4 Supreme Court as Accomplice: Judicial Backing for a Despotic Presidency Marshall L. DeRosa Commencing Demagogues, Ending Tyrants

Despotism was a paramount concern of the framers of the U.S. Constitution, particularly executive despotism. In their minds, it was a phenomenon that would surely become manifest if favorable circumstances were to arise; hence, their distrust of a unitary democracy headed by a strong chief executive. Publius acknowledged that the “road to the introduction of despotism” is constructed by men who begin their careers “by paying an obsequious court to the people, commencing demagogues and ending tyrants.” The framers, especially the Anti-Federalists, were very prescient. The concentration of national power has the commensurate effect of heightening the probability of presidential despotism, a despotism adept at “overturning the liberties of republics,” that is, the states.[1]

To the extent that power is usurped from the American republics (that is, the states in their corporate and collective identities) by the national government, the nation is moved further down the road to presidential despotism. Constitutional liberalism[2] is supposedly the bulwark against the emergence of national despotism. As is evidenced by the framers’ commitment to limited government via separation of powers, checks and balances, and states’ rights federalism, political power was to be decentralized:

But the great security against a gradual concentration of the several powers in the same department consist in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. . . . [And in] the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.[3]

But this scheme, for all intents and purposes, is failing. Power is steadily flowing from the states to the national center. The rights of the people in the collective national sense and the requisite national power to enforce those rights—states’ rights police powers notwithstanding—constitute the foundation of presidential despotism. To the extent that the national government is the arbiter of rights, to that same extent the “double security to the rights of the people” is diminished. The formula is quite elementary: The greater the national government’s policy prerogatives regarding rights is combined with increased presidential policy implementation responsibilities to ensure those rights, equals enhanced opportunities for presidential despotism.

The promise of the original constitutional system of separation of powers and federalism notwithstanding, constitutional liberalism contains the seeds of its own destruction and the inherent development of presidential powers which feed off tensions between states’ rights and national government hegemony.[4] This does not mean that states’ rights and nationalism are inherently incompatible. If states have an exit from overbearing national power—for example, interposition of national policy within the state’s jurisdiction or, ultimately, state secession—the states would have the wherewithal to forestall presidential despotism.[5] But in the absence of genuine (that is, interposition or secession) states’ rights, the U.S. presidency has become the repository of horrendously extensive national powers. This is not to imply that the U.S. Congress, the courts, the states, or elections do not actually and potentially place checks on presidential powers. However, it does imply that when the national branches act pursuant to a common policy objective, and the president is the “chief executive” of that policy objective, limits on presidential powers are amorphous at best. It is also not meant to imply that despotism at the state level, with the state governor as the despot, is impossible; less probable, yes, but not impossible. If citizens are genuinely politically virtuous and capable of self-government, their liberties are more secure at the state level due to the proximity of the government to the governed. For a variety of reasons, the former can more effectively be held accountable to the governed.

The absence of presidential accountability to the governed and the president’s reliance on coercion are key to understanding the despotic nature of presidential powers. Policy-sanctioned—in contradistinction to authentic constitutionally-sanctioned—presidential coercion against regional or numerical minorities is tantamount to despotism, perhaps soft in one instance and hard in another, but despotism nonetheless.

In the American political tradition, constitutional liberalism is premised upon several key tenets: the rule of law; the institutional—legislative, executive, judicial—separation of powers; and states’ rights. The rule of law and separation of powers were theoretically and historically the weakest bulwarks against the emergence of unitary national powers and have steadily collapsed under the weight of Supreme Court endorsed nationalism.[6] States’ rights was the strongest bulwark and required the most persistently coercive efforts to extinguish liberty’s last refuge from the omnipotence.[7]

This is not hyperbole. The reality of presidential despotism need not be consciously experienced by the governed in order to be validated. Moreover, one should not expect a servile, inattentive, or hyper-nationalistic people to either care about or object to a soft and presumably benevolent presidential despotism. But it is not the purpose here to quibble over whether an American president acted despotically, either occasionally (the War between the States was undoubtedly presidential despotism on a large scale) or continuously (many of the regulatory policies of national bureaucracies are likely manifestations of presidential despotic powers).

However, if it can be substantiated that the constitutional foundation has been laid for presidential despotism, that in and of itself is a significant cause for concern. More to the point, within current American constitutionalism one finds circumstances not only conducive to, but necessitating, presidential despotism. Such being the case, perhaps the only effective response is the reactionary imperative of states’ rights.

The utilization of states’ rights is not to be confused with minimal discretionary powers of states in a more or less unitary national government. The term ultimately involves the bond which ties the states collectively together in an associational Union that is administered by the national government as the agent of the states. The nature of the bond is critical to understanding the nature of the Union and the legitimate powers of the national government in relation to the association of states. Within the scheme of republicanism, it is significant if the bond maintaining the association of states is primarily consensual or coercive. It is a self-evident truth—one that no intellectually honest person can deny—that the Constitution of 1787 would not have been ratified had the document specified that the Union would be coercively maintained against the will of one or more states. The prospect of applying coercion against a state or states was anathema to the political culture upon which the national government was crafted, and for good reason. The framers were focused upon holding the national government accountable to the member states, in contradistinction to a unitary model of individual Americans. They realized that the latter would be an easy target for national oppression, whereas quasi-autonomous states would be much more formidable obstacles to nationally generated despotism. The transition from a states’ rights federalism to a unitary nationalism with an actual or potential presidential despot at its head was the most significant development in American politics. This transition is manifested in American case law, and at the core of the relevant case law are the confluent themes of fundamental rights and governmental uniformity.

Confederate Republic

It is somewhat awkward to refer to Publius as partial to states’ rights; but whether out of political necessity or theoretical conviction, Publius articulated a states’-rights position, especially when contrasted to post-World War II standards. Not wavering in his advocacy that “A firm Union will be of the utmost moment to the peace and liberty of the states,” he equated the proposed Constitution with a confederate republic:

The definition of a confederate republic seems simply to be “an assemblage of societies,” or an association of two or more states into one state. The extent, modifications, and objects of federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.[8]

As a consequence of the successful American Revolution (1776–1783), the relations between rulers and ruled finalized the devolution of political power from the British Crown and Parliament to the states. The final paragraph of the Declaration of Independence and Article II of the Articles of Confederation confirmed the sovereign and independent status of the states.[9] Of course, the relationship between rulers and ruled underwent another transformation in 1789, when the U.S. Constitution was ratified.

