1 that the issues presented then bear no resemblance to the issues now presente with respect to the same constitutional provisions.* The Department's memorandum goes into the history of the constitutional prc visions dealing with the treaty power and with the power of treaties." I demonstrates that under the Articles of Confederation a treaty or treaties ha been made which the Congress was powerless to enforce under the Articles o Confederation. The Department's memorandum lays emphasis on the Treaty of Peace with Great Britain signed at Paris September 3, 1787, which provided: "ARTICLE IV "It is agreed that creditors on either side shall meet with no lawfu impediment to the recovery of the full value in sterling money, of all bon: fide debts heretofore contracted" (8 Stat. 82); on article V of that treaty dealing with confiscated lands, on the State law interfering with the collection of those debts, and on the cases dealing with th power of this treaty after the Constitution was adopted.*• No reference is made, however, to the treaty of May 4, 1796, with Grea Britain' under article VI of which provision was made for the ascertainmen of the amount of debts uncollected "by the operation of various lawful impedi ments since the peace" and which were to be paid by the United States." Certainly nothing like that situation faces the United States today. There is today no question of an outstanding treaty made by the United States which it is powerless to comply with because of the recalcitrance of th States. Exactly the reverse is the situation confronting us. Under this treaty powe and this power of treaties the very existence of the States as sovereign bodies their constitutions and their laws-even those relating exclusively to thei internal affairs-are subject and subservient to the Federal Government. It serves no purpose to review the debates in the Constitutional Convention or in the ratifying conventions. As set forth in the Department's memorandum much was said about the treaty power and about the treaty situation then con fronting the country, which is far different from that with which we are faced As stated in the quotation above from Hamilton's Seventy-fifth Federalis Paper, the reposing of the treaty power as it was placed was assailed on variou grounds with no small degree of vehemence. It is worthy of note, however, that at least three States proposed amendments dealing with the power of treaties-the supremacy clause as follows: Suggested amendment by Virginia: "7th. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claim of the United States, or any of them, or their, or any of their rights or claims t fishing in the American seas, or navigating the American rivers, shall be made but in cases of the most urgent and extreme necessity; nor shall any such treat be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively." (III, Elliot's Debates, p. 660.) Suggested amendment by Pennsylvania: "Article 6, paragraph 2, XII. That to article 6, clause 2, be added the following proviso, viz. Provided always that no treaty, which shall hereafter be made shall be deemed or construed to alter or affect any law of the United States, of of any particular state, until such treaty shall have been laid before and assented to by the House of Representatives in Congress." (II, Elliot's Debates, p. 546.) That difference is recognized in the case of Missouri v. Holland (252 U. S. 416) which case more than any other is responsible for the present proposals to amend the Constitution and which will be referred to repeatedly throughout this memorandum. Mr Justice Holmes said. p. 433: "The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." D. of J. M., p. 11. D. of J. M.. p. 12. 78 Stat. 116. Finch: The treaty clause amendment: The case for the association (38 Am. Ba Assn. Journal 467, at 529), reviews this entire matter and shows that under a treat signed January 8, 1802, the United States paid Great Britain the sum of £600.000 with which to compensate the creditors for their losses. Attention might be called to the Trading With the Enemy Act and to the "freezing" of foreign credits in the late war $ zgested amendment by North Carolina: That no treaties which shall be directly opposed to the existing laws of Cited States in Congress assembled shall be valid until such laws shall be led, or made conformable to such treaty; nor shall any treaty be valid his contradictory to the Constitution of the United States." (IV, Elliot's Dites, p. 246.) it is further worthy of note that in the North Carolina convention Mr. Henry Att stated: It is feared, by some people, that, by the power of making treaties, they might e a treaty engaging with foreign powers to adopt the Roman Catholic religion = the United States, which would prevent the people from worshipping God ading to their own consciences." Mariv. Holland, referred to earlier, poses the problem as no other case Congress had passed a statute regulating the shooting of migratory birds. Fecerai lower courts held this statute unconstitutional as not within the powers mated to Congress. Thereupon in 1916 the United States made a treaty with Go Britain on the subject, which treaty provided for implementing legislation. 