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Columbia Law Review COLUMBIA LAW REVIEW VOL. 99 DECEMBER 1999 NO. 8 GLOBALISM AND THE CONSTITUTION: TREATIES, NON-SELF-EXECUTION, AND THE ORIGINAL UNDERSTANDING John C. Yoo* As the globalization of society and the economy accelerates, treaties will come to assume a significant role in the regulation of domestic affairs. This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation. It examines the relationship between the treaty power and the legislative power during the colonial, revolutionary, Framing, and early nationalperiods to reconstruct the Framers' understandings. It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution'screation of a nationallegislature that could independently execute treaty obligations. The Framers also anticipatedthat Congress's control over treaty implementa- tion through legislation would constitute an importantcheck on the executive branch'spower in foreign affairs. TABLE OF CONTENTS Introduction .................................................... 1956 I. Treaties, Non-Self-Execution, and the Internationalist View ..................................................... 1962 A. The Constitutional Text ................................ 1962 B. Globalization and the PoliticalBranches: Non-Self- Execution ............................................. 1967 C. Self-Execution: The InternationalistView ................. 1976 II. The Framing and the Treaty Power ...................... 1982 A. Eighteenth-Century Political Thought and the Practice of British Foreign Policy .................................. 1986 * Professor of Law, University of California at Berkeley School of Law (Boalt Hall); John M. Olin Foundation Faculty Fellow. I would like to thank Curt Bradley, Jesse Choper, Brad Clark, Bill Eskridge, Marty Flaherty, Jack Goldsmith, David Golove, Andrew Guzman, Larry Kramer, John Manning, Laurent Mayali, Paul Mishkin, Saikrishna Prakash, Mike Ramsey, Peter Spiro, Bill Treanor, Carlos Vdzquez, and Cornelius A. Vermeule for providing comments on the manuscript. I also have benefited from conversations with John Dwyer, Harry Scheiber, Joe Sax, Judge Laurence Silberman, and Judge Abraham Sofaer. Different portions of this paper have been greatly improved thanks to the comments received at the annual meeting of the Society for Historians of American Foreign Relations, at faculty workshops at the University of San Diego School of Law, the University of Virginia School of Law, and the William and Mary School of Law, and at a meeting of the international alumni of the Boalt Hall School of Law. I am grateful for the financial support provided by the John M. Olin Foundation and the Boalt Hall Fund. 1955 HeinOnline -- 99 Colum. L. Rev. 1955 1999 1956 COLUMBIA LAW REVIEW [Vol. 99:1955 1. Eighteenth-Century Political and Legal Theory ......... 1987 2. The Making of British ForeignPolicy at the Time of the Framing.......................................... 1997 B. Treatymaking and the Power to Legislate in Colonial and Revolutionary America ................................. 2004 1. Revolutionary Ideology and the Power to Legislate...... 2005 2. The Articles of Confederation and Treatymaking ....... 2009 3. Enforcing Treaties During the CriticalPeriod .......... 2013 Il. The Constitutional Convention and the Ratification ...... 2024 A. Drafting the Treaty Clause .............................. 2026 1. Stage One: The VirginiaPlan and the Negative on State Laws ............................................. 2027 2. The New Jersey Plan and the Triumph of State Sovereignty ........................................ 2029 3. The Resurrection of Majoritarianism................. 2032 4. Conclusions ....................................... 2037 B. The Ratification Debates and the Rise of Non-Self- Execution ............................................. 2040 1. Anti-FederalistCriticisms of the Treaty Power.......... 2041 2. Pennsylvania and the Rise of the Legislative Power .... 2043 3. New York, The Federalist, and the Role of Congress in the Treaty Power................................... 2048 4. Virginia and the Triumph of the Power to Legislate .... 2059 5. Conclusions ....................................... 2069 C. Post-Ratification: Ware v. Hylton, the Jay Treaty, and Foster v. Neilson ..................................... 2074 1. Ware v. Hylton and the Early Strains of Self- Execution ......................................... 2075 2. The Jay Treaty and Non-Sef-Execution in Congress .... 2080 3. Foster v. Neilson and Non-Self-Execution in Practice........................................... 2086 Conclusions ..................................................... 