The Three Lives of James Madison: Genius, Partisan, President

by Noah Feldman

Madison to Edmund Pendleton, January 2, 1791, PJM, 13:344. The letter also contains an important discussion of the meaning of the clause of the Constitution making treaties the supreme law of the land. Responding to Pendleton’s query whether a provision of the proposed debt-resolution treaty with Great Britain operated automatically or required subsequent legislation to implement, Madison wrote: As treaties are declared to be the supreme law of the land, I should suppose that the words of the treaty are to be taken for the words of law, unless the stipulation be expressly or necessarily executory, which does not in this instance appear to be the case. Ibid., 342. What is noteworthy about this simple formulation is that it is exactly the opposite of the rule adopted by the Supreme Court of the United States in Medellín v. Texas, 552 U.S. 491 (2008), according to which treaties do not become the supreme law of the land without subsequent legislation unless they expressly state that they are intended to become so.