

Article III, Section 2, Clause 1

Throughout the Constitutional Convention, the Framers consistently expressed the desire that a national judiciary have jurisdiction over legal issues arising from the nation's international rights and obligations. The proposition was part of both the Virginia and New Jersey Plans, and the delegates put forward numerous formulations throughout the Convention. They wanted, in Edmund Randolph's words, to protect "the security of foreigners" and "the harmony of states and the citizens thereof." It was not, however, until August 27, while the delegates were refining the Committee of Detail's jurisdictional language, that John Rutledge from South Carolina rose and moved to include the words "and treaties made or which shall be made under their authority" after the "United States" in the Treaties Clause of what would become Article III. The language succinctly granted the federal judiciary jurisdiction over all treaties entered into by the United States from the moment of its independence. The proposal was unanimously approved. During ratification, Alexander Hamilton explained the provision in The Federalist No. 80, stating that the federal judicial authority should extend "to all those [cases] which involve the peace of the confederacy, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves," including treaties.

In the Judiciary Act of 1789, the First Congress granted limited jurisdiction to the newly created federal court system, and limited rights of appeal. The Supreme Court, however, refused to offer advisory opinions on the construction of treaties when asked to do so by President George Washington in 1793. It had similarly refused a request by Congress for it to review veterans' pension claims, on the grounds that it was not a judicial function and was contrary to the separation of powers.

The Court would only hear cases properly brought before it. In Section 25 of the Judiciary Act, Congress allowed appeals to the Supreme Court from the highest state court's "decisions against the validity of a...treaty,...or against any title, right, privilege, or exemption set up or claimed under any...treaty." In Owings v. Norwood's Lessee (1809), Chief Justice John Marshall explained the scope of the Court's jurisdiction under the Treaties Clause:

The reason for inserting that clause in the constitution was, that all persons who have real claims under a treaty should have their causes decided by the national tribunals. It was to avoid the apprehension as well as the danger of state prejudices....Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States; and whoever may have this right, it is to be protected. But if the person's title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be protected by the treaty.

In Martin v. Hunter's Lessee (1816), Justice Story noted that the claimant must have relied on a treaty to his detriment and that the error must be evident from the record. However, Story declared that the record need not refer to the disputed interpretation of a treaty in specific terms, for "[t]he treaty of peace was not necessary to have been stated, for it was the supreme law of the law, of which all courts must take notice." On the other hand, the Supreme Court later noted that if neither the state nor the claimant disputes the claimant's rights under a treaty, then the Supreme Court has no jurisdiction under the Judiciary Act to review the case. Gill v. Oliver's Executors (1850).

Over its history, the Court has crafted a number of prudential rules in its interpretation of treaties. It will rely on clarifications, interpretations, and understandings of a treaty formulated by the executive branch. The courts will not infer an obligation from a treaty that has not been articulated in clear terms. Society for the Propagation of the Gospel in Foreign Parts v. New Haven (1823). They will follow the evident meaning of the text; and "where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred." Bacardi Corp. of America v. Domenech (1940). Under the political-question doctrine, the courts will not determine whether a treaty obligation with another nation has been broken. Clark v. Allen (1947).

Traditionally, the courts were less likely to accord the legislative branches a say in the interpretation of a treaty. Jones v. Meehan (1899). The text would govern, Maximov v. United States (1963), unless an ambiguity caused recourse to ratification history for clarification. See Air France v. Saks (1985). However, in Sumitomo Shoji America, Inc. v. Avagliano (1982), the Court suggested that the parties' intent would control even over the text, a proposition Justice Antonin Scalia vigorously objected to in United States v. Stuart (1989), where the majority limited its investigation of treaty intent to Senate floor debates. Scalia condemned the "unprecedented" use of such materials: "The question before us in a treaty case is what the two or more sovereigns agreed to, rather than what a single one of them, or the legislature of a single one of them, thought it agreed to."

Finally, a court will only recognize the legal validity of a treaty if it has been "executed" into federal law. "Self-executing treaties" become part of the law of the United States directly, but the courts will not enforce "non-self-executing treaties" until they are carried into law by an act of Congress. (See Article VI, Clause 2). A federal statute and a properly executed treaty have equal status in law, the latter in time taking precedence. Therefore, if Congress passes a law that contradicts earlier treaty obligations of the United States, the courts will enforce the law over the treaty. In order to avoid such a conflict, however, the courts will construe a law not to be in conflict with extant treaty obligations if such a construction is at all reasonable.

The jurisdictional statute regulating treaty review is currently 28 U.S.C. § 1257. It allows appeal by writ of certiorari to the Supreme Court if the validity of a treaty or of a state statute under a treaty is questioned, or if "any right, privilege, or immunity is specially set up or claimed" under a treaty. Furthermore, under 28 U.S.C. § 1331 "district courts shall have original jurisdiction of all civil actions arising under...treaties of the United States." District courts may also take jurisdiction over cases brought in state court involving treaties under the complicated rules of pendent jurisdiction.

Dennis W. Arrow
Professor of Law
Associate Director, Native American Legal Resource Center
Associate Director, Center for the Study of State Constitutional Law and Government
Oklahoma City University School of Law