In previous posts, I have argued that the Constitution does not give the federal government the power to make binding treaties on issues that are otherwise outside the scope of federal power (see here, here, and here). In his latest contribution to our debate, guest blogger Rick Pildes argues that this position would make it impossible for Congress to enforce peace treaties:
The Constitution was specifically designed to overcome “The Treaty of Peace” problem: peace treaties often require a nation to honor the claims of foreign creditors, eg, and Congress was giving the power to override state contract/debt laws in order to enforce the terms under which the Revolutionary War was ended. So far, I don’t think any of the responses from Nick, Ilya, and Eugene have yet explained how their views would enable Congress successfully to enforce the Treaty of Peace. In my view, it’s a serious strike against any interpretation of the Constitution if it cannot explain how the Constitution solves one of the fundamental problems to which the Constitution was specifically designed to be a solution.
I don’t think this is a difficult problem for my view at all. Article I of the Constitution gives Congress the power to “regulate Commerce with foreign Nations.” Borrowing money from foreign creditors is clearly “commerce with foreign nations” even under a relatively narrow definition of commerce. Therefore, enforcing this kind of term is perfectly consistent with my argument, as are other treaty terms regulating international commercial transactions. Obviously, my approach does bar some conceivable peace treaty terms. But the same is true of Rick Pildes’ own view, since he argues that treaties that require violations of the Bill of Rights are unconstitutional. Under that approach, for example, we could not enforce a treaty requiring the United States to punish public criticism of the enemy state’s government, or one requiring bench trials rather than jury trials for Americans accused of committing crimes against citizens of that state.
As I discussed here, any limits of any kind on the treaty power might sometimes bar a treaty that many believe it is in our interests to sign. But that in no way proves that the treaty power is either unlimited or constrained only by the Bill of Rights. Co-blogger Eugene Kontorovich highlights the arbitrariness of the latter view in this post.
UPDATE: Duke law professor Curtis Bradley, a leading academic expert on the treaty power, comments on our debate at the Lawfare blog. Here’s a brief excerpt:
In arguing for a treaty power unconstrained by federalism, Rick emphasizes that the Founders wanted the United States to be able to comply with its treaty commitments. That is certainly true, but I don’t see how it advances his argument. After all, a desire that the United States comply with its obligations is not the same as a desire for an unlimited ability to create obligations. Rick’s point might be that in international affairs there will at times be situations in which the United States needs to be able to trade away important constitutional values. But if that is his point, then he has no basis for insisting, as he does, that the treaty power is subject to individual rights limitations. After all, there might be national affairs interests that could call for a restriction of rights. One might respond, of course, that part of the reason for having constitutional protections is to disallow the government from making such tradeoffs, but then the same point could be made about the constitutional value of federalism.
I agree with most of the points Bradley makes in his post. As they say, read the whole thing.