The Ridiculous Libertarian Argument for Striking Down the Chemical Weapons Law That’s Before the Supreme Court

Eric Posner weighs in.
Oct. 31 2013 4:10 PM

Is the Constitution Written Like the Da Vinci Code?

That’s the ridiculous argument libertarians are making in the chemical weapons case before the Supreme Court.

(Continued from Page 1)

But the real problem with Cato’s argument is that it reads the Constitution the way an evangelical might read the Bible, or a kindergartener might read a board book—assuming on the part of the author a level of precision that an ordinary person or group of people could not possibly achieve. It’s like a fairy tale or myth in which you get your wish granted, but maliciously subject to the narrowest interpretation. You ask for eternal life and get immortality, but not lasting youth, as in the myth of Eos and Tithonus. Cato’s is an evil-fairy theory of constitutionalism that subverts the document by insisting on its literal meaning.

The founders drafted the Constitution quickly, using vague terms whose meaning they did not always agree on, and it is impossible to say how the public understood most of the Constitution’s specific provisions at the time (if indeed they thought much about them at all). It is most doubtful that anyone thought carefully about how the Necessary and Proper Clause, a generic provision, might interact with the specific wording of the treaty power. After ratifying the Constitution, Congress set to work passing laws to implement treaties, including the Treaty of Paris, which ended the Revolutionary War. Those laws, resting on the treaty, overrode state debt collection practices, much as Congress’ law implementing the Chemical Weapons Convention inserts itself into state criminal regulation. No one understood the Constitution the way that Cato insists it should be understood, and subsequent practice entrenched the commonsense notion that Congress can pass laws to implement treaties, even if this means invading traditional powers reserved to the state. That was the conclusion of the Supreme Court in Missouri v. Holland, the 1920 case that is a problem for Bond, because the court held that a federal law implementing a treaty that protected migratory birds validly overrode state laws that regulated hunting.

The effect of Cato’s approach is not to ensure consistency with the wisdom of the framers, but to establish a set of arbitrary barriers against sensible interpretation of the Constitution. This tends toward a government subject to limits that are arbitrary—based on the obstacles to careful drafting faced by lots of people working together fast, as well as on the vagaries of the historical record—rather than limits that emerge from a coherent view of the role of government.

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It says a lot about the degraded state of our legal culture that, nevertheless, arguments like Cato’s are taken seriously, even occasionally by the courts. Because we all know that ordinary people cannot write laws this precisely, Cato’s insistence to the contrary produces a number of negative effects. It leads people to deify the framers, who are assumed to be exempt from the cognitive deficiencies of ordinary mortals. It leads people to abuse history so they can claim that their current policy preferences originated in 18th-century understandings. And it forces arguments about constitutional policy into the narrow channels of the text. The reasonable (but contestable) libertarian argument that Congress possesses too much power, generally speaking, turns into the silly constitutional argument that the founders agreed to limit the power of Congress by drafting the Necessary and Proper Clause and the Treaty Clause in the style of the “Da Vinci code”—so that two centuries would pass before someone could decipher them.

The Constitution did, too, address the problem the libertarians say they’re worried about. The treaty power can be exercised only with the consent of two-thirds of the Senate, a formidable standard, and the Senate is the chamber that was established to protect the interests of states. Thus, the states, acting through their representatives in the Senate, can ensure that Congress does not run roughshod over federalism, by blocking ratification of treaties or ensuring that treaties are subject to conditions that limit their domestic effect. Such limits have been put in place a number of times. And in 224 years, no treaty that drains states of their police powers has been ratified.

Why doesn’t this suffice to preserve federalism against a flood of anti–death penalty and anti–home-schooling treaties? That part no one has explained.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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