The movement from the Articles of Confederation to the U.S. Constitution was theoretically sloppy, perhaps necessarily so. Ambiguity was requisite to ratification. If, for example, the Constitution specified the scope of congressional commerce powers, the Anti-Federalists probably would have prevailed in the ratification struggle. The significant substantive questions regarding the scope of congressional commerce powers was only authoritatively answered by the Supreme Court subsequent to ratification. Thus, the ambiguity of the U.S. Constitution not only has profoundly empowered the Supreme Court as the self-proclaimed official expounder, but, more significantly, has left the essence of the Constitution—the locus of sovereignty conjoined with the rule of law—a spectacle to unfold in the rough-and-tumble of partisan politics.

Publius’s model of federalism juxtaposes the states “for local purposes” with “perfect subordination to the general authority of the union.” The juxtaposition is not problematical, providing there is a clear and consensual partition of policy prerogatives. But herein lies the rub. It was quite obvious that disputes between the states and national authorities over policy jurisdictions would arise. If the states were to be “constituent parts of the national sovereignty,” then perfect subordination to general authority would be realized by such disputes being resolved by national authority, with the latter having the authority to abrogate a state’s independence by controlling its internal affairs on the grounds of general authority Even though Publius’s version of federalism sanctions perfect subordination of a state and a regional minority of states to a national majority it also leaves intact substantial policy functions for the states. National supremacy was constrained by the constitutional distinction between delegated and reserved powers. Of course, there would be “perfect state subordination” to the constitutional exercise of delegated powers. But neither the 1787 Constitutional Convention nor the state ratifying conventions resolved that there would be or should be perfect state subordination to the unconstitutional exercise of power or that the U.S. Supreme Court was authorized to provide constitutional legitimacy to what a state deemed to be the unconstitutional national usurpation of the state’s reserved powers.

As important as the more conspicuous nineteenth-century landmark cases regarding national supremacy are,[10] they did not strip the states of the institutional wherewithal to administer their respective internal affairs vis-à-vis the national government; moreover, they did not deprive the states of adjudicating disputes regarding the terms of their association with the national sovereign. And even though the ambiguous distinction between local and general authority regarding commerce was substantially expounded upon to the benefit of national supremacy states’ rights was still left largely intact by those cases. Most importantly as long as state supreme courts were co-equal with the U.S. Supreme Court in delineating the ambiguities of the U.S. Constitution, the states retained an important measure of security against national coercion and constitutionally suspect intrusions into their internal affairs. But once the U.S. Supreme Court extended its jurisdiction to the point of subordinating state supreme courts to the U.S. Supreme Court, a major bulwark of the federal component of checks and balances was compromised. In the words of Justice Benjamin Curtis—a Whig nationalist—“Let it be remembered, also, for just now we may be in some danger of forgetting it, that questions of jurisdiction were questions of power as between the United States and the several states.”[11]

The transition from states’ rights federalism to unitary nationalism is manifested in American case law, and at the center of the transition is the issue of judicial jurisdiction. Even if it is to be assumed that the fluidity is attributable to a circumstantial delegation of power from the states to the national government, with the latter exercising more extensive policy functions to keep pace with developing economic and social circumstances, it does not necessarily follow that legal disputes stemming from ever-expanding national policy functions must be ultimately adjudicated in national—in contradistinction to state—courts. The landmark case McCulloch v. Maryland (1819) established national public policy supremacy vis-à-vis state reserved powers; but McCulloch was not as significant a decision as the extension of U.S. Supreme Court jurisdictional supremacy over state courts, an effect that was sealed by the landmark case Martin v. Hunter’s Lessee (1816). Martin deprived the states of the jurisprudential wherewithal to challenge national government usurpation of their reserved powers and thereby removed a significant check on presidential despotism.

Virginia’s Juridical Interposition

U.S. Supreme Court supremacy over its state court counterparts rests on a weak ideological reed, in contradistinction to constitutional principle. The facts behind Martin v. Hunter are complex and intricately tied to the earlier case of Fairfax’s Devisee v. Hunter’s Lessee (1812).[12] Both cases involved Virginia’s obligations under the 1783 Treaty of Paris and the 1794 Jay’s Treaty; the treaties protected British Loyalists’ landholdings from state confiscation. The relevant provisions are:

Article IV—It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of full value in sterling money, of all bona fide debts heretofore contracted. Article V—It is agreed that the Congress shall earnestly recommend it to the legislatures of the respective states, to provide for the restitution of all estates, rights and properties which have been confiscated, belonging to real British subjects, and also of estates, rights, and properties of persons resident in districts in the possession of His Majesties arms, and who have not borne arms against the United states. . . . Article VI—That there shall be no future confiscations made, nor any prosecutions commenced against any person or persons for, or by reason of the part which he or they may have taken in the present war; and that no person shall, on that account, suffer any future loss or damage, either in his person, liberty or property; and that those who may be in confinement on such charges, at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prosecution so commenced be discontinued.[13]

In October 1783 (the treaty dates from September 1783) Virginia enacted the following:

Whereas it is stipulated, the sixth article of the treaty of peace between the United states and the King of Great Britain, that there shall be no future confiscations made; Be it enacted, That no future confiscations shall be made, any law to the contrary notwithstanding; provided, that this act shall not extend to any suit, pending in any Court, which was commenced prior to the ratification of the treaty of peace.[14]

According to Virginia, seizure of the disputed land was initiated prior to 1783 and therefore was not affected by the 1783 and 1794 treaties.[15] The legal issues were: (1) Did the treaty of peace release the confiscation? (2) Could a subsequent state act affect the terms of the treaty? And (3) there was the overriding question of jurisdiction: Did the U.S. Supreme Court have jurisdiction to decide this case and on what constitutional grounds? Our focus will be on the third issue.

First and foremost, much has been made of the supremacy clause in Article VI: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The wording clearly stipulates that if state laws or constitutional provisions are repugnant to a U.S. treaty, the state laws and constitutional provisions are to be of no effect. The wording, however, does not establish which high court, U.S. or state, is the court of last resort in determining what is or is not pursuant to the U.S. Constitution. As a matter of fact, the supremacy clause instructs state judges how to rule when state laws or constitutions are repugnant to the U.S. Constitution, laws, or treaties.

