son, and Whitney v. Robertson,7 though the point is not expressly discussed, it would seem that the court impliedly held that a treaty might modify revenue laws, for in these cases the effect of treaties upon existing tariff laws is considered without a suggestion that the inquiry is an unnecessary one because of the inability of the treatymaking power to modify such statutes.

6 122 U. S. 116; 7 Sup. Ct. Rep. 1115; 30 L. ed. 1118.

7 124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386.

CHAPTER XXV

THE CONSTITUTIONAL EXTENT OF THE TREATY-MAKING POWER

Treaty-making power not expressly limited

The treaty-making power is granted in the Constitution without any express limitations as to the subjects to which it may relate. And all treaties, without qualification, are declared to be the supreme law of the land, "anything in the Constitution or laws of any State to the contrary notwithstanding." If, then, there are any limitations upon its extent, they must be found inherent to the nature of treaties themselves, or implied in other clauses of the Constitution, or in the very nature of the polity which that instrument is designed to create and maintain.

No treaty has ever been held unconstitutional in any court, Federal or State, in the United States. That there are, however, limits, despite the fact that in no case has there arisen the necessity for applying them in a court of law, would appear beyond question. From the early years of the present Government to the decision of the Insular Cases in 1901, the Supreme Court has, upon frequent occasions, stated, not only in general terms, but with reference to specific matters, that there are limits to the subjects that may, by treaty, be made the supreme law of the land.1 And in Downes v. Bidwell 2 four of the majority

1 New Orleans v. United States, 10 Pet. 662; 9 L. ed. 573; Pollard's Lessee v. Hagan, 3 How. 212; 11 L. ed. 565; Cherokee Tobacco Case, 11 Wall. 616; 20 L. ed. 227; DeGeofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642, and cases there cited.

2 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. For addi

justices declare in their opinion that the treaty-making power is incompetent to incorporate annexed territory into the United States. And the minority justices assert that "a treaty which undertook to take away what the Constitution secured, or to enlarge the Federal jurisdiction, would be simply void."

These dicta of the Supreme Court are really obiter in that in no case was a treaty provision held void. However, the statement being so often and so positively asserted it may be taken for granted that there are constitutional limits to the treaty-making power, and that when these limits are overstepped, the courts will interpose their veto.

The treaty-making power and the reserved rights of the States

The supremacy of a Federal treaty over a conflicting State law, with reference to matters not reserved to the States, has not been questioned since the time it was established that a Federal statute, enacted within either the concurrent or exclusive constitutional competency of Congress, operates to nullify all inconsistent State legislation. In this respect, as the Constitution expressly declares, treaties and acts of Congress are upon precisely the same footing.3

tional declarations by the Supreme Court that treaties are necessarily subordinate to the provisions of the Constitution, see Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; United States v. The Peggy, 1 Cr. 103; 2 L. ed. 49; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; Doe v. Braden, 16 How. 635; 14 L. ed. 1090; Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740. In United States v. Wong Kim Ark, 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890, the minority point out that the effect of the decision of the majority is to limit the treaty-making power with reference to the prevention of children of resident aliens, born within the United States, from becoming citizens of the United States.

3

3 Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; Fairfax v. Hunter, 7 Cr.

It may, then, be considered as established that a treaty entered into by the Federal Government with respect to a matter within the Federal jurisdiction is supreme over a conflicting State law. This leads to the question whether, by an exercise of the treaty-making power, the Federal Government may regulate matters within the States which it may not control by an act of Congress, and if, in this respect, the treaty-making power is broader than the legislative, in what respects, and to what extents, it is broader.

Upon this point the declarations of the Supreme Court are not completely satisfactory. In various of its opinions this tribunal has explicitly asserted that the rights reserved by the Constitution from the control of the other departments of the Federal Government may not be infringed by its treaty-making power.1

Opposing, however, the dicta of these cases there is a line of cases in which treaties have been held constitutional with reference to matters which are admittedly not within the power of Congress to control. And, also, there have been numerous cases in which State laws with reference to matters within the ordinary legislative competency of the States, have been held void because of conflict with subsisting Federal treaties.5

6

Thus, in the case of De Geofroy v. Riggs, it is declared:

603; 3 L. ed. 453; Chirac v. Chirac, 2 Wh. 259; 4 L. ed. 234; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628.

4 Prevost v. Greenaux, 19 How. 1; 15 L. ed. 572; License Cases (dissenting opinion of Daniel), 5 How. 504; 12 L. ed. 256; Passenger Cases (dissenting opinion of Taney), 7 How. 283; 12 L. ed. 702.

5 Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; Hopkirk v. Bell, 3 Cr. 454; 2 L. ed. 497; Fairfax v. Hunter, 7 Cr. 603; 3 L. ed. 453; Chirac v. Chirac, 2 Wh. 259; 4 L. ed. 234; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628. See also dictum in Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244. See also note 8.

6 133 U. S. 258; 10

Sup. Ct. Rep. 295; 33 L. ed. 642.

"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. It is also clear that the protection that should be afforded the citizens of one country owning property in another, and the manner in which the property may be transferred, devised or inherited, are fitting subjects for such negotiations and of regulation by mutual stipulations between the two countries... 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."

In a number of instances State laws with reference to matters ordinarily within State cognizance have been held void when in conflict with existing Federal treaties. Examples of this are laws denying the right of the alien to be employed by contractors upon public works, or to be employed by private corporations.8

How, then, are we to harmonize these declarations that the reserved rights of the States may not be infringed by

7 Citing Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.

8 Baker v. Portland, 5 Sawyer, 566; In re Tiburcio, 6 Sawyer, 349; In re Ah Chong, 6 Sawyer, 451. Cf. Proceedings of the Am. Soc. of International Law, 1907, address by Prof. C. N. Gregory.