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In recent years, the Supreme Court has almost always deferred to executive branch views on treaty interpretation issues. Executive dominance was not always the norm, though. In the first fifty years of U.S. constitutional history, between 1789 and 1838, the Supreme Court decided nineteen cases in which the U.S. government was a party, at least one party raised a claim or defense on the basis of a treaty, and the Court decided the merits of that claim or defense. The U.S. government won only three of those nineteen cases. Two other cases were effectively split decisions. And the government lost fourteen of the nineteen cases. Thus, there is a striking contrast between the zero deference approach that the Court applied in the early nineteenth century, and the near-total deference approach that the Court applies today.

This essay surveys judicial decisions from 1789 to 1838 in cases raising treaty interpretation issues where the U.S. government was a party. The analysis demonstrates that, during this period, courts did not defer at all to the executive branch on most treaty interpretation questions. The judicial record from the early nineteenth century suggests, at a minimum, that the Constitution does not require judicial deference to the executive branch on treaty interpretation issues. Insofar as judicial decisions in the initial decades after adoption of the Constitution provide evidence of the Founders' original understanding, the historical record suggests that the zero deference approach is consistent with the Framers' views on this issue.



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