In the longstanding debate over the proper place of the Treaty Power in the Constitution's federal structure, on the one hand there are Federalists and on the other hand there are federalists. During the ratification of the Constitution, many Federalists believed the national government needed an expansive Treaty Power to preserve the nascent union. Today, many federalists see such a Treaty Power as a potential threat to the sovereignty of the states. Between 1998 and 2000, the Michigan Law Review published a series of articles by Curtis Bradley and David Golove on competing conceptions of how the Treaty Power fits in the Constitution's federal structure. Bradley argued that federalism delimits the capacity of the national government to create binding national law through the forging of treaties. That is, the national government may not invade the sovereign province of the states by using the Treaty Power to circumvent the restrictions placed on the national government by federalism. In contrast, Golove argued that the national government may use the Treaty Power to legislate in areas generally reserved to the states so long as the Constitution does not explicitly prevent it. Unfortunately, neither author's argument addressed the history of the most important constitutional event bearing on the issue -- the ratification of the Eleventh Amendment.
Michael T. Schwaiger,
A Visible Radiation: Interpreting the History of the Eleventh Amendment as Foreign Policy to Circumscribe the Treaty Power,
2 Duke Journal of Constitutional Law & Public Policy
Available at: http://scholarship.law.duke.edu/djclpp/vol2/iss1/4