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The Death of Treaty Supremacy - An Invisible Constitutional Change (Hardcover)
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The Death of Treaty Supremacy - An Invisible Constitutional Change (Hardcover)
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This book provides the first detailed history of the Constitution's
treaty supremacy rule. It describes a process of invisible
constitutional change. The treaty supremacy rule was a bedrock
principle of constitutional law for more than 150 years. It
provided that treaties are supreme over state law and that courts
have a constitutional duty to apply treaties that conflict with
state laws. The rule ensured that state governments did not violate
U.S. treaty obligations without authorization from the federal
political branches. In 1945, the United States ratified the UN
Charter, which obligates nations to promote human rights for all
without distinction as to race. In 1950, a California court applied
the Charters human rights provisions along with the traditional
supremacy rule to invalidate a state law that discriminated against
Japanese nationals. The implications were shocking: the decision
implied that the United States had abrogated Jim Crow laws
throughout the South by ratifying the UN Charter. Conservatives
reacted by lobbying for a constitutional amendment, known as the
Bricker Amendment, to abolish the treaty supremacy rule. The
amendment never passed, but Bricker's supporters achieved their
goals through de facto constitutional change. Before 1945, the
treaty supremacy rule was a mandatory constitutional rule that
applied to all treaties. The de facto Bricker Amendment converted
the rule into an optional rule that applies only to self-executing
treaties. Under the modern rule, state governments are allowed to
violate national treaty obligationsincluding international human
rights obligationsthat are embodied in non-self-executing treaties.
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