Article Treaty Textualism Andrew Tuttt I. IN TRO DU CTIO N ............................................................................................................................ 284 II. THE MOVE TO "ORIGINAL METHODS" ORIGINALISM.................................................................. 289 III. THE ORIGINAL UNDERSTANDING OF TREATY INTERPRETATION................................................. 292 A. The "Most Highly Qualified Publicists" and the Late Eighteenth-Century Law of N atio n s..............................................................................................................................2 92 B. Interpretation According to Vattel, Grotius, Pufendorf, Burlamaqui, Rutherforth, B acon, and B lackstone ..................................................................................................... 295 1. V attel's The Law of N ations.................................................................................. 295 2. Grotius's The Rights of War and Peace................................................................ 299 3. Pufendorf s Of the Law of Nature and Nations .................................................... 302 4. Burlamaqui's The PrinciplesofNatural and PoliticLaw .................................... 305 5. Other Authorities (Blackstone, Lee, Bacon, Bynkershoek, Rutherforth and W o lff) .................................................................................................................... 30 7 C. Intepretation as a Distinctive Concern in the Framing and Ratification.......................... 309 1. The Radicalism of a Written Constitution ........................... 309 2. The Framers' Confidence in Judicial Expertise and Integrity as a Restraint on Discretion ......................................................................................................... 3 13 3. International Trust Through Judicial Treaty Interpretation .................................. 315 4. How Treaty Textualism Influences the Self-Execution Debate............................ 319 D . Treaty Textualism in the Founding Era............................................................................ 321 1. Treaty Interpretation Under the Articles of Confederation................................... 321 2. Treaty Interpretation in the Pre-Marshall Court, 1790-1801 ................................ 326 3. Treaty Interpretation in the Marshall Court, 1801-1835....................................... 336 E. Treaty Textualism as Intepretive Consensus....................................................................353 IV. TREATY INTERPRETATION AND CONSTITUTIONAL DESIGN......................................................... 353 V . C ON CLU SIO N ................................................................................................................................ 357 t Law Clerk to the Honorable Cornelia T.L. Pillard, U.S. Court of Appeals for the District of Columbia. Visiting Fellow, Yale Law School Information Society Project. B.S., Duke University, 2009. J.D., Yale University, 2013. This essay has benefitted from the contributions of many people-too many to thank individually here. But two must be mentioned. The first is Judge Brett Kavanaugh whose tremendous course on National Security and Foreign Affairs is the foundation for so much of my understanding of the law of nature and nations, and for whom this Article was initially prepared as a final paper. The idea for this Article came from him; I merely filled in the citations. The second individual is Owen Fiss, a man deserving of praise beyond measure. His contributions, large and small, to me personally and to the law generally, are too numerous to recount. This Article is dedicated to him. Finally, I wish to thank the editors of the Yale Journal of InternationalLaw, among them Deborah Francois, Jee Young Kim, Alisa Shekhtman, Will Smiley, and most especially Allison Day and Charles Dameron, for their tireless efforts and infinite understanding. 284 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 39: 283 [Al doubts . respecting the meaning of a treaty ... are to be heard and decided in the Courts of Justice having cognizance of the causes in which they arise, and whose duty it is to determine them according to the rules and maxims establishedby the laws of nationsfor the interpretationof treaties. John Jay, Draft Letter to the States to Accompany the Resolutions Passed by the Continental Congress on March 21, 1787. Agreed to Unanimously, April 13, 1787.1 Gov. Randolph observed the difficulty in establishing the powers of the judiciary--the object however at present is to establish this principle, to wit, the security of foreigners where