Rethinking The Constitution-Treaty Relationship

An overwhelming consensus exists regarding the relationship between treaties and the Constitution-namely, that the substantive limitations which apply to any action by the federal government, such as those enumerated in the Bill of Rights or those imposed on Congress in article I, section 9, apply to the treaty power; and that the Constitution is, consequently, absolutely supreme to treaties. Although this consensus view has elicited little debate in the last half-century, we believe it is flawed, both conceptually as well as based on the historical record. In this article we defend this assertion and also propose a different model for understanding the Constitution-treaty relationship, one we believe is more accurate-that of "mutual adjustment" between treaties and the Constitution. We first examine the background of the consensus view, discuss its theoretical problems, and then propose and defend our alternative view. We then discuss some of the historical examples that bolster our theoretical claims, most notably those that involve discrimination among ports of states, extradition, Congress's authority to define piracy, and the application of due process rights to US citizens prosecuted for crimes committed while outside of the US.