Federalism and International Human Rights in the New Constitutional Order

Abstract

This article, forthcoming in the Wayne Law Review, examines possible federalism limits on national legislative power to protect internationally recognized human rights in light of the Supreme Court's developing federalism jurisprudence. It argues that developing doctrines limited national power in the international arena will be quite difficult. Neither subject-matter limitations on Congress's power nor the anti-commandeering principle seem readily available, in part for structural reasons arising from the fact that international agreements are negotiated with foreign partners who may be unconcerned with domestic U.S. law, and in part because the historical case for either type of limitation is weaker than the similar case for limitations in the purely domestic context. In addition, the article argues that developing doctrinal limitations on the Treaty Power may guard against possibilities that are increasingly remote in the post-New Deal/Great Society constitutional order, where legislative initiatives are likely to be much less bold than those suggested by aggressive proponents of the use of national power to secure international human rights domestically.