13 janvier 2017

OUVRAGE : D.L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change

David L. SLOSS

This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating US treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President. In 1945, the US ratified the UN Charter, which obligates nations to promote human rights "for all without distinction as to race."

In 1950, a California court applied the Charter's human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule.

The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The exception permits state governments to violate NSE treaties without authorization from the federal political branches. The death of treaty supremacy has significant implications for US foreign policy and for US compliance with its treaty obligations.


Part I. Treaty Supremacy at the Founding

Chapter 1. The Origins of Treaty Supremacy, 1776-1787
Chapter 2. State Ratification Debates
Chapter 3. Treaty Supremacy in the 1790s
Part 2. Treaty Supremacy from 1800 to 1945
Chapter 4. Foster v. Neilson
Chapter 5. Treaties and State Law
Chapter 6. Self-Execution in the Political Branches
Chapter 7. Self-Execution in the Federal Courts
Chapter 8. Seeds of Change
Part 3. The Human Rights Revolution
Chapter 9. Human Rights Activism in the United States: 1946-48
Chapter 10. The Nationalists Strike Back: 1949-51
Chapter 11. Fujii, Brown and Bricker: 1952-54
Chapter 12. Business as Usual in the Courts: 1946-65
Chapter 13. The American Law Institute and the Restatement of Foreign Relations Law
Part 4. Treaty Supremacy and Constitutional Change
Chapter 14. Treaty Supremacy in the 21st Century
Chapter 15. Invisible Constitutional Change
List of Abbreviations Used in Endnotes

David S. SLOSS, The Death of Treaty Supremacy: An Invisible Constitutional Change, Oxford, Oxford University Press, 2016 (472 pp.)

David L. Sloss is Professor of Law at Santa Clara University School of Law. His scholarship focuses on the application of international law in domestic courts, with specializations in international human rights, treaties, U.S. foreign relations law, and constitutional law. He is the editor of The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009), and co-editor of International Law in the U.S. Supreme Court: Continuity and Change (2011). He has published numerous articles on the history of U.S. foreign affairs law and the judicial enforcement of treaties in domestic courts. Professor Sloss received his B.A. from Hampshire College, his M.P.P. from the Kennedy School of Government at Harvard, and his J.D. from Stanford Law School. He taught for nine years at Saint Louis University School of Law. Before he was a law professor, he worked for the U.S. government on arms control and nuclear proliferation issues.

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