This Article intervenes in the self-execution debate by revisiting the early American understandings of treaty implementation in the decades before Foster. I first assess the significant materials from the founding era, some of which have never before been discussed in this context. I also critique the interpretations of other commentators who have been too quick to find support for a broad notion of self-execution in the historical materials. Although I conclude the founding generation generally assumed treaties would be law without congressional intervention, I emphasize that the ordinary story of consensus on these issues is inaccurate. Second, I analyze post-ratification controversies over these issues. The period between ratification and Foster saw sharp dispute about the scope of the treaty power and Supremacy Clause, particularly on issues the framers and ratifiers left unresolved. Contemporary accounts often ignore or minimize the importance of this period, which is unfortunate, because it complicates the history of treaty implementation in important ways. Third, this Article recovers an important aspect of the debate that contemporary scholars downplay: the role of Congress. Congress--and not the framers, ratifiers, or Supreme Court--most fully considered the problems of treaty implementation in this period.
John T. Parry,
Congress, the Supremacy Clause, and the Implementation of Treaties,
32 Fordham Int'l L.J. 1209
Available at: http://ir.lawnet.fordham.edu/ilj/vol32/iss4/5