80

of aliens to inherit property 30 or to engage in local occupations. Almost half a century ago, Mr. Justice Holmes, in Missouri v. Holland,81 settled that, since the treaty power was delegated to the federal government, what is within that power is not reserved to the states. 82 Treaties, then, are not limited by any "invisible radiation" 33 from the truism that is the tenth amendment.34 Because Missouri v. Holland finally disposed of Jefferson's third limitation, Senator Bricker sought to have the Constitution amended to "repeal" that case. The decision has never been questioned in the Supreme Court, and Senator Bricker's abortive attempts only reaffirmed its continuing validity.

Opponents of American adherence to human rights conventions cannot, and do not, invoke the long-rejected Jeffersonian limitations. just discussed. While not unrelated to those propositions, their arguments are essentially closer to Jefferson's first two limitations-that a treaty "must concern the foreign nation," and that it must deal with "objects which are usually regulated by treaty, and cannot be otherwise regulated." These limitations, perhaps, are also implied in the assertions that treaties cannot deal with matters that are "of domestic concern" or matters "essentially within the domestic jurisdiction of the United States."

The fact that two of Jefferson's four contentions have been clearly rejected by later interpretations of the Constitution might be enough to dismiss him as an authority on the scope of the treaty power today. Still, all his suggestions require consideration on their merits, and Jefferson's first two limitations have support in other authority, including some in the United States Reports.

30 ARMS CONTROL 33-34, 176 n.25, 177 n.28. Compare Clark v. Allen, 331 U.S. 503 (1947), with Asakura v. Seattle, 265 U.S. 332 (1924), and Hauenstein v. Lynham, 100 U.S. 483 (1879). For the authority of states to deal with inheritance by aliens in the absence of treaty, see Zschernig v. Miller, 389 U.S. 429 (1968).

81 252 U.S. 416, 433 (1920). Contrary to some impressions, Holmes was not making new law. ARMS CONTROL 33-34, 176 n.25.

82 See Law of the Land 909-13. Even before Missouri v. Holland, 262 U.S. 416 (1920), the view expounded by Justice Holmes was that of the majority. ARMS CONTROL 33-34, 176 n.25. On the other hand, even after Missouri v. Holland was decided, its implications were not clearly understood, sometimes even by American negotiators. For example, American representatives for some time continued to claim that the United States could not undertake to regulate the manufacture of armaments because manufacturing was local and reserved to the states. The Department of State recognized its error several years later and officially abandoned the position in 1932. ARMS CONTROL 176-77 n.25.

83 Missouri v. Holland, 252 U.S. 416, 434 (1920) (Holmes, J.). 84 "Our conclusion is unaffected by the Tenth Amendment. The amendment states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 123-24 (1941).

35 Some of them, at least, would be particularly reluctant to claim that human rights are reserved to the Congress. Like Senator Bricker, they might insist that Congress could not deal with them either. But see Civil Rights Act of 1964, 78 Stat. 241-68 (1964), 28 U.S.C. § 1447 (d) (1964), 42 U.S.C. §§ 1971, 1975a-1975d, 2000a2000h-6 (1964); cases cited note 29 supra.

In the Supreme Court, the best known statement of implied limitations on the treaty power is probably that made by Mr. Justice Field in Geofroy v. Riggs:

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.

. . But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.88

37

Mr. Justice Field does not expound what restraints arise "from the nature of the government itself and of that of the States." It may be that these restraints consist only of those he specifies, for example, that a treaty cannot cede territory of a state without its consent. But some additional limitation may be implied in his suggestion that treaties can deal with "any matter which is properly the subject of negotiations with a foreign country.'

"38

In other cases, too, there are dicta that treaties may deal with:

"all those objects which in the intercourse of nations, had usually been regarded as the proper subject of negotiation and treaty;" 39 "all proper subjects of negotiation between our government and other nations;"

." 40

"all subjects that properly pertain to our foreign relations." "1

Noteworthy for its echoes of Jefferson is Chief Justice Taney's statement in Holmes v. Jennison:

36 133 U.S. 258, 267 (1890).

42

37 Some even question this limitation. See ARMS CONTROL 177 n.30. Other limitations suggested would bar the use of a treaty to abolish a state's militia or destroy its republican form of government. Id. at 34-36, 60-61.

38 Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (emphasis added). The same implication might lie in an earlier sentence in the opinion, where the Court stated: "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear." Id. at 266.

99 Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872).

40 Asakura v. Seattle, 265 U.S. 332, 341 (1924).

41 Santovincenzo v. Egan, 284 U.S. 30, 40 (1931).

42 39 U.S. (14 Pet.) 540 (1840).

The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects, which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty; and which are consistent with the nature of our institutions, and the distribution of powers between the general and state governments.*

43

Each of these judicial dicta, it should be noted, was made by the Court while upholding an exercise of the treaty power. Each statement was intended to assert the fulness of the treaty power, rather than any limitation upon it. Only the cautious use of "proper," "properly," "usually," and "usually regarded as proper"--each phrase probably echoing those which preceded it--suggests some possible limitation. There is no indication that any of the Justices had one particular qualification in mind, or that they sought to exclude any particular use of the treaty power. No treaty of the United States has been held invalid on the ground that it dealt with an "improper” subject.* No treaty has been avoided by the President or rejected by the Senate because its subject matter was not constitutionally "proper" for regulation by treaty. But if we are to give these judicial statements any content, it is not unreasonable to suggest that they might support propositions akin to Jefferson's first two clauses.