treaties are in their favor . Agreed to unanimously. Edmund Randolph, Records of the Federal Convention, June 13, 1787.2 I. INTRODUCTION In Medellin v. Texas, a high profile case of the U.S. Supreme Court's 2008 Term, Chief Justice Roberts and Justice Breyer engaged in a sharp exchange over the proper approach to treaty interpretation. Medellin raised the question of whether decisions by the International Court of Justice (ICJ) are "non-self-executing"-that is, whether they only become federal law if Congress passes a statute "executing" them. 4 The Court was divided. Six Justices held that judgments by the ICJ do in fact require further action by Congress before they become law. Chief Justice Roberts, writing for the Court, argued that when it comes to treaties, the text governs, 5 and the text and structure of the ICJ treaty anticipated future legislative action because it required only that parties to the ICJ proceeding "undertake[] to comply" with the ICJ's decision. Justice Stevens, concurring in the judgment, agreed: "in my view, the words 'undertakes to comply'- while not the model of either a self-executing or a non-self-executing commitment-are most naturally read as a promise to take additional steps to enforce ICJ judgments."7 In his dissent, Justice Breyer argued that the majority 1. 4 SECRET JOURNALS OF THE ACTS AND PROCEEDINGS OF CONGRESS: FROM THE FIRST MEETING THEREOF TO THE DISSOLUTION OF THE CONFEDERATION, BY THE ADOPTION OF THE CONSTITUTION OF THE UNITED STATES 329, 331-32 (Thomas B. Wait ed., Boston 1821) [hereinafter 4 SECRET JOURNALS OF CONGRESS]. 2. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 238 (Max Farrand ed., 1911) (1787) [hereinafter I FARRAND'S RECORDS]. 3. 552 U.S. 491 (2008). 4. Id.at 496-99. 5. Id. at 506, 514, 518-19. 6. Id. at 508. 7. Id. at 533 (Stevens, J., concurring); see also id. at 534 ("Absent a presumption one way or the other, the best reading of the words 'undertakes to comply' is, in my judgment, one that contemplates future action by the political branches."). 2014] Treaty Textualism 285 had reached the wrong conclusion because it placed too much emphasis on treaty language and broke from the Court's settled approach to treaty interpretation, which called for the Court to look to a wide array of other interpretive materials.8 The majority, in his view, "look[ed] for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language)."9 That's when they broke out the history books. Defending the majority's reliance on the text of the treaty, Chief Justice Roberts cited two opinions by Chief Justice Marshall, though only for the proposition that "[t]he interpretive approach employed by the Court today-resorting to the text-is hardly novel."' 0 Justice Breyer responded with his own account of the history. It is "difficult to reconcile the majority's holdings with the workable Constitution that the Founders envisaged," " he wrote. Had Chief Justice Marshall considered the question in Medellin, he would have asked "[d]oes . [the] treaty provision address the 'Judicial' Branch rather than the 'Political Branches' of Government,"' 2 not searched for an express statement about self- execution "the text cannot [possibly] contain." 3 Medellin drew a wave of criticism, much of it also grounded in history. Two distinct strands of criticism arose. First, many scholars argued that the majority's holding could not be "reconciled with any identifiable version of originalism" because it broke with the original understanding of self-execution in the Supremacy Clause, which these scholars contend mandates a strong interpretive presumption that all treaties are self-executing.14 A second strand criticized the Court's textualism as too wooden and inflexible to account for the unique needs of modem treaty-making.' 5 Some scholars called Medellin's textualist approach a "new paradigm"1 6 and a "normalization" of treaty 8. See id. at 541, 549-50 (Breyer, J., dissenting). 9. Id. at 562 (Breyer, J., dissenting). 10. Id. at 514. The Chief Justice's statement was itself hardly a ringing endorsement of the historical foundations of treaty textualism. 11. Id. at 567 (Breyer, J., dissenting). 12. Id. 13. Id. at 562 (Breyer, J., dissenting). 14. D. A. Jeremy Telman, Medellin and Originalism, 68 MD. L. REV. 377, 377 (2009); see Carlos Manuel Vazquez, The Separationof Powers as a Safeguard of Nationalism, 83 NOTRE DAME L. REV. 1601, 1617-18 (2008); Carlos Manuel Vazquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 599, 689-90 (2008) [hereinafter Vazquez, Treaties as Law of the Land]; see also David H. Moore, Do U.S. Courts DiscriminateAgainst Treaties? Equivalence,Duality, and Non-Self-Execution, 110 COLuM. L. REV. 2228, 2230-33