Nevertheless, section 25 of the 1789 Judiciary Act did grant appellate jurisdiction from state high courts to the U.S. Supreme Court. But Virginia held section 25 to be unconstitutional, on the grounds that it is inconsistent with the “genius, spirit, and tenor of the constitution.”[16] Upon receipt of the writ of error to the Virginia Court of Appeals to obey the mandate issued as a result of Fairfax v. Hunter, the Virginia court issued the judgment that

the court is unanimously of the opinion that the appellate power of the Supreme Court of the United States does not extend to this court under a sound construction of the constitution of the United States; that so much of the 25th section of the act of Congress, to establish judicial courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the constitution of the United States. That the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice [judgment void due to a lack of jurisdiction] in relation to this court, and that obedience to its mandate be declined by the court.[17]

The pertinent element of this case is the role of the courts in the enforceability of a treaty upon a reluctant state. Publius realized the magnitude of this question. On the one hand he acknowledged the role of coercion in sanctioning the enforcement of laws. In the context of American federalism, the operation of national laws affects individuals, bypassing the states; this innovation was considered to be a substantial improvement over the Articles of Confederation. However, a Supreme Court mandate directed against a state high court pitted the national government against a state. According to Publius,

In an association where the general authority is confined to collective bodies of the communities [that is, states] that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.[18]

But Publius also conceded that state court cases that are appealed to the U.S. Supreme Court involve the “collective bodies of the communities,” state and national, and potentially involve a “state of war” if presidential coercion is utilized to give effect to a U.S. Supreme Court ruling:

The difference between a federal and national government, as it relates to the operation of the government . . . that in the former the powers operate on the political bodies composing the confederacy in their political capacities; in the latter, on individual citizens composing the nation in their individual capacities. On trying the Constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only.[19]

Publius’s quest for national harmony is especially evidenced by his reluctance to leave the jurisdiction of the U.S. Supreme Court strictly to those types of controversies found in Article III; its jurisdiction was also to include all controversies “in which the state tribunals cannot be supposed to be impartial or unbiased.”[20] Was Publius sanctioning a “state of war” and military execution of the laws by the U.S. president against a state if its high court refused to comply with a U.S. Supreme Court ruling? Yes, if “every breach of the laws must involve a state of war” and “military execution the only instrument of civil obedience.”[21]

Due to the role of the courts in the articulation of what the law is and the adjudication of disputes accordingly, the centrality of the relation between the U.S. Supreme Court and the states’ counterparts is inescapable. That relation is a remnant of the old Articles of Confederation, because it potentially pits the national government against a state in its corporate capacity Publius sighed that the

great and radical vice in the construction of the existing Confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of whom they consist. . . . The consequence of this is that though in theory their resolutions concerning those objects are laws constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the states observe or disregard at their option.[22]

This was precisely the scenario presented to Justice Story by Virginia’s refusal to acknowledge the Supreme Court’s jurisdiction over its highest court. Should Virginia prevail, American constitutional development would have taken a sharp turn in the direction of states’ rights. Both Justices Story and Johnson realized the stakes and were quite determined in their reaffirmation of nationalism and, if necessary, presidential military execution of a writ of the U.S. Supreme Court against a state.

A Storied Nationalism

Justice Story was perceptive in realizing the implications of Virginia’s position. His response to Virginia’s recalcitrance was threefold: First, Virginia lacked authority to challenge the jurisdiction of the U.S. Supreme Court on this issue.[23] Virginia lacked authority because sovereignty on this issue was strictly national. According to Justice Story, “The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’”[24] It was the American people who authorized the Congress to enact the 25th section of the Judiciary Act; it was the American people who subordinated Virginia’s courts to the Supreme Court. Upon ratification of the Constitution, Virginia acquiesced. Second, the power to subordinate Virginia’s courts need not be explicit. Due to the “inscrutable purposes of Providence,” the national Congress may “adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require.”[25] Third, although the Constitution does not explicitly extend national court jurisdiction over the state high courts, based upon the necessity of national supremacy, the American people authorized the Congress to do so. The 1789 Judiciary Act

is the voice of the American people solemnly declared, in establishing one great department [the Congress] of that government which was, in many respects, national, and in all supreme. It is a part of the very same instrument which was to act not merely upon individuals, but upon states; and to deprive them altogether of the exercise of some powers of sovereignty, and to restrain and regulate them in the exercise of others.[26]

According to Martin v. Hunter, Virginia’s refusal to acknowledge the U.S. Supreme Court’s jurisdiction jeopardized case law uniformity and national safety. Consequently the U.S. Supreme Court’s “original or appellate jurisdiction ought not, therefore, to be restrained, but should be commensurate with the mischiefs intended to be remedied, and, of course, should extend to all cases whatsoever.”[27] Operating under this rule of construction, whatever the Supreme Court deems to be the “supreme law of the land,” state court judges have an “imperative obligation in their official, and not merely in their private, capacities,” to give effect to the Supreme Court ruling.[28] Clarifying the national government’s “imperative obligation,” in the concurring opinion Justice Johnson sanctioned the use of force against state courts that failed to comply with Supreme Court mandates.[29]

Conspicuously absent from Story’s majority opinion are serious concerns for popular control or popular consent over national public policy and the integral role of American federalism—the context into which American jurisprudence was to be lodged. He dismissed Virginia’s claim that extending Supreme Court appellate jurisdiction over state high courts would be “inconsistent with the genius of our government and the spirit of the constitution” by reiterating his claim that Virginia lacks sovereignty over those delegated (expansively defined) national powers. Moreover, he made the peculiar claim that “It is always a doubtful course to argue against the use or existence of a power, from the possibility of its abuse.”[30] Story willingly jettisoned a fundamental axiom of the constitutional order: that checks and balances, the rule of law, separation of powers, federalism, and frequent elections, are premised upon the potential abuse of power by those who wield power. Moreover, one is reminded of the linchpin of Chief Justice Marshall’s specious opinion in McCulloch v. Maryland (1819) that states lack the power to tax agents of the national government (such as a branch of the Bank of the U.S.), because the power to tax is the power to destroy; in other words, it would constitute “the possibility of abuse.” It is also antithetical to Publius’s admonition regarding factions that

If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.[31]

Martin v. Hunter laid the foundation for national judicial supremacy. Consequently, an important component of American federalism—a sort of judicial parity between the U.S. and state courts—was displaced and along with it an important check on the emergence of presidential despotism.