1818 the Congress passed a statute in implementation of that treaty regulating the shooting of migratory birds. Missouri sought to enjoin the enforcement of The statute, and the case of Missouri v. Holland resulted. The Supreme Court Justice Holmes writing, held that the treaty being a valid treaty, the statute =-pementation thereof was valid under the "necessary and proper" clause. It is little wonder that this decision has been said dangerously to approach a itutional amendment," for there we have this sequence of affairs: 1. A statute. 2 That statute declared unconstitutional on the ground that the Constitu- 4. A similar statute passed. 5. That statute declared constitutional as an implementation of the treaty. Furthermore, this was a treaty made for the specific purpose of giving Congress sative power in a field not theretofore within its competence, according to rts which passed upon the question. That its objective was laudatory does per the constitutional problem involved. That case, more than any other, has brought to the consciousness of the people Trojan Horse" which has been present in the Constitution since 1787, but of late threatens to be affreighted with world legislation having the effect mestic law by virtue of the treaty power and the power of treaties. Are there any limitations on the treaty power-this power which "extends to L proper subjects of negotiation between our Government and the governments fter nations"? rangested limitation on the treaty power memorandum of the Department of Justice states (p. 18): Treaties es cannot violate specific prohibitions of the Constitution, nor can they ert its essential nature." a by the courts to that effect are cited (pp. 19, 20) but even as ardent a ent of no change in the treaty power as Prof. Zechariah Chafee, Jr., of in commenting on this phase of the matter said: 11 Ndosht, the question whether the treaty power is subject to constitutional tations has never been squarely decided by the Supreme Court, because fortu y no American treaty has come near enough to violating the Constitution e the issue worth litigating." 12 Pessor Chafee is correct in stating that there is no case holding a treaty terrutional and he regards the first sentence of the proposed amendment of American Bar Association as “unobjectionable in itself, but unnecessary.” re should certainly be no objection by the Department of Justice to that --which reads: "A ~ vision of a treaty which conflicts with any provision of this Constitution be of any force or effect." auturi v. Holland was followed a few years later by United States v. Curtiss* Corporation (299 U. S. 304). These cases have done much to cast a deep won the earlier dicta referred to. Fot's Debates (2d ed.. 1901), 191, 192. recht. An International Bill of Rights of Man, p. 179. #4 The Harvard Law School Record, No. 3, p. 1. We have seen above what Missouri v. Holland did. Let us follow the Court's reasoning. Mr. Justice Holmes said at page 432: "It is unnecessary to go into any details, because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States." "To answer this question it is not enough to refer to the tenth amendment, reserving the powers not delegated to the United States, because by article II, section 2, the power to make treaties is delegated expressly, and by article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under article I, section 8, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed." Speaking of he lower court decisions which had invalidated the prior act of Congress as unconstitutional, Mr. Justice Holmes stated: "Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government' is not to be found (Andrews v. Andrews, 188 U. S. 14, 33).” Mr. Justice Holmes further said: We "The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. must consider what this country has become in deciding what that amendment has reserved." Probably the connotation of what is said about the tenth amendment is a full recognition by the Supreme Court that the powers reserved by that amendment in no way curtail or circumscribe the actions of the Federal Government under the expressly granted treaty power and the "necessary and proper" clause. We do not find that this language, or any other in the opinion, "clearly states that there are constitutional limitations on the treaty power and that a treaty may not violate an express prohibition of the Constitution," as does the Department of Justice (footnote 29, p. 21, of D. of J. M.). We think it is accurate to say that Mr. Justice Holmes did not say what qualifications, if