Laughing at Treaties

Abstract

This article responds to two articles by Professor John Yoo appearing in the same volume. Professor Yoo maintains that treaties, either categorically or presumptively, have the same status in the United States as in the United Kingdom, where they lack the force of domestic law, and hence are not judicially enforceable, until implemented by statute. This response argues that Yoo's thesis contradicts the text of the Constitution, which declares treaties to be the 'law of the land.' The response notes, further, that Professor Yoo's reliance on the ratification debates to read the Supremacy Clause's reference to treaties out of the Constitution rests on an undefended and implausible version of originalism which regards as binding a supposed agreement reached by Federalists and Anti-Federalists at certain ratifying conventions to read the Constitution in a way that conflicts with the text. The response goes on to explain that, in any event, Yoo's thesis cannot be squared with longstanding precedent, and that Yoo's claim that his thesis is supported by the Constitution's structural commitments is question-begging and unpersuasive.

Keywords: treaties, John Yoo, Supremacy Clause, domestic law, originalism, constitutional interpretation

JEL Classification: K00, K30, K39