What Senate Democrats should ask Judge Gorsuch

During confirmation hearings, Senate Democrats should ask Judge Neil Gorsuch a simple question: Is he prepared to apply the Constitution’s treaty supremacy rule in accordance with the original understanding? 

His answer will reveal whether he is a principled originalist, who adheres to the Founders’ Constitution even when that conflicts with his political views, or an ideological originalist, who utilizes originalist rhetoric to advance a conservative political agenda.

Article VI of the Constitution states that “all Treaties . . . made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”

As originally understood, the treaty supremacy rule contained two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law. 

{mosads}The Founders adopted the rule to solve a specific problem. Before adoption of the Constitution, state governments refused to comply with U.S. treaty obligations. Treaty violations by the states created serious foreign policy problems for the nation. James Madison and others highlighted this problem as one of the primary reasons for adopting a new Constitution.

The Founders designed the Constitution to ensure that state governments would not violate U.S. treaty obligations without express authorization from Congress.

The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. Then along came international human rights law. The United States ratified the UN Charter in 1945. The treaty obligates UN member states to promote “human rights . . . for all without distinction as to race.” 

Beginning in the late 1940s, litigants filed dozens of suits challenging discriminatory state laws by invoking the Charter together with the treaty supremacy rule. In the landmark Fujii case (1950), a court applied the traditional treaty supremacy rule to invalidate a California law that discriminated against Japanese nationals. The court held that state law conflicted with the Charter and the Charter superseded California law under Article VI of the Constitution.

Fujii sparked a political firestorm because it implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. 

In response, conservatives lobbied for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. Bricker’s opponents resisted the proposed Amendment, but at the cost of reinterpreting the Constitution. Controversy over the Bricker Amendment gave rise to a new constitutional understanding—that the treaty supremacy rule is an optional rule that applies only to “self-executing” treaties. 

Thus, modern doctrine holds that the treaty makers may opt out of the treaty supremacy rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing.”

All this matters today. 

In Medellín v. Texas (2008), Justice Scalia joined an opinion by Chief Justice Roberts that applied the modern, optional treaty supremacy rule to reject the claims of 51 Mexican nationals on death row in Texas whose treaty rights were violated. Medellín was directly contrary to the original understanding because the Court permitted Texas to violate U.S. treaty obligations without authorization from Congress or the President. 

In contrast, the Founders adopted the Constitution’s treaty supremacy rule precisely to prevent state governments from violating a valid, ratified treaty without authorization from the federal political branches.

The Founders’ understanding is rarely as clear as it is with the treaty supremacy rule.  Frequently, Justices who say they are relying on the original views of the Constitution are in fact merely projecting their own prejudices onto the past.  

But that is not the case here.  

For just this reason, Justice Scalia’s silent concurrence in Medellín demonstrates that his originalism was not principled, but ideological. He was perfectly willing to jettison his professed commitment to originalism in cases where an originalist approach would yield results contrary to his conservative political agenda.

That is why Senate Democrats should ask Judge Gorsuch whether he is prepared to apply the treaty supremacy rule in conformity with the original understanding. His answer will reveal a good deal about whether he is a principled originalist or another ideologue relying on history as he would like it to be.

David L. Sloss is a law professor at Santa Clara University and author of The Death of Treaty Supremacy (OUP 2016). Martin S. Flaherty is a professor at Fordham Law School and Princeton.

The views expressed by contributors are their own and are not the views of The Hill.