Duncan B. Hollis (Temple Univ. – Law) has posted Treaties in the Supreme Court, 1861-1900 (in The U.S. Supreme Court and International Law: Continuity or Change?, W. Dodge, M. Ramsey & D. Sloss eds., forthcoming). Here’s the abstract:
This chapter, part of a larger book reviewing the history of the U.S. Supreme Court’s approach to international law, examines the Court’s treaty doctrine between the poles of the Civil and Spanish-American Wars. It finds that – even as the period exhibited much continuity in the Court’s approach to treaties – there were substantial areas of evolution. The chapter offers three different explanatory lenses to examine that evolution: (i) the rise of Congress’s relative power in domestic politics, (ii) U.S. foreign affairs’ increased attention to non-European treaties, and (iii) increasing jurisprudential emphasis on positivism in domestic and international circles.
In terms of the treaty doctrine itself, the Chapter reveals the Court’s continued fidelity to several treaty principles developed at the Framing, especially the ability of treaties to trump state law and the capacity of private individuals to invoke rights and receive judicial remedies pursuant to U.S. treaty obligations. At the same time, it details the origins of the Court’s adoption of a theory of equivalence between statutes and treaties that paved the way for the later-in-time rule. In addition, the Chapter reviews the Court’s often inconsistent experimentation with different methods for interpreting treaties and its elaboration in theory – if not in practice – of the concept of non-self-executing treaties. All told, therefore, this Chapter reveals a more nuanced – and important – set of treaty rulings during the post-Civil War period than previous foreign affairs law scholarship has recognized.