Judge Rosemary Barkett Final.pdf - Columbia Law School

JUDGE ROSEMARY BARKETT FINAL.DOC 8/19/2007 8:32:54 PM
472 COLUMBIA HUMAN RIGHTS LAW REVIEW [38:471
the House of Representatives challenged President Carter’s use of
the treaty power to convey to the Republic of Panama the Panama
Canal. 4 The Congressmen attempted to argue that Article IV of the
Constitution gives Congress exclusive power to convey to foreign
nations any property, such as the Panama Canal, owned by the
United States. In the majority the Court said, “[the] thesis seems to
be that the President and Senate cannot exercise under the treaty
power any power granted to Congress. We agree with Professor
Henkin that such a narrow view of the treaty power would, by
outlawing treaties on matters as to which Congress could legislate
domestically, virtually wipe out the treaty power” (quoting Henkin’s
Foreign Affairs and the Constitution). 5
The dissenter in that case, however, was also a reader of
Louis Henkin’s work, and after quoting from another Henkin passage
therefrom said,
[t]he foregoing quotation does not support the
assertion that Henkin’s treatise agrees with the
conclusion of the Per Curiam opinion . . . The Per
Curiam opinion states at note 4 that among the
authorities agreeing with its position is Prof. Henkin.
. . . This opinion does not contend that the Executive
lacks the power to make a treaty disposing of
property but rather that such a treaty requires an act
of Congress to become effective. Henkin does not
address this question directly, and his comments are
not inconsistent with this position. See Henkin,
supra, at 149. 6
The dissent continues its extremely lengthy opinion positing
that Professor Henkin in reality agrees with the dissent and not with
the majority. And it goes on, and I quote, “[t]he passage to which the
majority refers as indicating that Prof. Henkin is in accord with its
position begins with the statement,” 7 which it then quotes and then
continues,
The Per Curiam opinion grasps at the word
“unilaterally” in one sentence and asserts therefrom
that Henkin in the next sentence is also speaking
4. Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978).
5. Id. at 1057 n.4 (per curiam) (citing Louis Henkin, Foreign Affairs and
the Constitution 149 (1965).
6. Id. at 1069 n.10 (MacKinnon, J., dissenting).
7. Id.