A Primer on Treaties and Section 1983 after Medellin v. Texas

Abstract

This article -- part of a symposium on the Supreme Court's 2008 decision in Medellin v. Texas -- addresses the impact of that decision on the ability of plaintiffs to bring section 1983 claims against state actors for violations of treaties. Because to my knowledge there has been no comprehensive assessment of whether section 1983 applies to treaties at all, the article first considers the textual, precedential and policy-based arguments on that question. I conclude that although the question is close, section 1983 should include treaty-based claims. Turning to Medellin, the article highlights several statements in the majority opinion to the effect that treaties are not equal to federal statutes and that courts should presume that treaties do not create private rights. The article assesses the extent to which these statements will create problems for treaty claims. Notwithstanding those problems, I argue that treaties and statutes should receive similar treatment under section 1983.

Keywords: civil rights litigation, treaties, enforcement of treaties

JEL Classification: K10, K33, K41