I won’t dwell on Eric Posner’s brusque dismissal of our pesky First Amendment rights (boy is that family on a roll of late- Richard has the 2nd Amendment, and Eric has the 1st! Are there any other Posners left to take on quartering of troops?). Rather, Posner makes one point towards the end of his piece, almost in passing, that I think warrants more attention.
And so combining the liberal view that government should not interfere with political discourse, and the conservative view that government should not interfere with commerce, we end up with the bizarre principle that U.S. foreign policy interests cannot justify any restrictions on speech whatsoever
Here, Posner was referring to the concept that if the U.S. has a foreign policy interest in not offending people, it should be able to restrict speech–such as by censoring a YouTube video that is offensive. Absent any kind of imminent threat under Brandenburg, I think the answer to that questions is clearly no (Posner dismisses those precedents as unintended consequences of the Warren Court).
But a deeper question, is what happens if the United States signs some sort of treaty with another nation, and one of the terms of the treaty says that the countries have a reciprocal responsibility to ensure that speech offensive to religion will not be tolerated. Acting pursuant to that treat, the President orders the censoring of a video.
There are a few related issues. Can Congress pass a facially unconstitutional treaty? Is there even judicial review of such a treaty? If a treaty obtains advice and consent from the Senate, it would seem that challenging it would be a political question.
Now, assume there is an as-applied challenge–say the person whose video is censored as a result of the treaty sues for a violation of his First Amendment rights. If the action was undertaken outside the context of the Treaty–so long as the speech was not obscene or incited imminent violence–the censorship would be unconstitutional.
But, could the government argue that by entering the treaty, Congress’s powers to violated the Constitution were put into place. Preposterous you say? Well, what about Missouri v. Holland (authored by who else but Justice Holmes)? An issue that remains lingering in that case (and is the subject of a cert petition on the remand of United States v. Bond) is whether Congress, by entering a treaty, can expand its powers to abrogate states rights protected by the 10th Amendment.
Nick Rosenkranz, along with Ilya Shapiro and Trevor Burrus, authored an amicus brief on behalf of the Cato Institute and Center for Constitutional Jurisprudence, in favor of granting cert in Bond discussing just this point. The question presented is “Can the President increase Congress’s legislativepower by entering into a treaty?”
The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause,and the Tenth Amendment. It is inconsistent withthe fundamental structural principle that “[t]hepowers of the legislature are defined, and limited.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176(1803). It implies, insidiously, that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone— or a foreign government alone—can decrease Con-gress’s power and render statutes unconstitutional.Finally, it creates a doubly perverse incentive: an incentive to enter into entangling alliances simply to increase legislative power
Now if a Treaty enables Congress to infringe on state rights by expanding enumerated powers, can a treaty expand (or create) Congress’s power to infringe on individual rights, such as those under the First Amendment of the Constitution?
But how can this be done, given the First Amendment? Well, in Treaties, International Law, and Constitutional Rights, published in 2003 in theStanford Law Review (one of the top three law journals in the country, Prof. Spiro suggested a mechanism: American decisions to sign on to international treaties may cut back on the scope of the protections of the Bill of Rights, for instance the First Amendment.
True, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): “[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution” (speaking of the Bill of Rights). But, Prof. Spiro argues, this supremacy of the Bill of Rights really isn’t that strong: The President and the Senate can, in the long run, “insinuat[e] international law” that would create “a partial displacement of constitutional hegemony” (for instance, with “an international norm against hate speech … supply[ing] a basis for prohibiting it, the First Amendment notwithstanding”). “In the short term,” international norms would and should be “relevan[t] … in domestic constitutional interpretation.” But “In the long run, it may point to the Constitution’s more complete subordination.”
Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — “If some constitutional norms are more appropriately set at the international level” (and he believes they are), “that should justify a treaty power that, in some cases, overcomes even the Bill of Rights” — and predicting that treaties will over time do so. Courts, he acknowledges, would try to “maintain the formal hegemony of the domestic constitution,” but “this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run.” “Constitutional rights ‘adjusted’ by treaty norms are changed by them. The Constitution is read to conform with the treaty.”
This is extremely troubling. I meant to blog about this a few weeks ago, but Posner’s poo-pooing of the First Amendment incited me to do so (several puns intended).