2091 INTRODUCrION We live in a world of treaties. Today, treaties regulate aspects of poli- tics, economics, and law that affect the everyday lives of many Americans. The United Nations treaty governs matters such as war and peace and establishes a mechanism for cooperation in maintaining international se- curity.' Other agreements oblige the United States to send its men and women into battle to protect our allies.2 The General Agreement on Tar- iffs and Trade,3 as recently strengthened by the World Trade Organiza- 1. See U.N. Charter art. 1, para. 1. 2. See, e.g., North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243. 3. See General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194. HeinOnline -- 99 Colum. L. Rev. 1956 1999 1999] GLOBALISM AND THE CONSTITUTION 1957 tion Agreement,4 sets the rules of international trade, which now com- prises approximately one-third of the nation's economic activity.5 The North American Free Trade Agreement creates a free market among the United States, Canada, and Mexico that subjects American businesses and jobs to tougher competition and opens new opportunities for economic growth. 6 Various conventions establish the minimum level of individual rights that the United States owes its citizens.7 Other agreements regu- late the environment and conserve wildlife, 8 while contemplated treaties would require the United States to protect biodiversity and to limit its energy use and industrial pollution. 9 As the breadth of our treaty obligations has broadened, their depth has increased as well. Recent treaties have sought to establish universal norms of public and private conduct that require multilateral agreement to ensure worldwide compliance. International agreements aim to pre- vent private conduct that harms the environment, human rights conven- tions seek to control the manner in which a state treats its citizens, and agreements such as the WTO attempt to regulate international economic activity. Some agreements even have created elaborate institutional 4. See Multilateral Trade Negotiations: Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, Apr. 15, 1994, 108 Stat. 4809, 33 I.L.M. 1125. 5. See Economic Report of the President, February 1998, H.R. Doc. No. 105-176, at 216 (2d Sess. 1998). 6. See North American Free Trade Agreement, Dec. 17, 1992, 107 Stat. 2057, 32 I.L.M. 289. 7. See, e.g., International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 (providing for equal rights, a right against arbitrary arrest, a right to marriage, and restricted use of the death penalty, and establishing a Human Rights Committee); International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1960, 993 U.N.T.S. 3 (providing for rights to self determination and nondiscrimination, and to economic rights including economic assistance). 8. See, e.g., Protocol on Substances that Deplete the Ozone Layer, S. Treaty Doc. No. 100-10, at 1541 (1987) (establishing specific obligations to reduce use of chloroflourocarbons and other chemicals that deplete the ozone layer); Vienna Convention for the Protection of the Ozone Layer, S. Treaty Doc. No. 99-9, at 1516 (1985) (providing cooperation and research on preventing depletion of stratospheric ozone); Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 34 U.S.T. 3043, 18 I.L.M. 1442 (agreeing on protocols for controlling emissions of sulfur, nitrogen oxides, heavy metals and organic pollutants); Agreement on the Conservation of Polar Bears, Nov. 15, 1973, 27 U.S.T. 3918 (regulating sustainable use of polar bears for hunting, and providing for habitat protection); Convention for the Conservation of Antarctic SealsJune 1, 1972, 29 U.S.T. 441 (enumerating species of seals that will not be killed or captured in the agreed Antarctic areas); International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72 (establishing an International Whaling Commission to regulate whaling and to research whales). 9. See, e.g., Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874 (agreeing on principles of participation and cooperation in environmental management); Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849; Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (creating general obligations to develop plans to monitor biodiversity, conserve ecosystems, and encourage diversity within species). HeinOnline -- 99 Colum. L. Rev. 1957 1999 1958 COLUMBIA LAW REVIEW [Vol. 99:1955 mechanisms and verification organizations to monitor adherence with treaty norms. As Abram and Antonia Chayes have observed, while "[s]uch treaties
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