Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding

Abstract

As the globalization of society and the economy accelerates, treaties will come to assume a significant role in the regulation of domestic affairs. This paper examines the question whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation. It examines the relationship between the treaty power and the legislative power during the colonial, revolutionary, framing, and early national periods to reconstruct the framers' understandings. It concludes that the framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution's creation of a national legislature that could independently execute treaty obligations. The framers also anticipated that Congress's control over treaty implementation through legislation would constitute an important check on the executive branch's power in foreign affairs.