45

How have these alleged limitations fared in the history of the Constitution? The second half of clause (2)—that treaties can deal only with matters that cannot be regulated except by treaty-is ambiguous. If it means that a treaty may deal only with matters on which Congress could not legislate, we are back to Jefferson's fourth principle, which has long been repudiated. Today, surely, it is difficult to conceive of any matter that could not be regulated other than by treaty; any undertaking having effect within the United States could

43 Id. at 569. The same statement, in slight paraphrase, appears in Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872). In that case Mr. Justice Clifford speaks of "those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our governmenut and the relation between the States and the United States." Id. (footnote omitted). If Clifford intended to modify Taney, his statement might be read more broadly--a treaty may deal not merely with matters about which nations had negotiated, but also with those they considered proper for negotiation.

44 But cf. Power Authority v. FPC, 247 F.2d 538 (D.C. Cir.), vacated as moot, sub nom. American Pub. Power Ass'n v. Power Authority, 355 U.S. 64 (1957). However, this case was, I believe, wrongly decided. See note 65 infra.

45 Early in our history some treaties were rejected because the subject matter was within the domain of Congress and therefore, it was thought, not within the treaty power. See ARMS CONTROL 172 n.14.

46 Calhoun, too, said: "A treaty never can legitimately do that which can be done by law; and the converse is also true." 29 DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 532 (1854).

presumably be carried out unilaterally by internal legislation. In practice, the United States has always regulated by treaty those matters which it might have regulated, and did regulate, by legislation as well—the rights of aliens, tariffs, trade, extradition, consular affairs. On the other hand, if Jefferson's limitation would bar only treaties whose entire scheme could be achieved by internal legislation, it would outlaw no treaty entailing mutual obligations. Legislation conditioned on reciprocity might effectively approximate such a treaty, but it would bind neither the United States nor the other nation. Binding common standards of international behavior, whether on human rights or any other subject, cannot be achieved other than by international agreement (or international customary law).

There remains the first half of clause (2)—that the treaty power can regulate only "matters that are usually regulated by treaty." This suggestion is also found in Chief Justice Taney's statement that the treaty power reaches "all those subjects, which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty." 49 Again, the meaning of Taney's dictum, as well as that of Jefferson, is not entirely clear. We do not know whether Jefferson's "matters," or Taney's "subjects," "50 refers to the particular thing dealt with in the treaty (wheat, nuclear weapons), the rights or duties it establishes (quotas and prices, non-use of weapons), or its objectives (trade, peace). If the limitation were taken seriously, would human rights be a new subject of international negotiation? Are human rights a subject different from the traditional rights of aliens? Or are the asserted objects of human rights covenants, friendly relations and international peace, as old as treaties?

But such a limitation cannot be taken seriously. Why in law, logic, or good sense, should the United States be barred from negotiating about new subjects, or for objectives not "usually" regulated by treaty? Justice Taney's ambiguous tense is particularly troubling. If the implication is that the United States can deal by treaty only with matters that "had usually been" dealt with by treaty before 1787, it is patently unacceptable. There is as little, or less, reason for limiting the treaty power to those matters about which nations negotiated in the eighteenth century as there is for limiting the commerce power or the war powers to the needs of that era. In fact, the United States has negotiated treaties about subjects, and for objects, that were not

47 See Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS § 59 (1922). 48 See Law of the Land 921 n.41 and text accompanying.

49 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840).

50 Or Clifford's "objects," Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872).

dreamed of by the constitutional fathers (or by Taney), including the Charter of the United Nations and the Nuclear Test Ban Treaty.

51

Jefferson's assertion might mean that the United States cannot negotiate a new kind of treaty. It would not prevent the United States from entering into a treaty of a kind it has never negotiated, after other nations "had" begun "usually" to negotiate about it. Such a constitutional doctrine makes little sense for the country we have become, but it would not, in fact, bar the United States from negotiating with other nations on human rights; nations have been "usually" regulating human rights by treaty at least since the "minorities treaties" of a half-century ago, in the UN Charter, in the various regional human rights arrangements now in effect, and in the human rights covenants that have been under negotiation for almost twenty years under the auspices of the United Nations."

We are left, then, with Jefferson's first limitation—that a treaty "must concern the foreign nation, party to the contract." Jefferson apparently saw this as an inherent characteristic of a treaty, a characteristic which the Constitution incorporated when it spoke of "Treaties." It is not clear what this limitation meant for him, what would be its practical consequences, what kinds of acts or arrangements it would preclude. Perhaps this limitation approximates the one expressed more recently in the now famous remarks made in 1929 by Charles Evans Hughes, erstwhile Secretary of State and already designated Chief Justice of the United States:

What is the power to make a treaty? What is the object of
the power? The normal scope of the power can be found in
the appropriate object of the power. The power is to deal
with foreign nations with regard to matters of international
concern. It is not a power intended to be exercised, it may be
assumed, with respect to matters that have no relation to
international concerns.

So I come back to the suggestion I made at the start, that this is a sovereign nation; from my point of view the nation has the power to make any agreement whatever in a constitutional manner that relates to the conduct of our international relations, unless there can be found some express prohibition in the Constitution, and I am not aware of any which would in any way detract from the power as I have defined it in connection with our relations with other governments. But if we attempted to use the treaty-making

51 "We must consider what this country has become in deciding what that [Tenth] Amendment has reserved." Missouri v. Holland, 252 U.S. 416, 433 (1920). 62 See text accompanying notes 10-11 supra.