Treaties, International Law, And Constitutional Rights. (Symposium on Treaties, Enforcement, And U.S. Sovereignty‪)‬

INTRODUCTION Can a treaty override an individual right protected under the Constitution? In its 1957 decision in Reid v. Covert, the Supreme Court held that the "obvious and decisive answer to this, of course, is that 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." (1) There is perhaps no element of the foreign relations law canon more universally held than the proposition that constitutional rights prevail as against inconsistent international agreements; a consensus of commentators, (2) courts, (3) and other constitutional actors (4) has long held that, in this respect, the Constitution stands supreme. Even as other elements of modern foreign relations law have come under vigorous assault. (5) this constraint on the treaty power has gone unchallenged. Indeed, across the political spectrum, the rule is counted among those whose deep entrenchment eliminates the need for justification--so much so that it has attracted almost no scholarly attention in recent decades.