any, to the treaty-making power existed. At most he did not exclude the possibility of such limitations, but noted that the treaty there under consideration did not "contravene prohibitory words." This may have intimated what in his opinion might be, were a case presented which called upon him to decide whether there were limitations on the treaty power. An analysis of Mr. Justice Holmes' reasoning-giving to his not too affirmative statements about limitations on treaty power all that the Department of Justice claims for them-leads to the following conclusions: So far as the exercise of the treaty power is concerned, no powers are left to the States or the people under the tenth amendment because the treaty power swallows all save perhaps those things specifically forbidden in the Federal Constitution. But those are prohibitions and are not enumerations of powers granted to the Federal Government or reserved to the States or to the people. Addition to this situation of the catalyst of the present position of the State Department: "There is no longer any real distinction between 'domestic' and 'foreign' affairs," "3 serves to emphasize further the position of the Federal 13 Opening sentence of State Department Publication 3972, Foreign Affairs Policy Series 26, released September 1950, with a foreword by President Truman. sverament that there are no powers reserved to the States or to the people it comes to Federal legislation on any subject in implementation of a Startling as this may sound, it is probably the logical result of the megation of treaty power as interpreted by the Supreme Court. would appear, therefore, that we have come to the directly opposite cons as to the scope of the treaty power from that entertained by Thomas dren and expressed by him in his Manual of Parliamentary Practice. By the general power to make treaties, the Constitution must have in25ed to comprehend only those subjects which are usually regulated by treaty, not be otherwise regulated. 3. It must have meant to except out of See the rights reserved to the States, for surely the President and Senate canby treaty what the whole Government is interdicted from doing in any C 8 v. Curtiss-Wright (299 U. S. 304, at p. 318), we find: It results that the investment of the Federal Government with the powers eternal sovereignty did not depend upon the affirmative grants of the Con The powers to declare and wage war, to conclude peace, to make Nuts, to maintain diplomatic relations with other sovereignties, if they had been mentioned in the Constitution, would have vested in the Federal ment as necessary concomitants of nationality. Neither the Constitution the laws passed in pursuance of it have any force in foreign territory unless - "wet of our own citizens (see American Banana Co. v. United Fruit Co., 213 * 47, 356); and operations of the Nation in such territory must be governed ates, international understandings, and compacts, and the principles of rational law. As a member of the family of nations, the right and power of ted States in that field are equal to the right and power of the other ers of the international family. Otherwise, the United States is not com&vereign. sportant to bear in mind that we are here dealing not alone with an ty vested in the President by an exertion of legislative power, but with az authority plus the very delicate, plenary, and exclusive power of the t as the sole organ of the Federal Government in the field of international a power which does not require as a basis for its exercise an act of , but which, of course, like every other governmental power, must be Cd in subordination to the applicable provisions of the Constitution." the American Bar Association committee on peace and law has pointed Mr. Justice Sutherland was confusing "the United States Government -wed by foreign nations from the standpoint of international law with the of the United States Government in international relations as a matter mestic constitutional law" 15 and while Mr. Justice Jackson on Youngsivet & Tube Co. v. Sawyer (343 U. S. 579, footnote 2, p. 635), has pointed at Luch of Mr. Justice Sutherland's opinion was dictum, these two proments in Missouri v. Holland and the Curtiss-Wright case do, as the Chatte on peace and law assert, "go in the opposite direction of an unlimited "wer." Derartment of Justice itself calls attention to the case of Ware v. Hylton (*. 