“The Treaty Power and the Supremacy Clause: Rethinking Reid v. Covert in a Global Context.”
Abstract
In this article I want to consider whether the authority of the United States to enter into treaties in a global environment is limited by constitutional constraints. The issue arises because a reasonable interpretation of the language of Article VI would place the treaty power on the same status-footing as the Constitution of the United States. But if that is the case, then presumably a treaty might be designed that could delegate constitutional powers to bodies like the United Nations, the North Atlantic Treaty Organization (“NATO”), the International Monetary Fund, the World Trade Organization (“WTO”), or other international organizations. Or, a treaty might be designed to reserve particular constitutional rights – like the Sixth Amendment right to trial by jury in criminal cases – from operating within certain contexts as might concern areas over which the United States exercises territorial jurisdiction, for example, Guam, Puerto Rico, and in other contexts where only international agreements apply.