The Difficulty of Obtaining U.S. Ratification of Multilateral Treaties

On December 4th the U.S. Senate once again demonstrated the difficulty of obtaining U.S. ratification of multilateral treaties.

Voting in U.S. Senate
Voting in U.S. Senate

The Senate that day voted 61 to 38 to give its Advice and Consent to U.S. ratification of the United Nations Convention on the Rights of Persons with Disabilities.  This, however, fell six votes short of the two-thirds vote required by Article II, § 2(2) of the U.S. Constitution. This failure happened even though the treaty essentially adopted the terms of the Americans with Disabilities Act and was supported by all 51 Democratic, 2 Independent and 8 Republican Senators.

Former Senator Robert Dole in Senate
Former Senator Robert Dole in Senate

The 38 “No” votes were all cast by Republican Senators despite the support of the treaty by Robert Dole, the former Republican Majority and Minority Leader of the Senate and the Party’s presidential candidate in 1996,who was on the Senate floor in his wheelchair to garner support for the treaty.

Such Senate approval is only one critical step in the complicated U.S. procedures for such ratification. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.[1]

The difficulty of completing all of these procedures, including the Senate’s granting its Advice and Consent, is also seen by the 17 to 19 years and five presidencies it took before the U.S. had ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and before the treaty went into force for the U.S.

Yet another example of the mountain that must be climbed for ratification is the inability to date to obtain a two-thirds Senate vote for Advice and Consent to ratification of the United Nations Convention on the Law of the Sea despite endorsement by the Pentagon, labor and business and three presidents (Bill Clinton, George W. Bush and Barack Obama).

Reacting to the Senate’s rejection of the disabilities treaty, the New York Times’ “Room for Debate” feature posed the question–   “”Have Treaties Gone Out of Style?” Four people participated in this debate: David Kopel, Julian Ku, Catherine Powell and Jenny Martinez.

David Kopel [2] argues that the Senate was right to reject this treaty.  In his opinion, it “was rife with flaws — requiring government at every level in the U.S. to spend ‘the maximum of its available resources’ on disabled services, granting Congress new powers to regulate private homes and personal behavior, and creating a new legal right to abortion, independent of Roe v. Wade.” Moreover, he said, “Efforts by senators to add reservations to address some of these issues were rejected by treaty proponents.” Finally he asserted that “even if the textual language in the treaty were perfect, the fact that the future meaning of the disabilities treaty will be decided by U.N. bureaucrats” supported U.S. rejection.

Julian Ku[3] although generally skeptical of multilateral treaties like the one at issue this week, concluded that the stated fears of this treaty were unfounded. He said, the Obama Administration had “conditioned Senate approval on a ‘non-self-executing’ declaration that prevents any litigation under the convention in U.S courts [and] . . .  added a federalism reservation that would prevent the convention from overriding inconsistent state law.” In addition, the Administration “added a ‘private conduct’ reservation that would prevent it from regulating nonstate [sic] actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.”[4]

Supporting ratification of the treaty, Catherine Powell [5] said that the treaty “extends abroad the same basic rights Americans already enjoy at home,” [would strengthen] . . . disabilities rights for others,. . . [and] would have helped Americans who travel, live, work and study abroad, including our wounded warriors. It would also benefit American businesses that sell power wheelchairs and other adaptive technologies that assist people with disabilities.” According to Powell, the two asserted objections to the treaty were invalid.

  • “First, the claim that the treaty would lead to interference with home schooling is nonsensical. If anything it would expand educational opportunities. It defends autonomy, independence and choice for people with disabilities (including parents of children with disabilities), by prohibiting discrimination and interference in decisions.
  • Second, the claim that this treaty would threaten U.S. sovereignty is specious. . . . Ratifying the convention requires no change in our law and no new rights, and it cannot be used directly to bring lawsuits. No international organization, including the nonbinding advisory committee established by the treaty, can force us to do anything.”

Jenny Martinez [6] also rejected the sovereignty objection. This conception of sovereignty, she said,  is isolationistic “that focuses on minimizing ties to the community of nations, rather than seeking to lead that community. But autonomy is just one meaning of sovereignty, and an elusive one at that in a globalized world economy. Sovereignty is also the power to make law, and sovereignty wisely exercised is the power to make good law.” Indeed, in “wiser moments, leaders of both parties have recognized that participation in international treaties that serve our national interests and reflect our national ideals represents an exercise of sovereign power, not a diminution of it.”

The Senate indeed has an important responsibility under the Constitution to ensure that U.S. entry into any proposed treaty is in accordance with the national and international interest of the country. Because adopted treaties, under the Constitution, are part of the supreme law of the land, The Constitution requires the Senate’s vote on such matters to be at least two-thirds. I regret that we are in a period where one of our major political parties has lost sight of the previous bipartisan consensus that our participation in multilateral treaties usually advances our national interest. Although the U.S. in many respects is the most powerful country in the world, it still needs allies and means to project its values and interests to others. Such treaties are one important way of doing just that.

[1] The same procedures are necessary for approval of bilateral treaties, but such treaties are less controversial.

[2] Kopel is the research director of the Independence Institute and an adjunct professor of law at the University of Denver and the co-author of “Firearms Law and the Second Amendment.”

[3] Ku is a professor of law and the faculty director of international programs at the Maurice A. Deane School of Law at Hofstra University and the co-author (with John Yoo) of “Taming Globalization, International Law, the U.S. Constitution, and the New World Order.”

[4] Ku argues that the Republican Senators should have saved their efforts for opposing Advice and Consent to ratification of  the Law of the Sea treaty that will come before the Senate in the future.

[5] Powell is a visiting associate professor of law at Georgetown University Law Center (on leave from Fordham University School of Law) and former staffer on the Secretary of State’s policy planning staff and the national security staff in the White House.

[6] Martinez is the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law School and the author of “The Slave Trade and the Origins of International Human Rights Law.”

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . .  system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law Schoolthe U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’  Power Over  Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

  • “The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.