Ideological Blueprint

Judicial review is not devoid of ideological conduct and not, as political mythology would leave us to believe, above politics. It may appear to be merely a matter of interpreting the Constitution and statutes and to be more remote from the factional politics than the elected branches of government. But judicial review is politics to the extent that it is ideological, and that extent has grown to be very great. Because the bases of judicial review are the Justices’ respective ideologies (for example, originalism versus nonoriginalism, interpretivism versus noninterpretivism), judicial review by necessity is policy-oriented. According to Oakeshott,

political ideology purports to be an abstract principle, or set of related abstract principles, which has been independently premeditated. It supplies in advance of the activity of attending to the arrangements of society a formulated end to be pursued, and in so doing it provides a means of distinguishing between those desires which ought to be encouraged and those which ought to be suppressed or redirected.[32]

It would be difficult to substantiate the existence of a politics without a policy, or a policy not premised upon an ideology. To be politically motivated requires an ideology, simply defined as “knowledge of the ends to be pursued,” a knowledge of what is to be done.[33] Significantly, political ideology is neither an “independently acquired knowledge of the ends to be pursued,” nor a purely empirical activity.” Rather, ideology is the product of political activity:

It is supposed that a political ideology is the product of intellectual premeditation and that, because it is a body of principles not itself in debt to the activity of attending to the arrangements of a society, it is able to determine and guide the direction of that activity. If, however, we consider more closely the character of a political ideology, we find at once that this supposition is falsified. So far from a political ideology being the quasi-divine parent of political activity, it turns out to be its earthly stepchild. Instead of an independently premeditated scheme of ends to be pursued, it is a system of ideas abstracted from the manner in which people have been accustomed to go about the business of attending to the arrangements of their societies. . . . In short, political activity comes first and a political ideology follows after.[34]

As Oakeshott points out, political ideology “cannot be premeditated in advance of a manner of attending to the arrangements of a society.” Political ideology “no more existed in advance of political practice than a cookery book exists in advance of knowing how to cook.”[35] Similarly, judicial review is not the product of independent inquiries of the constitutional text and precedent, but rather political recipes for particular occasions. Supreme Court decisions are ideological statements “attending to the arrangements of society.” Even a contemporary hard-core originalist has essentially adopted the politics of the framers, that is, their preferred arrangements of society.

Moreover, abstractions derived from concrete political activity—the building blocks of ideology—whether the terminology is natural rights or universal human rights or nationalism or states’ rights or social justice, are always inadequate, because the abstractions fail to capture the nuances and complexities of the concrete activity. In the words of Oakeshott, “the important point is that, at most, an ideology is an abbreviation of some manner of concrete activity.”[36] Abstractions may vary by degrees the manner and extent to which they approximate concrete activities, but all fall short. The concrete political activity, imperfections included, is complete, but when contrasted to an idealized abstraction that is in and of itself incomplete but assumed to be complete, the political concrete activity is mistakenly considered to be ideologically remediable. Such being the case, Justice Story’s national judicial supremacy is carte blanche for ideological pursuit of incorporating a majority of the Justices’ ideological dreams into American case law; that is, American public policy. Unfortunately the nationalistic utopian dreams of the justices will prove to be the nightmares of the people living under the yoke of presidential despotism. Because state supreme courts have been mostly stripped of the capacity to check nationally, or for that matter internationally, ideological political pursuits—and thanks to Presidents Jackson and Lincoln the states lack the peaceful alternatives of interposition and secession—the stage has been set for the president, with a wink and a nod from the U.S. Congress and Supreme Court, to rearrange society as he deems appropriate.

The Human Family’s President

The U.S. president, in his role of chief executive, is instrumental in the enforcement of coercive policies far removed from the framers’ vision of popular control and popular consent. The negation of popular control is all the more difficult to discern because a major bulwark against the implementation of policies independent of popular control was torn down early on in the republic’s development—a viable and meaningful judicial federalism. The originalist judicial federalism manifested in Virginia’s position in Martin v. Hunter is so alien to contemporary perspectives regarding national and the emerging international judicial supremacy, that parity between the U.S. and state supreme courts is rejected prima facie.

This is especially troublesome in light of the fact that treaties and international agreements provide the Supreme Court with the requisite raw juridical materials to incorporate internationally-generated public policies into U.S. case law. The Supreme Court’s evolved relevance to the rule of law poses a special problem to the popular control embodied in states’ rights. The shift from state-based popular control to nationally- and even internationally-generated public policies facilitates a type of elitism anathema to a federal system in which

The powers of the general government and of the state, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres.[37]

A meaningful judicial federalism would contribute to the national and state governments “acting separately and independently of each other” when separateness and independence are constitutionally sanctioned; and that determination is not the exclusive prerogative of the U.S. Supreme Court.

Obviously, jurisdictional disputes between the U.S. and state supreme courts will arise and the relationship between the two court systems will, at times, be confrontational. But judicial uniformity resting upon community self-determination is not by default inferior to judicial efficiency that procures coercively enforced national standards, or more specifically, what the framers would have recognized as despotism. Moreover, uniformity does not necessarily originate within or stop at national boundaries. For example, the United Nations Charter; the U.N. Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights (ICESCR); and the International Covenant on Civil and Political Rights (ICCPR) potentially constitute the incorporation of internationally generated policies into national standards. This juridical process has precedence, such as Fourteenth Amendment incorporation developments, but now the supremacy clause of Article 6 may prove to be the primary conduit of national uniformity. Like ticking time bombs, these international documents are ripe for detonation by future U.S. Supreme Court justices if they should decide to level the few remaining pillars of states’ rights judicial federalism. A brief overview will suffice.

Revealing the preference for increasingly larger political jurisdictions, the preamble to the 1948 United Nations Declaration of Human Rights is applicable to “all members of the human family . . . the aspiration of the common people” and “the peoples of the United Nations.”[38] The significance of a U.N. that is representative of the “human family” in contradistinction to exclusively representing nations, is that the former constitutes mandates superseding national standards. Nations that deviate from acceptable universal norms by violating the rights of members of the human family will be held accountable. From a juridical perspective the supremacy of universal standards over nation-based standards could be rationalized on the grounds that nations have been lawfully integrated by these U.N. documents into the “human family,” an emerging political unit in its own right.

There is precedent for judicially integrating sovereign political units (the states) into a more encompassing unitary political unit (the nation). As early as 1793 Justice Wilson addressed a similar issue:

This is a case of uncommon magnitude. One of the parties to it is a state; certainly respectable, claiming to be sovereign. The question to be determined is whether this state, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the supreme court [sic] of the United States? The question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this—do the people of the United States form a nation?

Relying on the “We the People” phrase of the preamble, Justice Wilson answered with an emphatic yes.[39] Chief Justice Marshall, in the case that established legislative national supremacy over the states, deduced from the preamble’s “We the People” that the national “government proceeds directly from the people and is ordained and established in the name of the people.”[40] As the people of the states were integrated into the people of the United States—essentially a gradual transfer of sovereignty from the states to the nation—the people of the nation could be integrated into the U.N.’s human family—once again, a merging of sovereignties into a sovereignty by judicial fiat.

