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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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The Death of Treaty Supremacy: An Invisible Constitutional Change

ISBN13: 9780199364022
Published: November 2016
Publisher: Oxford University Press USA
Country of Publication: USA
Format: Hardback
Price: £64.00

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This book provides the first detailed history of the Constitution's treaty supremacy rule, describing a process of invisible constitutional change. The traditional supremacy rule provided that all treaties supersede conflicting state laws, and precluded state governments from violating U.S. treaty obligations. In 1945, the U.S. ratified the UN Charter to obligate nations to promote human rights "for all without distinction as to race." This decision implied that the United States had effectively abrogated Jim Crow laws throughout the South. In response, the Bricker Amendment was created to abolish the treaty supremacy rule, and although the amendment never passed, Bricker's supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment was ground-breaking, as it created a novel exception that permits state governments to violate non-self-executing treaties without authorization from the federal political branches. This had significant implications for U.S. foreign policy and for U.S. compliance with its treaty obligations, ultimately leading to the demise of treaty supremacy.

Public International Law, Other Jurisdictions , USA
List of Tables
Part One: Treaty Supremacy at the Founding
Chapter One: The Origins of Treaty Supremacy, 1776-1787
Chapter Two: State Ratification Debates
Chapter Three: Treaty Supremacy in the 1790s
Part Two: Treaty Supremacy from 1800 to 1945
Introduction to Part Two
Chapter Four: Foster v. Neilson
Chapter Five: Treaties and State Law
Chapter Six: Self-Execution in the Political Branches
Chapter Seven: Self-Execution in the Federal Courts
Chapter Eight: Seeds of Change
Part Three: The Human Rights Revolution
Introduction to Part Three
Chapter Nine: Human Rights Activism in the United States: 1946-48
Chapter Ten: The Nationalists Strike Back: 1949-51
Chapter Eleven: Fujii, Brown and Bricker: 1952-54
Chapter Twelve: Business as Usual in the Courts: 1946-65
Chapter Thirteen: The American Law Institute and the Restatement of Foreign Relations Law
Part Four: Treaty Supremacy and Constitutional Change
Chapter Fourteen: Treaty Supremacy in the 21st Century
Chapter Fifteen: Invisible Constitutional Change
List of Abbreviations Used in Endnotes