Antonin Scalia has a lurking fear: the Latvian Gun Grab.
In 1995, the Supreme Court decided that Congress could not use the Commerce Power to outlaw carrying a gun into a school zone. In his separate opinion Monday in Bond v. United States, Justice Scalia fretted that the school-zone case “could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools.”
I think he’s worrying about nothing, and so are the other conservatives wringing their hands over the Court’s failure to rein in the federal Treaty Power. That’s because the Constitution’s very structure is the Framers’ favored means of preventing federal overreach—a better method, in fact, than judicial review.
Scalia was so worried about the Grab that his opinion, which is formally a concurrence, reads like one of his most ferocious dissents. It’s a concurrence because all nine justices agreed that Carol Anne Bond, the pathetic protagonist of the case, should go free. Six of them—a left-right coalition of Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—agreed that the statute involved, properly read, didn’t reach the crime Bond committed. The other three—Scalia and Justices Clarence Thomas and Samuel Alito—wanted to read the statute broadly and then hold that the Treaty Power was too narrow to permit it.
Since the Treaty Power remains intact, should we worry about the Grab?
The Framers made approving a treaty difficult. Both the president and two-thirds of the Senate must agree on it. They relied on these two parts of the federal government to keep each other honest and thus preserve the Constitution. So 67 senators or so (depending on the number voting), after a public debate, would have to agree that Latvian-U.S. relations should govern guns in American high schools.
Not, as Eliza Doolittle would say, bloody likely.
You’re not satisfied? Then wait, there’s more. Both the House and the Senate would then have to pass a separate statute implementing the Grab Pact. Eliza says that’s not very likely either.
Bond, as I have explained extensively, concerned the Chemical Weapons Convention Implementation Act of 1998, in which Congress made it a crime to use a “chemical weapon,” meaning, in essence any toxic chemical used as a weapon, within the United States. The statute implemented the international Chemical Weapons Convention of 1997, which required all nations signing it to outlaw the weapons domestically.
Flash forward to 2007. Post-9/11 anti-terrorist fervor is strong. Carol Anne Bond smears dangerous chemicals around the home of the woman carrying Bond’s husband’s child. She unwisely targets a mailbox, triggering federal jurisdiction. An overenthusiastic federal prosecutor charges Bond under the act; conviction carries a sentence of “any term of years” (and execution, if the victim had died instead of suffering a mild burn on the thumb).
It was a sad case and a silly prosecution. The six-justice majority made it go away by construing the statute not to apply to “purely local crimes.” That was a perfectly ordinary piece of statutory construction, but it disappointed the right. Scalia’s Latvian scenario was as silly as the prosecution, but behind it lurks a conservative fear that—to quote an amicus brief written for the Cato Institute by Georgetown Law Professor Nicholas Quinn Rosenkranz—since the Court didn’t make itself the arbiter of “proper” treaties, “Congress’s legislative powers are not merely somewhat expandable by treaty; they are expandable virtually without limit.”
Remember that the government did not argue that the Treaty Power overrules the Bill of Rights or any other textual prohibition in the Constitution. In a 1957 case called Reid v. Covert, Justice Hugo Black wrote, “There is nothing in [the Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.” That’s been pretty generally accepted since.
So the issue in Bond is whether there’s some sort of unwritten law—what Kagan called during oral argument “invisible radiations that you think come from the structure of the Constitution”—that federal courts can invalidate any treaty they think goes “too far.”
Here’s where the political-process argument kicks in. Constitutional unlikeliness is in many ways as important a guarantee as the Bill of Rights. Two-thirds of today’s Senate might not approve the Boy Scout Law (“A Scout is trustworthy, loyal, helpful, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent”), much less a limitation on gun rights. Even in a harmonious Senate, senators representing roughly 7.5 percent of the population could block a gun treaty.
The Framers trusted this structure, with its divided powers and requirement of cooperation among the branches, to establish the right limits on Congress. Peace with Britain depended on a central government that could enforce the Treaty of Paris, and doing that required federal power to reach deep into state banking and currency laws. It’s pretty clear where a real “originalist” would come down.
Roberts gently but firmly rebuffed the move to limit the Treaty Power. He began his opinion with a reminder that the Chemical Weapons Treaty is no joke for our military personnel or our national interest. In a word portrait of “Gassed,” by painter John Singer Sargent, the chief depicts “two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station” where “they would receive little treatment and no relief,” before they died.
Agreements on chemical weapons, or nuclear proliferation, or international environmental rules, is vital to our future, military and economic. A government that cannot make and enforce such vital agreements is, in international law, not a government at all. It is a measure of our national nervous breakdown that so many wise people—including three learned justices of the Supreme Court—think somehow we can do without it.