The march toward integration took a major step in 1976 via the ICESCR, the ICCPR, and The Optional Protocol. These U.N. agreements supplement the “moral force” of the 1948 Declaration with “legal obligations.”[41] Nevertheless, the 1948 Declaration is the central document with subsequent documents functioning as clarifications and implementation guidelines.[42]

The ICCPR most directly subsumes national and state identities into that of the “human family.” The document proclaims that “the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” The potential impact for the U.S. is the shifting of sovereignty away from the states and nation to the U.N.—the governing unit representing the human family and determining what is a universal fundamental right and providing remedies for violations thereof. When those rights have been violated, the nations are primarily responsible for providing effective remedies, but not exclusively. The fact that a remedy is an inherent right of the claimant, domestic law notwithstanding, is a significant development, because the claimant need not be a citizen of the nation against which the claim is filed. Article 2 stipulates that

Each state Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other status.[43]

To remove any ambiguity that citizens of a country may enjoy rights and privileges denied to noncitizens but nevertheless citizens of the human family Article 26 of the ICCPR stipulates that

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national, or social origin, property, birth, or other status.[44]

Part V of the ICCPR established the Human Rights Committee and procedures for an ad hoc Conciliation Commission. The committee consists of eighteen nationals, who “shall serve in their personal capacity,” national allegiances notwithstanding.[45] To wit, “Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.” The Committee serves as a court of last resort after it has “ascertained that all domestic remedies have been invoked and exhausted.”[46]

Following similar rules of procedure—excepting the closed sessions—nations that acceded to the Optional Protocol to the ICCPR are open to claims by “individuals subject to its jurisdiction who claim to be victims of human rights violations.”[47] In the absence of the Optional Protocol, an individual was dependent on another nation to file a claim on his behalf. For example, a noncitizen inhabitant of the U.S. seeking protection against a state for rights violations would have to secure the assistance of a second nation to file a complaint. But under the Optional Protocol, the individual may directly file his claim before the Human Rights Committee.[48] This is a major departure from traditional international law that governed relations between nations. This departure is the “real test of the effectiveness of a system of international protection for human rights.” Traditionally, the individual had no locus standi within the context of international law. But that traditional rule was premised upon the relevance of sovereign nation-states, a relevance no longer sustainable in a world where “a common standard of achievement for all peoples and all nations is the goal.”[49]

International Remedies for Domestic Disputes

Several points need to be emphasized. First, the guarantees against discrimination include public and private, governmental and nongovernmental. Second, the reliance on the word “persons” is a direct link to the human family without the intermediate nation-states. Third, the American federal system of reserved powers to the states are negated theoretically and technically, as is evidenced by Articles 28, 50, and 10 of the ICESCR, ICCPR, and Optional Protocol respectively, which stipulate that “The provisions of the present Covenant shall extend to all parts of federal states without any limitations or exceptions”, such as the Tenth Amendment to the U.S. Constitution. Nonetheless, the more immediate threat to sovereignty in the U.S. is the U.S. Supreme Court. The current prevailing political reality precludes any U.N. tribunal (whether the International Court of Justice or the Human Rights Commission) from directly implementing its “human family” agenda.[50] But this is not to say that the U.S. does not have certain legal obligations as a consequence of ratifying these U.N. agreements, obligations enforceable in U.S. courts. The ICCPR stipulates that

To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy . . . by competent judicial, administrative or legislative authorities, or by any other competent authority provided by the legal system of the state [nation], and to develop the possibilities of judicial remedies.[51]

It was the clear intent of the drafters of the ICCPR and the Optional Protocol to ensure injunctive relief through domestic courts first and foremost, leaving open the option of international remedies if domestic legal systems were to fail.[52] In 1985 this intent was formalized by the U.N. General Assembly when it adopted the Basic Principles on the Independence of the Judiciary, thereby stipulating that

Whereas the ICESCR and on ICCPR both guarantee the exercise of those rights. . . . Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation, Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality, Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles, Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property.

Former U.N. General Secretary Boutros Boutros-Ghali stated the importance of nationally based judiciaries as the essential and inevitable part of the “historical synthesis resulting from a long historical process” when he maintained:

[T]o move from identifying inequality to rebelling against injustice is only possible in the context of a universal affirmation of the idea of human rights. Ultimately, it is this idea which allows us to move from ethical to legal considerations, and to impose value judgments and judicial constraints on human activity.[53]

National sovereignty will be transformed when the basic norms of national legal orders are substantively qualified by international legal norms. The complex relation between national and international systems is evolving toward hegemony of the latter over the former. Just as Fourteenth Amendment selective incorporation doctrine substantively altered state constitutional orders, the incorporation of international legal norms will similarly impact the U.S. constitutional order.[54] Ian Brownlie explains developments regarding the links between international and domestic laws. Brownlie acknowledges that Article 2, paragraph 7, of the U.N. Charter restates the “classical rule” of international law:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter . . .

Summarizing commentaries on the relevance of Article 2’s domestic jurisdiction reservation, Brownlie explains how the Article 2 reservation will be negated on three fronts: First, the reservation applies to specific organs of the U.N., and not with the rule of general international law already operative in nation-states; second, the reservation is inoperative when a treaty is involved; and third, human rights obligations, which in 1947 were hortatory, have subsequently been construed by the U.N. “as presenting definite and active legal obligations” on nation-states.[55]

Articles 55 and 56 of the Charter, the 1976 ICESCR, the ICCPR, and The Optional Protocol are the “teeth” that Brownlie suspects will make the substance of Article 2, paragraph 7, “disappear.”[56] These U.N. agreements supplement the “moral force” of the 1948 declaration with “legal obligations.”[57] Nevertheless, the 1948 Declaration is the central document with subsequent documents functioning as clarifications and implementation guidelines.[58]

Missouri Ducks

When ideology and opportunity converge, the development of public policy is affected accordingly—the niceties of constitutional barriers not necessarily withstanding. Opportunities will be utilized in the implementation of ideologically-derived policy objectives. The American constitutional order is premised upon this postulate, as is the traditional American rule of law.[59] Significantly, nontraditional articulation of human rights has very few checks and very little balance and the rule of law is readily malleable into cover for government by an unaccountable elite with a U.S. president as its CEO.[60] Consequently, when the judicial and the chief executive elite share the same ideological objectives, the end result will very well be the unconstitutional exercise of despotic presidential powers.

