A series of entries from the blog The Volokh Conspiracy, debating whether a treaty can increase Congress’s legislative power and delving into the potential conflict between federal treaty power and states’ power to self-regulate, included a set of posts by Richard Pildes, Sudler Family Professor of Constitutional Law. The entire series appears in the Spring 2013 issue of the online journal The Post: Good Scholarship from the Internet, part of the Journal of Law, which reprints blog posts its editorial board finds particularly noteworthy.
In her introduction to the issue, editor-in-chief Anna Ivey suggests that the exchange between Pildes and his colleagues “demonstrated the full potential of legal blogging at its finest: real-time parsing of important ideas and observations in a way that’s much harder to do (at least in a span of two weeks) in a more traditional law review format.”
Inspired by a January 2013 debate between Pildes and Professor Nick Rosenkranz of Georgetown University Law Center at the annual Federalist Society Faculty Convention, the exchange includes not only Pildes and Rosenkranz but also Professor Eugene Kontorovich of Northwestern University School of Law and Professor Ilya Somin of George Mason University School of Law.
Arguing that the Constitution does give Congress increased legislative power through treaties, Pildes asserts that “ensuring that the United States would be able to credibly make and faithfully honor international agreements was one of the central purposes driving the creation of the Constitution.... Although treaties were made difficult to enter into, requiring 2/3 support in the Senate for ratification, the Constitution sought to ensure that the U.S. would have the capacity to honor valid treaties. Thus, the Constitution expressly makes treaties part of the ‘supreme law of the land.'” Pildes added, however, that “the national government cannot validly enter into a treaty solely for the purpose of gaining additional domestic legislative powers. Pretextual treaties of this sort would not be valid exercises of the treaty power; such a treaty would not be a means of gaining the cooperation of other nations in ways that advance the legitimate national interests of the national government.”
Posted on May 21, 2013