Monday, June 02, 2014

Quick notes on Bond

Mark Tushnet

Howard Wasserman already has posted something on some aspects of the style of Chef Justice Roberts's opinion in Bond, asking whether "Robert's penchant for these flourishes makes for good writing or whether it is incredibly distracting." In addition to the phrases Wasserman mentions, there's also the two initial paragraphs of the opinion, describing a painting by John Singer Sargent depicting the "horrors of chemical warfare." One might -- I think I would -- describe those paragraphs as a deliberate striving for "literariness," and for that very reason ineffective in achieving it.

And then there's the penultimate substantive paragraph, which is pretty clearly intended as a rhetorical wrapping up: "In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or treat a local assault with a chemical irritant as the deployment of a chemical weapon." The problem here is not that the rhetorical flourish might be distracting, but rather that it might actually be importantly substantive: Does the summary statement imply that the standard for determining whether a statute is one implementing a treaty is whether the statute is required for the treaty's effective implementation (at least where the statute operates in areas historically left to state rather than federal regulation)? Part II of the Chief Justice's opinion opens with a reference to McCulloch, and this paragraph might be read as taking Maryland's side on the meaning of "necessary."

And then there's Justice Thomas's opinion, which quotes Madison: "The Federal Government's powers, Madison wrote, 'will be exercised principally on external objects....'" That "principally" is what I was taught to call a negative pregnant, a formulation that implies that the power can be exercised on some non-external objects. And throughout the opinion Justice Thomas states the substantive scope of the Treaty Power as limited to "intercourse with other nations," without explaining how that standard is different from one allowing treaties on any matter subject to international negotiation. (Here Jack Balkin's article on the 1789 meaning of "intercourse" comes naturally to mind.) If you track the parenthetical explications of the term, it turns out that "intercourse with other nations" meant, to Hamilton,"whatever is a proper subject of a compact between Nation & Nation," and to Story "any other purposes, which the policy or interests of independent sovereigns may dictate in their intercourse with each other."

Finally, and this isn't Justice Thomas's problem but James Madison's, Justice Thomas quotes Madison to the effect that treaty cannot "dismember the empire." Really? Suppose Vladimir Putin lets the United States know that he's going to bomb the bejeezus out of the "red" states of the United States unless we negotiate a treaty returning Alaska to Russia. Work out the scenario as you wish, but I doubt that it's a good constitutional design to require the U.S. government to take the negotiating position, "We're fine with giving up Alaska but unfortunately we can't do it, so bomb away."

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