From a practical viewpoint, it appears to be quite a stretch to link the idealistic language of U.N. documents to U.S. public policy; but there are theoretical and historical justifications for doing so. Just as nineteenth-century case law precedent established national supremacy over the states—“the laws must be faithfully executed”—twentieth-century precedent has established a form of supranational supremacy over the states that has resulted in making the nation itself vulnerable to presidential powers grounded in “external sovereignty.”[61]

The first significant precedent case law that stripped the states of their prerogatives vis-à-vis external sovereignty was the 1920 case, Missouri v. Holland. At issue was the constitutionality of the 1916 treaty between the U.S. and Great Britain and the Migratory Bird Treaty Act of 1918, the purpose of which was to execute the terms of the treaty. The state of Missouri maintained that the treaty and the statute were repugnant to the Tenth Amendment. Counsel for Missouri argued that

The treaty-making power conferred on the president and senate does not include the right to regulate and control the property and property rights of an individual state, held in its quasi-sovereign capacity. . . . The lack of legislative power in Congress to divest a state of its property right and control over the wild game within its borders cannot be supplied by making a treaty with Great Britain. . . . The treaty-making power of the national government is limited by other provisions of the Constitution, including the 10th Amendment. It cannot, therefore, devest [sic] a state of its police power, or take away its ownership or control of its wild game.[62]

The essential legal issue was, can a treaty validate an otherwise unconstitutional congressional statute? For the court, Justice Holmes provided an emphatic yes. He maintained that in those instances when the national interests are at stake, and in those matters that require national action, the power to secure those interests and execute the necessary action must reside somewhere. Because the states are incompetent to individually secure national interests, the power by necessity is conferred upon the national government, not necessarily by the Constitution but by the Court. He wrote:

With regard to that [the 1916 treaty], we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they have created an organism; it has taken a century and has cost their successors much sweat and blood to prove they created a nation. The case before us must be considered in light of our whole experience, and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.[63]

These few lines represent a jurisprudence that will prove to have a profound impact on the American constitutional order and presidential power within that order. The tenets of that jurisprudence are: (1) statutory and fundamental laws are organic in nature; (2) the Constitution and laws are to be circumstantially interpreted; (3) the Tenth Amendment is subject to a juridical sliding scale, whereby the reserved powers of the states are circumstantially contracted as those of “superior” governments are expanded; (4) the U.S. Supreme Court is empowered to keep the organism growing and healthy; and (5) presidential powers are circumstantially open-ended. The expansion of presidential powers is part and parcel of that growth, due to the president’s indispensable role in policy formulation and implementation. And who would have been responsible for the enforcement of the 1918 act if Missouri had resisted? President Wilson, of course, with the Supreme Court’s blessing.

The significance of the U.S. president as the enforcer of U.N. mandates is a natural outgrowth of his power as the enforcer of chief for national mandates and long-standing international norms, nation-states in international law require four conditions: (1) there must be a people in the aggregate who live together in a community; (2) there must be a country with a recognized territory; (3) there must be a recognizable government exercising authority; and (4) there must be a sovereign “independent of any other earthly authority.”[64] The juridical logic of Missouri v. Holland complements these four conditions, whereas the original constitutional order with its limitations on the president and deference to the states does not. For example, under the original American constitutional order there is not, in the strict sense, “a people in the aggregate who live together in a community.” There are, however, distinct peoples living in state-based communities. Collectively the states form a national community, of sorts. But each is governed by recognizable governments exercising reserved and delegated powers within recognized jurisdictions. Neither the national nor the state sovereigns are completely independent of each other. Even the arch-nationalist Chief Justice Salmon Chase remarked, “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states.”[65] Indestructible states are not reducible to the status of administrative agents of the national government, but exercise meaningful sovereignty over designated areas of public policy.[66] According to Missouri v. Holland, however, the demarcation between reserved state powers and delegated national powers is circumstantially arbitrary, or more precisely, ideological. Thus, the sovereignty of the states over their purely internal affairs is not contingent upon the rule of law, but upon the rule of national political expediency; especially when “a national interest of very nearly the first magnitude is involved,” as presumably was the case in protecting Canadian migratory birds from Missouri duck hunters.

Circumvent the Congress

Significantly, the most state-based branch of the national government, the Congress, can be bypassed by the president and Supreme Court. The constitutional implications of Missouri v. Holland were shortly thereafter expanded in U.S. v. Curtiss-Wright (1936). At issue was the constitutionality of the law-making powers to the U.S. president and the separation of powers. Can the president constitutionally make laws? If the law-making function falls exclusively within the category of internal affairs, it would be unconstitutional in the absence of congressional delegation of such powers to the president.[67] However, if it falls within the category of external affairs, the delegation of presidential lawmaking powers is not open to successful constitutional challenge.[68] Grounding his majority opinion not in the “provisions of the Constitution, but in the law of nations,” Justice Sutherland ruled that “the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution.”[69] The powers of external sovereignty passed from the Crown, that is King George III, to the government of the United States, and then onto the office of the president of the United States.

Stemming from a twisted interpretation of American history, particularly the Declaration of Independence, Sutherland maintained that the states never were independent or free and that the American people existed only in the national aggregate. Sutherland maintained that

Rulers come and go; governments end and forms of governments change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect to the colonies ceased, it immediately passed to the Union. . . . The Union existed before the Constitution . . . [it] was the sole possessor of external sovereignty. . . . Otherwise, the United States is not completely sovereign.[70]

But to make the U.S. completely sovereign, Justice Sutherland had to rewrite a good portion of American political history along the Hobbesean model of government. Once again, ideology masquerading as explication of the U.S. Constitution.

But this was precisely the point! The U.S. was not designed to be “completely” sovereign; nor was it designed to confer King George-like powers on the president of the U.S. Nevertheless, Missouri v. Holland and U.S. v. Curtiss-Wright constitutionally sanction presidential tyranny, if the 1776 American revolutionaries are to be believed and King George III was in possession of tyrannical powers.[71]

And one year after the Curtiss-Wright decision, the Court took another step and freed the treaty-making powers of the presidency from Senate ratification. In U.S. v. Belmont the Court elevated international executive agreements to the same Article VI “supreme law of the land” legal standing as treaties.[72] Depending upon the circumstances, a president may make and enforce laws, the reserved powers of the states notwithstanding. When considering the mounting international commitments and the attending interest group politics attached thereto, the opportunities for domestic presidential tyranny are ripe.[73]

Conclusion

Quite frankly, the U.S. Supreme Court has failed and is failing in its constitutional responsibility to check the expansion of presidential power to despotic limits. This failure is to be expected. To be effective, the power to check the expansion must be lodged with those who have the most to lose: the states. Nevertheless, because the expansion has been and continues to be incremental and at times barely discernible, the judicial federalism bulwark against the growth of despotic national powers has been effectively dismantled, and the American people effectively socialized to the legitimacy and merits of that dismantlement.

