Machine generated contents note: About the Authorvii
I. Introduction: Great Case and Bad Law1
II. Issues and Non-Issues: The Wheat, the Chaff, and the Hidden
V irus15
III. Disarming the Virus: "Dual" Versus "Unitary" Theories of Treaty
Interpretation31
A. General Note on Constitutional Interpretation31
B. Constitutional Text and the Treaty Power33
C. Constitutional Theory, History and Practice34
1. Separation of power theory generally34
2. Bicameralism and the presentment clauses: I.N.S. v. Chadha
and Clinton v. New York City 35
3. Treaty power theory generally38
4. Treaty practice under the Constitution40
D. Primary Authority 42
E. Secondary Authority 46
F. Further Inconsistencies With the Foreign Relations Law and
Practice of the United States56
G. Policy Concerns61
H. A Brief Comparative Note67
I. The Right Stuff70
IV. "Domestic Conditions": The Invisible Issue and the Trail of
Invisible Authority71
A. Does the Senate Have Authority to Attach "Domestic
Conditions" to Treaty Advice and Consent?71
B. Even If "Domestic Conditions" Are Within Senate Authority,
Are the "Dual" Approach and the "Senate Treaty Condition"
Constitutional? 81
1. Constitutionality of the "dual" approach81
2. Constitutionality of the "Senate Treaty Condition" 86
C. The Restatement Position and the Trail of Invisible Authority89
D. The Source: Professor Henkin's Niagara Reservation Article99
E. More Right Stuff112
V. Into the Fray and Damn the Torpedoes: The Original Great Case,
Senate Intent and Perverse Conclusion of the "Dual" Approach 113
A. Focusing the Issue 113
B. Intent as to Treaty Meaning 115
C. Intent as to Treaty Bargain: The Rest of the Story119
D. A Postscript on the Nature of the Executive Branch Testimony 123
VI. A Brief Excursion: More Ships in the Night127
A. The Vortex Expands 127
B. The Rainbow Navigation Case and the Momentary
Reappearance of "Domestic Conditions"129
C. The Stuart Case and the Beginning of a Non-Debate About the
Use of Senate Materials131
D. An Exuberant Defense of the Restatement: Windmills Fall While
the Virus Stays Hidden141
E. A Fresh Look at the Cases: The Vindication of Justice Scalia's
View of International Agreements as Compacts among Nations150
VII. Conclusion: Reclaiming the Rule of Law in United States
Treaty Practice169.
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Treaty interpretation, the constitution, and the rule of law by John Norton Moore. ISBN 0379214431. Published by Oceana in 2001. Publication and catalogue information, links to buy online and reader comments.
