The United Nations has added new complications to the well-worn subject of treaties and the Constitution. The issues have arisen principally in the field of human rights and, inevitably, constitutional discussions have reflected the political as well as the legal complexities. One consequence has been an apparent shift in legal positions: bar association leaders, long devoted to strict construction, have been inclined recently to stress the broad and expansive character of the treaty power and the supremacy clause ; in contrast, U.S. Government officials normally expected to support federal power have increasingly emphasized constitutional limitations. In political terms, this turnabout is not as paradoxical as it might appear: the one group draws attention to the far-reaching effects of treaties on internal law in order to discourage adherence of the United States; the other group, in response, seeks to limit somewhat the impact of the treaties on domestic law in order to gain wider support for U.S. participation. There are, in turn, repercussions on the international level. Within the United Nations, delegates of other countries are not always prepared to accept U.S. constitutional difficulties as a sufficient reason for restrictive treaty clauses. There is an understandable reluctance to make exceptions which might result in inequality of obligation and questions have been raised regarding both the legal interpretation and the political motives of the U.S. delegates raising constitutional points.
The Charter and the Constitution: The Human Rights Provisions in American Law,
4 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol4/iss3/11