As American jurisprudence is the mother’s milk of legitimizing the ever-expanding presidential power, the American presidency is increasingly acquiring greater prerogative powers. It is a certainty that American presidents, with their international counterparts, will be increasingly responsible for the so-called global interests of the human family. This does not bode well for genuine community self-determination within the context of the rule of law, either for states officially within the United States or its imperial colonies. As Justice Story conceded, it is the necessity of “uniformity” that justifies centralization.[74] Uniformity toward what objective is the open-ended question. For Justice Story, it was the American empire; for contemporaries, both here and abroad, it is centralization toward the human family—that is, the global empire legitimated and held together by judicial decrees. There may soon be no room for individual freedom and community self-determination within the context of the “American” rule of law in the house that Justice Story and other Supreme Court nationalists helped to construct. Ironically, is it too far-fetched that the American nation may face the fate of the Confederate South at the hands of some modern-day Lincoln progeny: compliance with international judicial norms at the point of a bayonet? To dismiss, mock, or ignore the question is to answer it.

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[1] Alexander Hamilton, James Madison, and John Jay, The Federalist Papers No. 1, Clinton Rossiter, ed. (New York: Mentor, 1961), p. 35.

[2] My working definition of constitutional liberalism is the distribution of political power in such a manner that it is both fragmented and competitively self-checking. It is essentially the original Madisonian model in which “ambition is made to counteract ambition” and the interests of the officeholders (for example, national and state legislators, executives, judges) are integrally connected to their respective offices and to identifiable constituencies. See The Federalist Papers Nos. 10 and 51; my working definition of despotism is the illegitimate utilization of governmental powers against the fundamental rights of the governed within their respective states, especially the fundamental right to be self-governing.

[3] Hamilton, Madison, and Jay, The Federalist Papers No. 51, p. 323.

[4] The original federal arrangement divided political power between the national and state governments; the states delegated to the national government certain powers, while reserving the remaining powers. The distinction between reserved and delegated powers, as articulated by the U.S. Supreme Court, has been—and continues to be—the crux of case law controversy and, as will be discussed, the fundamental failure of American republicanism.

[5] John C. Calhoun has written the theoretical tour de force on this topic; see his “The Disquisition On Government and Discourse On The Constitution of the United States” in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis, Ind.: Liberty Fund Press, 1992), pp. 3–78.

[6] If the rule of law is contingent upon U.S. Supreme Court judicial review, and the court is accountable—albeit remotely at times but in the end accountable—to national politics, judicial review is a political process and case law its public policy output. (See John C. Calhoun, “Fort Hill Address, 1831,” and “Discourse On The Constitution Of The United States” in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed., pp. 79–284, 367–400.)

[7] See Bertrand de Jouvenel, On Power: The Natural History of Its Growth (Liberty Fund Press, 1993), pp. 120–21.

[8] Hamilton, Madison, and Jay, The Federalist Papers No. 9, p. 76.

[9] The last paragraph of the Declaration maintains the “free and independent states . . . and that as free and independent states, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which independent states may of right do.” Article II of the Articles of Confederation stipulates that “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

[10]Marbury v. Madison, 1 Cranch (5 US) 137 (1803), McCulloch v. Maryland, 4 Wheat (17 US) 316 (1819), and Gibbons v. Ogden, 9 Wheat (22 US) 1 (1824), and Cooley v. The Board of Wardens, 53 U.S. (12 How.) 299 (1851).

[11] Charles Alan Wright, Law of Federal Courts (St. Paul, Minn.: West Publishing, 1983), pp. 1–2.

[12]Fairfax’s Devisee v. Hunter’s Lessee, 11 (US) (7 Cranch) 1816, 603–32.

[13] Henry Steele Commager, Documents of American History (New York: F.S. Crofts, 1943), pp. 118–19.

[14]Fairfax v. Hunter, 608–09.

[15] “An act concerning escheats and forfeitures from British subjects,” May 1779, chap. 14; “An act to amend the foregoing,” Oct. 1779, chap. 18; and “An act concerning escheators,” May 1779, chap. 45; see Fairfax v. Hunter, 609–10.

[16]Martin v. Hunter, 314.

[17] Ibid., 303.

[18] Hamilton, Madison, and Jay, The Federalist Papers No. 15, p. 110.

[19] Hamilton, Madison, and Jay, The Federalist Papers No. 39, pp. 244–45 (emphasis added).

[20] Hamilton, Madison, and Jay, The Federalist Papers No. 80, p. 475.

[21] Hamilton, Madison, and Jay, The Federalist Papers No. 15, p. 110.

[22] Ibid., p. 108.

[23] The Virginia Court of Appeals concluded that

the appellate power of the Supreme court . . . does not extend to this court . . . that so much of the 25th section [of the 1789 Judiciary Act] is not in pursuance of the Constitution . . . that the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon were, coram non judice, in relation to this court, and that obedience to its mandate be declined by the court. (Martin v. Hunter, 322)

[24] Story’s position is both ahistorical and politically motivated; however, to address this point is beyond the scope of our present purposes. See Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence: University Press of Kansas, 2000), pp. 19–22.

[25]Martin v. Hunter, 326.

[26] Ibid., 326.

[27]Martin v. Hunter, 346, 334.

[28] Ibid., 338.

[29] Ibid., 363.

[30] Ibid., 342.

[31] The Federalist Papers No. 10.

[32] Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis, Ind.: Liberty Press, 1991), p. 48.

[33] Ibid., p. 49.

[34] Ibid., pp. 50–51.

[35] Ibid., pp. 52–53.

[36] Ibid., p. 54.

[37]Abelman v. Booth, 62 U.S. (21 How.) 506 (1859).

[38]The International Covenant on Human Rights and Optional Protocol (New York: U.N. Office of Public Information, 1976), p. 1.

[39] See Chisholm v. Georgia, 1 L.Ed. 440 (1793).

[40]See McCulloch v. Maryland, 4 L.Ed. 579 (1819).

