The Unsettled Nature of the Union
Responding to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010)
Response to The Eleventh Amendment and the Nature of the Union
Vol. 123 No. 8
Author
Carlos Manuel Vázquez
Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties
Vol. 122 No. 2
Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause – federal statutes and the Constitution itself.