Constitutional Limits on Treaties

Constitutional Limits on Treaties

The preceding sections showed how much a treaty can accomplish. It overrides conflicting state law, it stands level with a federal statute, and under Missouri v. Holland it can support implementing legislation on subjects Congress could not have reached alone. That record raises the opposite question: is there anything the treaty power, or its less formal counterpart the executive agreement, cannot do? The answer comes from Reid v. Covert, where a plurality of the Court held that treaties and executive agreements are not co-equal with the Constitution and cannot authorize action that violates its specific protections.

The case arose from two civilian wives of servicemen. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she lived with him, and Clarice Covert was tried by military authorities for an alleged offense committed in Great Britain.¹ Each was tried by a court-martial, a military tribunal that gives the accused no trial by jury and none of the other Bill of Rights protections of a civilian trial, and Smith, found guilty of murder, was sentenced to life imprisonment.² The trials rested on Article 2(11) of the Uniform Code of Military Justice, which extends court-martial jurisdiction to civilians accompanying the armed forces abroad, and on executive agreements with Britain and Japan under which American military courts exercised exclusive jurisdiction over offenses by servicemen and their dependents.³

The plurality opinion came on a second pass through the Court. In the previous Term a majority had upheld the trials, reasoning that Article III and the Fifth and Sixth Amendments did not protect a citizen tried by the American government in foreign lands and that Congress could prescribe any procedure that was reasonable and consonant with due process.⁴ On rehearing the Court concluded that those earlier decisions could not stand, and it held that neither woman could constitutionally be tried by military authorities.⁵ The first decision marks the position the plurality was rejecting, which was that the Constitution's trial guarantees reach only as far as the nation's borders.

The government defended the trials as legislation necessary and proper for carrying out American obligations under the agreements with Britain and Japan.⁶ The plurality's answer runs in three steps, each with its own reason, and it begins with the premise that the Constitution accompanies the government wherever the government acts against its citizens.

The first step is that the Constitution follows the government abroad. The plurality started from the proposition that the United States is "entirely a creature of the Constitution," so its power has no other source and it may act only within the limits the Constitution imposes.⁷ A citizen therefore does not lose the shield of the Bill of Rights because the government reaches out to punish the citizen in another land.⁸ The text supports that premise. Article III, Section 2 requires jury trial for all crimes and then says that when a crime is not committed within any state, the trial is held at the place Congress directs, which shows the jury guarantee was written to reach crimes outside the states, and the Fifth and Sixth Amendments speak of "no person" and "all criminal prosecutions" with no geographic limit.⁹ The plurality also found no warrant for picking and choosing among the guarantees by labeling only some of them fundamental, and it observed that trial before an independent jury is fundamental in any event given the history of the Constitution.¹⁰

The government had leaned on In re Ross and the Insular Cases, which treated constitutional protections as inapplicable or only partly applicable outside the country. The plurality repudiated the premise that the Constitution has no force abroad and left Ross as a relic of a different era. It distinguished the Insular Cases because they concerned Congress's temporary governance, under Article IV, Section 3, of newly acquired territories with wholly different traditions, whereas the power exercised here rested on American citizenship.¹¹ It also declined to extend either line of cases, and it added that if foreign commitments ever grow so demanding that the government cannot operate within constitutional bounds, the remedy is amendment under Article V rather than exceptions read into the text.¹²

The second step is that the Supremacy Clause does not lift treaties above the Constitution. The plurality met the necessary-and-proper argument directly: "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution."¹³ Article VI makes the Constitution, laws made "in Pursuance" of it, and treaties made "under the Authority of the United States" the supreme law, and the plurality found nothing in that language or in the ratification debates suggesting that treaties escape the Constitution's limits.¹⁴ The difference in wording served a narrower purpose. It kept in force agreements made under the Articles of Confederation, including the peace treaties that ended the Revolutionary War, which could not have been made in pursuance of a Constitution that did not yet exist.¹⁵ A contrary reading would let the Executive, or the Executive and the Senate together, amend the Constitution outside Article V, because prohibitions designed to bind every branch of the national government could be nullified by an international agreement.¹⁶

A parity argument and a line of precedent reinforce that structural point. A federal statute and a treaty stand on equal footing, and a later statute inconsistent with a treaty overrides it to the extent of the conflict, so it would be anomalous to say that a treaty need not comply with the Constitution when an act of Congress that must comply can displace it.¹⁷ Each lawmaking route, bicameralism and presentment for a statute and presidential negotiation with two-thirds Senate consent for a treaty, was itself created by the Constitution, and neither can authorize what the creating document forbids. The plurality also quoted Geofroy v. Riggs for the old understanding that the treaty power does not extend so far as to authorize what the Constitution forbids.¹⁸

The third step reconciles the result with Missouri v. Holland, which the preceding section treated as a broad grant of treaty reach. Holland, the plurality said, carefully noted that the migratory bird treaty was inconsistent with no specific provision of the Constitution, and its only constitutional concern was the Tenth Amendment, which reserves undelegated powers to the states or the people.¹⁹ To the extent the United States can validly make treaties, the power has been delegated to the national government, so the Tenth Amendment is no barrier.²⁰ The two decisions therefore answer different objections. Holland disposes of a general federalism objection, which asserts that the subject belongs to the states. Reid disposes of a specific-prohibition objection, which asserts that the act violates an individual guarantee. A treaty or an agreement defeats the first kind of objection and cannot defeat the second. The plurality's answer also eased the worry that treaties might support domestic action affecting individual rights beyond the limits on other federal powers, though it left open how far a treaty may enlarge Congress's reach against the states, the live criticism of Holland discussed earlier.²¹

The opinion's status needs care, because Justice Black's opinion spoke for only four Justices.²² Justices Frankfurter and Harlan concurred only in the result, and Justice Harlan's opinion rested on the narrower ground that the offenses were capital.²³ He agreed with Justice Frankfurter that the question resembles one of due process, so that the issue is what process is due a defendant in the particular circumstances.²⁴ Justice Harlan would have held Article 2(11) invalid as applied to civilian dependents charged with capital offenses in peacetime. He was unwilling to say that every guarantee applies automatically in every foreign setting, since a full jury trial might be impractical for ordinary offenses overseas, and he treated the question as one of which guarantees should apply given the practical circumstances.²⁵ Justice Clark, joined by Justice Burton, dissented, reasoning that Congress's power to regulate the armed forces extends to civilians accompanying them and that the status-of-forces agreements were valid exercises of the treaty power.²⁶ The broad statements about the Constitution's supremacy over agreements are therefore plurality statements, and the common ground among the Justices in the majority is the narrow point that civilian dependents cannot be court-martialed for capital offenses.

The plurality's principle nonetheless operates as accepted doctrine. Reid itself involved executive agreements and a statute carrying them out, so the Court has never squarely confronted a treaty that violates the Constitution and has never invalidated a treaty on that ground, yet the proposition that a treaty must conform to constitutional restraints is generally accepted.²⁷ The theory is that a treaty, although a law of the United States, is inferior to the Constitution in the same way as a statute adopted through bicameralism and presentment.²⁸ A treaty could not, for example, impose a duty on exports, which Article I, Section 9, clause 5 forbids, and generally could not violate or alter other constitutional provisions, including those in the Bill of Rights.²⁹