[41] See The International Covenants on Human Rights and Optional Protocol, 1976), p. 1. The imprint declares that “Having proclaimed this Universal Declaration [1948], the U.N. turned to an even more difficult task: transforming the principles into treaty provisions which established the legal obligations on the part of each ratifying state” (ibid.). The U.S. Senate ratified the ICCPR and Optional Protocol in 1992. To date, the ICESCR has not been ratified by the Senate; however, pending ratification does not preclude its terms from influencing American jurisprudence as components of the customary law of nations.

[42] See Imre Szabo, “The Historical Foundations of Human Rights and Subsequent Developments,” in The International Dimensions of Human Rights, Karol Vasak, ed., vol. 1 (Westport, Conn.: Greenwood Press, 1982), p. 23.

[43] International Covenant on Civil and Political Rights (ICCPR), pp. 13, 14 (emphasis added).

[44] Ibid., p. 22 (emphasis added).

[45] The term national in this context is broader than the term citizen; see Brassert v. Biddle, D.C. Conn., 59 F. Supp. 457, 462 (Black’s Law Dictionary, 6th ed. [St. Paul, Minn.: West Publishing, 1990]).

[46] ICCPR, Arts. 28, 38, and 41.

[47] Optional Protocol to the ICCPR, Art. 1.

[48] See Part IV of the ICCPR.

[49] A.H. Robertson, “The Implementation System: International Measures,” in The International Bill of Rights: The Covenant on Civil and Political Rights, Louis Henkin, ed. (New York: Columbia University Press, 1981), pp. 357 and 365.

[50] For example, the ICESCR delineates the fundamental rights that members must respect, including: the right of all people to self-determination (Art. 1); the equal right of men and women to the enjoyment of all economic, social, and cultural rights (Art. 2); the right to work and the right to freely choose or accept the work one does (Art. 6); the right to favorable working conditions, fair wages, leisure, and paid holidays (Art. 7); the right of everyone to form a trade union, the right of trade unions to form national federations, the right of national federations to form international trade-union organizations, the right to strike (Art. 8); the right of everyone to social security and social insurance (Art. 9); the right of everyone to an adequate standard of living and the fundamental right to be free from hunger (Art. 11); the right of everyone to the “enjoyment of the highest attainable standard of physical and mental health” (Art. 12); and “the right of everyone to education” (Art. 13).

[51] ICCPR, Art. 2.

[52] See Oscar Schachter, “The Obligation to Implement the Covenant in Domestic Law,” in The International Bill of Rights, p. 325.

[53] Boutros Boutros-Ghali, “Address” at World Conference on Human Rights, Vienna, 14 June 1993, The United Nations and Human Rights, 1945–1995 (New York: U.N. Office of Public Information, 1995), pp. 442, 443 (emphasis added).

[54] International law terminology varies, using incorporation, adoption, and transformation when describing what is essentially the same effect; see Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Oxford University Press, 1998), pp. 42, 55–56.

[55] Brownlie, pp. 557–58. The parallels between Art. 2, par. 7, and the Tenth Amendment are obvious.

[56] Brownlie, pp. 558, 573–74.

[57] See The International Covenants on Human Rights and Optional Protocol (New York: The U.N. Office of Public Information, 1976), p. 1. The imprint declares that “Having proclaimed this Universal Declaration [1948], the U.N. turned to an even more difficult task: transforming the principles into treaty provisions which established the legal obligations on the part of each ratifying State” (ibid., p. 1). The U.S. Senate ratified the ICCPR and Optional Protocol in 1992. To date the ICESCR has not been ratified by the Senate; however, that does not preclude its terms from influencing American jurisprudence as components of the customary law of nations.

[58] See Szabo, “The Historical Foundations of Human Rights and Subsequent Developments,” p. 23.

[59] See The Federalist Papers No. 10.

If the impulse and opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

[60] What is meant by the traditional rule of law cannot be easily explained, but only appreciated; in other words, it is less abstraction and more procedure. For example, the rule of law does not necessarily require that a U.S. president serve a four-year term instead of a five-year term. Article V of the Constitution allows for the change from four- to five-year terms. Rather the rule of law requires that the length of the term be determined by constitutional procedures, such as the amendment process and not congressional statute of judicial decree.

[61] This term was used by Justice Sutherland, to be discussed below.

[62]Missouri v. Holland, 64 L.Ed. 641 (1920), 645.

[63] Ibid., 648.

[64] These four conditions are a slight variation of those found in L. Oppenheim’s International Law: A Treatise, I.H. Lauterpacht, ed., vol. 1 (New York: David McKay, 1962), pp. 118–19.

[65]Texas v. White, 19 L.Ed. 227 (1869).

[66] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” (Tenth Amendment to the Constitution of the United States).

[67] For example, in the Youngstown case, President Truman’s seizure of the steel mills was declared to be unconstitutional due to Congress’s specific refusal in the Taft-Hartley Act to yield such power to the president; see Justice Black’s court opinion in Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 [1952]).

[68]U.S. v. Curtiss-Wright, 299 U.S. (1936), 315–16.

[69] Ibid., 303.

[70] Ibid., 302–03.

[71] See the Declaration of Independence and The Federalist Papers No. 1.

[72]U.S. v. Belmont, 301 U.S. 324 (1937). The legislative response to this decision was headed by U.S. Senator John Bricker, a conservative Republican from Ohio. Senator Bricker unsuccessfully proposed a series of constitutional amendments, the last one in 1956. It stipulated:

Section 1. A provision of a treaty or other international agreement not made in pursuance of this Constitution shall have no force or effect. This section shall not apply to treaties made prior to the effective date of this Constitution. Section 2. A treaty or other international agreement shall have legislative effect within the United States as a law thereof only through legislation, except to the extent that the Senate shall provide affirmatively, in its resolution advising and consenting to a treaty, that the treaty shall have legislative effect. Section 3. An international agreement other than a treaty shall have legislative effect within the United States as a law thereof only through legislation valid in the absence of such an international agreement. Section 4. On the question of advising and consenting to a treaty, the vote shall be determined by yeas and nays, and the names of the Senators voting for and against shall be entered on the Journal of the Senate. (Duane Tannanbaum, The Bricker Amendment Controversy: A Test Of Eisenhower’s Political Leadership [Ithaca, N.Y.: Cornell University Press, 1988], p. 227)

[73] Could the case be made that presidential tyranny against non-Americans has been actualized for some time? Consider President Clinton’s military adventures in Iraq, Sudan, Pakistan, and Yugoslavia. By the stroke of his presidential pen he has sent cruise missiles and sorties into civilian and military targets; he can issue a naval blockade, trade sanctions, or deny “most favored nations” status. An interesting question, but beyond the scope here.

[74]Martin v. Hunter, 346.