16, 237), “in which Justice Chase expressed doubts as to his power to treaty void." " herz ore, in referring to the convention between Great Britain and the ~States, proclaimed May 22, 1924, relating to the status of alcoholic liquors stores or cargo destined for a foreign port and moving within our terwaters on British vessels (43 Stat. 1161). Prof. Arthur E. Sutherland, **z.. 2d sess.. H. Doc. No. 739, p. 283: pe distribution of legislative power between the Federal Government and the ce of the most difficult before the Constitutional Convention of 1787 and in -es even led to the suggestion by a few that the States themselves be abolMedian wrote to Jefferson on October 24, 1787, in part, as follows: and object, the due partition of power between the general and local govern* perhaps of all, the most nice and difficult. A few contended for an entire = the States; some for indefinite power of legislation in the Congress, with a the laws of the States: some for such a power without a negative; some for pwer of legislation, with such a negative; the majority finally for a limited ***t the negative. The question with regard to the negative underwent repeated and was finally rejected by a bare majority. As I formerly intimated to you in favor of this ingredient, I will take this occasion of explaining myself on Such a check on the States appears to me necessary. 1. To prevent encroachthe general authority. 2. To prevent instability and injustice in the legislation III Farrand, The Records of the Federal Convention. 133." of Committee on Peace and Law, February 1, 1952-second printing. Jr., of Harvard Law School stated in a recent article: "President Coolidge an the Senate evidently thought that a treaty could prevail over at least one amend One Milliken, who was alleged to be a citizen and a mariner as well as secretar of an incorporated association of masters and mates, and one Smith, who wa alleged to own steamships and also stock in a steamship line, sought a declaratio that this treaty was repugnant to the Constitution and an injunction agains adherence to or enforcement of it by officials of the United States. Advantage were s'leged to be secured by the treaty to British ships entering our ports ove American ships. The Circuit Court of Appeals for the Second Circuit, after reviewing th allegations, in affirming a decree for defendants, stated: "We need vot and do not pass upon the alleged conflict of the treaty wit the Constitution, for we are satisfied that the appellants have not presente by their pleading sufficient allegations showing that they or their proprietar rights have been damaged, so as to warrant the inquiry" (Milliken v. Stone, 1 N (20) 981, 984 Certiorari denied, 274 U. S. 748, No. 1033). In connect on with any consideration of the treaty power and the power o treaties, it should be Þortie in mind that the first amendment to our Constitutio reads: "Congrese shall make me lair respecting an establishment of religion, or pro hibiting the five exercise thereof; or abridging the freedom of speech, or of th press; or the right of the people peaceably to assemble, and to petition th Government for a redress of grievances." [Emphasis added.] Article VI of the Constitution denominates three things as the supreme lav of the land: the Constitution; laws made in pursuance thereof; and treatie made, or which shall be made, "under the authority of the United States." A self executing treaty is of the third class. It is not a law made by Congress and Mr. Justice Holmes said in Missouri v. Holland, supra, "It is open to question whether the authority of the United States means more than the formal act prescribed to make the convention." There is, therefore, grave question whether a self-executing treaty dealin with maffers enumerated in the first amendment would encounter a constitu tional prohibition oven assuming that such a limitation on the treaty power exists Therefore, it emnot be categorically claimed as the Department of Justic does claim that ; "Preaties cannot violate specific prohibitions of the Constitution nor can they subvert its essential nature." 18 Rather should it be said that the existence of such a limitation is shrouded In doubt and should be clarified once and for all. A second suggested limitation on treaty power A second possible limitation on the treaty power is that suggested by Mr. Justice Field's language in the Chinese Exclusion case, Chan Ping v. United States (130 U. S. Ost, at p. 609); "The power of exclusion of foreigners being an incident of sovereignty be longing to the Government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract." This would seem to be a necessary corollary of the provisions of sections 1 of articles I, II, and III of the Constitution vesting respectively all legislative pow ers in the Congress of the United States, the executive power in the President, and the judicial power in the Supreme Court and such inferior courts as Congress should establish. Mr. Burton Andrews in an article entitled "Amending the United States Constitution for Participation in World Government." " states that: "For the National Government to attempt without a constitutional amendment to give by treaty, or otherwise, a world government 'authority to enact Restricting the Treaty Power, 65 Harvard Law Review, p. 1319. 18 D. of J. M., p. 18. The Lawyer and Law Notes, vol. 4, No. 3, pp. 21, 23. |