Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles of Confederation in the Virginia state legislature in 1777 - recurring time and time again throughout the Eighteenth, Nineteenth, and early Twentieth centuries, building to a climax in the Supreme Court\u27s famous 1920 decision Missouri v. Holland, continuing in the 1950s with the Bricker Amendment controversy, and reemerging as recently as last year in an article published in this Review - the issue has been among the most passionately disputed questions in our constitutional history. Although temporarily in hibernation, it threatens presently to break out again into full-blown conflict

Is NAFTA Constitutional?

Article 2, section 2 of the Constitution requires treaties to be approved by two thirds of the Senate. But many international accords, including the North American Free Trade Agreement (NAFTA) and the World Trade Organization, are approved as congressionalexecutive agreements by simple majorities of both Houses. This is a modem development, departing radically from the constitutional practice of the first 150 years of the Republic. The congressional-executive agreement arose as part of the constitutional revolution of the Roosevelt years. Using the transformative techniques developed during the conflict between the New Deal and the Old Court in the 1930S, the President and House of Representatives gained the consent of the Senate to a revision of the foreign affairs power in the aftermath of the Second World War. The end of Roosevelt\u27s fourth term saw the dawn of the modem Constitution - in which President and Congress have the authority to commit the nation on any important matter of domestic or foreign policy. Ackerman and Golove\u27s story challenges originalist accounts that suppose the Treaty Clause to have a plain meaning that cannot be altered without formal amendment. It also challenges theories that suppose that the last war to generate a major constitutional change ended in 1865. And yet, the processes of twentieth-century transformation can be ignored only by mystifying the ways in which modem Americans exercise their popular sovereignty

The Limits of International Law Symposium

Authors Jack L. Goldsmith and Eric A. Posner joined other top international law scholars in the fall of 2005 to discuss and critique The Limits of International Law, recently published by Oxford University Press

Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles of Confederation in the Virginia state legislature in 1777 - recurring time and time again throughout the Eighteenth, Nineteenth, and early Twentieth centuries, building to a climax in the Supreme Court\u27s famous 1920 decision Missouri v. Holland, continuing in the 1950s with the Bricker Amendment controversy, and reemerging as recently as last year in an article published in this Review - the issue has been among the most passionately disputed questions in our constitutional history. Although temporarily in hibernation, it threatens presently to break out again into full-blown conflict