I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland […]
Archive | Constitutional Law
Except the Bill of Rights: The Selective-Strong Treaty Position
By Eugene Kontorovich on January 21, 2013 9:19 pm in Constitutional Law, Constitutional Theory, Federalism, Global Governance/World Government, Treaties
Generally, the entire Constitution is seen as having equal weight; there are not tiers of authority (unlike in the constitution’s of many other nations, which make certain provisions suspendable). Thus I have always been puzzled by the dominant view, well-articulated by Prof. Pildes, which manages to account for Missouri v. Holland and Reid v. Covert […]
Penn Symposium — Back to the Basics: Originalism and Textualism in Constitutional Interpretation Today
By Nick Rosenkranz on January 21, 2013 11:44 am in Constitutional Law, Constitutional Theory, Originalism
The University of Pennsylvania Journal of Constitutional Law is hosting a very promising symposium on Friday, January 25. My colleague and co-blogger Randy Barnett will be on the first panel. I will be giving the keynote address. And the second half of the symposium is largely dedicated to (eviscerating) my work!
Somin on Bond
By Nick Rosenkranz on January 20, 2013 1:58 pm in Constitutional Amendments, Constitutional Law, Treaties
Ilya Somin has a thoughtful post on U.S. v. Bond here. I have only one quibble with what he has said. Ilya agrees with Justice Scalia and me that a treaty cannot increase the legislative power of Congress. But he reaches this conclusion in a slightly different way. The difference is actually an important window […]
Treaties Can Create Domestic Law of Their Own Force, But It Does Not Follow That Treaties Can Increase The Legislative Power of Congress
Yesterday, the Supreme Court granted certiorari in United States v. Bond, which raises the question of whether a treaty can increase the legislative power of Congress. Guest Blogger Rick Pildes has already noted the cert grant here, and Ilya Somin posted his thoughtful take on the case here. I merely add that I am delighted […]
There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress
By Nick Rosenkranz on January 16, 2013 3:31 pm in Constitutional History, Constitutional Law, Tenth Amendment, Treaties
Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim […]
The Framers Gave Congress a Robust List of Powers; They Did Not Provide That These Legislative Powers Can Be Increased By Treaty
By Nick Rosenkranz on January 16, 2013 8:57 am in Constitutional History, Constitutional Law, Treaties
Rick Pildes has posted useful historical background for our debate about whether treaties can increase the legislative power of Congress. I agree with almost everything that he has said. Under the Articles of Confederation, Congress lacked the power to enforce the Treaty of Peace with Great Britain in 1782, and that defect in the Articles […]
The Supreme Court and Partisanship
I was recently asked to participate in a Zocalo Public Square forum on the Supreme Court and partisanship, which asked participants whether “the Supreme Court[is] any less partisan than the two other branches of government?” The other participants were former congressman Mickey Edwards, political scientists Tom Clark (Emory) and Timothy Johnson (Minnesota), and Talking Points […]
Does Congress have the Power to Enforce Treaties? Part I
By Prof. Rick Pildes (NYU), guest-blogging on January 14, 2013 6:58 am in Constitutional History, Constitutional Law, Constitutional Theory, International Law, Treaties
I want to thank Eugene and Nick for graciously inviting me to guest blog here. One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers. This question is also pending before the Supreme Court in Bond v. United States, in which […]
Free Online Constitutional Law Treatise, from the Library of Congress
This is The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States, with the Supplement through June 29, 2010. Though it has its limitations, it’s generally a very useful resource — and, it seems to me, a highly underpromoted one.
Treaties, the Law of Nations, and Foreign Commerce
By Eugene Kontorovich on January 13, 2013 3:50 pm in Commerce Clause, Constitutional Law, International Law, Textualism, Treaties, War and Armed Conflict
I’m delighted to see Rick Pildes will be guest-blogging, and the exchange with Nick on the Treaty Power will be a treat. I would invited them to consider an aspect of the question that has long interested me: What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All […]
Introducing Guest-Blogger Prof. Rick Pildes of NYU, to Debate Whether a Treaty Can Increase the Legislative Power of Congress
At the Federalist Society Faculty Convention in New Orleans last week, Prof. Rick Pildes of NYU and I debated whether a treaty can increase the legislative power of Congress. (Video here.) In a case called Missouri v. Holland (1920), the Court, per Justice Holmes, seemed to say that the answer is yes. In an article […]
The Trillion Dollar Heist
Whatever else one might say about the Trillion Dollar Coin, it would certainly set the stage for the ultimate heist movie. Maybe an “American Buffalo” needs Mamet, but this would write itself. In my version, a disgruntled Treasury worker swallows the coin, then goes on a hunger strike, holding the economy hostage until his demands […]
Federalist Society Talks in San Francisco on January 14
I will be talking about The Subjects of the Constitution and The Objects of the Constitution on Monday, January 14th. The first talk is for the Boalt Hall (Berkeley) Chapter of the Federalist Society, 12:45-2:00pm. The second is for the San Francisco Lawyers Chapter of the Federalist Society, at Sheppard Mullin, 4 Embarcadero Center, 17th […]
Heads of Executive Departments (E.g., Treasury, State, Etc.)
The heads of executive departments have many powers and many duties. But what are the powers and duties that the Constitution expressly assigns to them?