An Intersubjective Treaty Power

This Article explores whether the Constitution limits the making and implementation of U.S. treaties to subjects of “international” intercourse or concern. It does so in two steps. First, I undertake the existential inquiry, asking if the Constitution requires a nexus between treaties and “international” subject matters. I argue that Justices Alito, Scalia, and Thomas are correct—and the Restatement (Third) is wrong—on the question of whether the Constitution imposes an affirmative subject matter limitation on the treaty power.

Various modalities of constitutional interpretation—original meaning, historical practice, doctrine, structure, and prudence—offer evidence in support of some version of an “international concern” test. And this claim holds whether one endorses or rejects the claim that federalism requires reserved powers’ limitations on the treaty power or treaty-implementing legislation.