the land vis-a-vis all other sources of law is to say nothing about the relationship between the Constitution and treaties.
To the extent that you want to rely on the explicit language of Article IV, I think it can more plausibly be read to mandate just the opposite result. The authority of the United States is created and defined -- and circumscribed -- by the Constitution, including the Bill of Rights. And only "Treaties made, or which shall be made, under the Authority of the United States" are the supreme law of the land. One could very naturally conclude that a treaty that conflicts with the Constitution is ultra vires and thus not part of the Supreme law of the land.
I'm not suggesting that you're a bad guy for thinking as you do. I just don't agree with your interpretation of the Constitution on this issue -- and I also think it's dangerous, even if well-intentioned.
Unfortunately, not a single blog has appeared about a far more serious case in Afghanistan. The democratic government there (much praised at VC as a U.S. success story) has filed capital charges against a man who converted to Christianity.
Meanwhile, our troops are dying to preserve this same democratic government. Here is the story. Perhaps somebody would like to give the case some publicity since such action might help save this man's life.
Consider the exclusionary rule. This is a judge-made rule intended to give force to the protections of the 4th and 5th Amendments by prohibiting the introduction into evidence at criminal trials of confessions and physical evidence taken or seized unconstitutionally. If the Court were to reconsider whether it still makes sense to have such a judge-made rule, would it be appropriate to consider the fact that no other nation has a similar rule or believes the exclusionary rule is necessary to protect the civil liberties and rights of their citizens? Would Justice Ginsburg approve of such analysis?
I think the anwer is obviously not. What she is arguing for (as Justice Scalia and others have pointed out) is the ability to use foreign law and practice on a purely ad hoc basis to support whatever policy judgments she favors at any given point in time. This is, to put it mildly, unprincipled.
I certainly jope you're right. I'm basing what I've said purely from the text of Article VI (as a side note, I'm not basing the justification for judicial review solely on Article VI. There are plenty of other justifications, and I was merely pointing out one of them). I'm not a lawyer and am thus unfamiliar with any cases where this issue has come up. Dave Hardy's mention of courts holding that statutes can abrogate treaties would support your view (although this does result in an odd assymetrical situaiton where it takes a supermajority of the Senate to ratify a treaty, but a simple majority of both houses of Congress to nullify it).
You said "...is true only if the most recent (treaty) is at least equal in authority to the Constitution." My point is that Article VI says precisely this. Dave Hardy suggests that the ordering suggests a heirarchy of Constitution > Federal Statutes > Treaties, but I think that reading of it that way makes hash of the meaning of "supreme law of the land." If statutes always trump treaties, then it makes no sense to include treaties as "supreme law of the land" if statutes are more supreme than them.
The other thing that did occur to me, though, is the wording of the First Amendment. If laws and treaties are equally the supreme law of the land, then "Congress shall make no law..." is equivalent to saying "The Senate shall not ratify any treaty", since either would equally alter the supreme law of the land. Since the First Amendment is an amendment, it supercedes the previous text granting powers to Congress and the Senate, i.e it would limit the Senate's power to ratify treaties in the same way it limits Congress's power to pass laws. So the hypothetical of a treaty limiting free speech would be moot, as the Senate would not be empowered to ratify any such treaty. I find this reading reassuring, as I don't like the idea of First Amendment rights being subject to the whim of 67 senatorial gasbags anymore than you do. The potential problems of this reading are twofold: 1)It would logically extend judicial review to the text of any treaty we sign, which can't possibly be the founders' intent, and 2)it doesn't necessarily protect other provisions that don't have the "Congress shall pass no law.." wording.
Like I said, I don't like the idea of treaties altering Constitutional practice (I wholeheartedly agree that this would be dangerous), and I'm making my arguments in the hope they get shot down.
Exactly. The President and Congress have only those powers delegated to them by the states via the Constitution. The states did not delegate the power to unilaterally amend the Constitution nor to subordinate the Constitution to foreign laws. Therefore treaties which subordinate the Constitution are unconstitutional, just as are laws which usurp powers reserved to the states and to the people.
The history of the 20th century to the contrary, of course.
Maybe it is because we Jews understand that blowing up buildings when we see insulting cartoons is inappropriate. But maybe I'll just tear up my check to the school and send the pieces to Spiro as performance art.
Not if by "supreme law" you mean "higher than state laws and constitutions."
As for statutes "abrogating" treaties, I don't think that's quite accurate. Treaties are really about the relationship of our government to others and usually don't have direct domestic effects. Most of them are not "self-executing," that is, they require domestic legislation to implement them. So we sign an extradition treaty that says "we will extradite under X conditions." But that, by itself, doesn't give law enforcement the authority to arrest and expel people. Instead, Congress has to pass laws that say something like "US marshals can arrest people subject to a valid extradition request."
So Congress can't abrogate the treaty itself, but it can refuse to pass the necessary domestic legislation to implement it. That may be impolite and lead to all sorts of nasty notes from foreign diplomats, but there is no judicial remedy.
Since most treaties are not by themselves judicially enforcable, a hypothetical treaty abolishing jury trials or free speech would probably require domestic legislation to implement it just like an extradition treaty.
And naturally such legislation would be unconstitutional.
Power over wildlife had been viewed as a state prerogative - naturae ferae, and all that. In Geer v. Conn. (1896) the SC held that a state could forbid export of game taken within the state without violating the Commerce Clause. The Court relied upon the principle that states "owned" the wildlife.
But after the U.S. signed the Migratory Bird Treaty with Canada (actually, the British crown), Congress passed the Migratory Bird Treaty Act to implement the Treaty. Missouri sued and in Missouri v. Holland (1920) the SC held for the U.S.
Courts soon after switched to an expanded definition of the Commerce Clause to chip away at any federal limitations until the SC in Hughes v. Okla. (1979) reversed Geer, noting the whittling down of traditional state sovereignty over wildlife "to the point of virtual extinction."
While quite an isolated topic, it is a good example of a treaty exception that begins narrowly but alters public understanding of constitutional arrangements to the point it becomes easy to disregard them altogether.