Treaties in U.S. Courts: Judge Bork's Anti-Originalist Revolution
Two cases currently pending before the Supreme Court present an opportunity for the Court to resolve a conflict between two competing models of treaty adjudication: the Marshall model and the Bork model. The Marshall model applies a presumption in favor of judicial remedies for violations of individual treaty rights. The Bork model applies a presumption against private enforcement of treaties in U.S. courts.
During the first fifty years of U.S. constitutional history, the Supreme Court consistently applied the Marshallian presumption in favor of judicial remedies. As a judge on the D.C. Circuit in 1984, Robert Bork created the Borkian presumption against judicial enforcement of treaties when he published a concurring opinion in Tel-Oren v. Libyan Arab Republic. Since 1984, many state and federal courts have applied the Bork model to deny judicial remedies for individuals whose treaty rights were violated. The Supreme Court has never endorsed the Bork model.
The Bork model is contrary to the Framers’ original understanding of the judicial role in treaty enforcement. Adoption of the Borkian presumption by lower courts was a radical departure from two centuries of consistent Supreme Court jurisprudence. When courts apply the Bork model, they countenance treaty violations by state governments, they abdicate their constitutional responsibility to restrain illegal executive action, and they damage the United States’ international reputation.
Constitutional Law | International Law | Legal History | Legal Remedies
Date of this Version
Kay Graeff and David Sloss, "Treaties in U.S. Courts: Judge Bork's Anti-Originalist Revolution" (March 2, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1031.