the treaty power with the fact that, in specific instances, the invasion of these rights has been upheld?

Strictly speaking, the two positions, thus absolutely stated, cannot be harmonized. There is no principle which can be stated that will bring the dicta quoted into consonance with the decisions referred to. Either the dicta denying to the treaty-making power the right to infringe State rights are wrong, and must be abandoned, or the decisions upholding such infringement were improper, and will not be followed in the future.

The author is convinced that the obiter doctrine that the reserved rights of the States may never be infringed upon by the treaty-making power will sooner or later be frankly repudiated by the Supreme Court. In its place will be definitely stated the doctrine that in all that properly relates to international rights and obligations, whether these rights and obligations rest upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses all the powers of a constitutionally centralized sovereign State; and, therefore, when the necessity from the international standpoint arises the treaty-making power may be exercised, even though thereby the rights ordinarily reserved to the States are invaded.

Implied limitations upon the treaty-making power

Assuming, then, that the reasoning that has gone before is correct, it may be asked: Are we led to the conclusion that, in extent, the treaty-making power is without constitutional limits?

Briefly stated, the answer is that these limitations are to be found in the very nature of treaties. That is, that

the treaty-making power may not be used to secure a regulation or control of a matter not properly and fairly a matter of international concern. It cannot be employed

with reference to a matter not legitimately a subject for international agreement, any more than can the States under a claim of an exercise of their police powers regulate a matter not fairly comprehended within the field of police regulation. Thus, while it might be appropriate for the United States, by treaty with England, to provide that English citizens living in the United States should have certain rights of property, or schooling privileges, etc., within the States, State law to the contrary notwithstanding, it would not be appropriate, and, therefore, would not be constitutional, for the United States by such a treaty to provide that all aliens, whether British subjects or not, should enjoy these rights within the States within which they might live. So likewise, it would not be a proper or constitutional exercise of the treaty-making power to provide that Congress should have a general legislative authority over a subject which has not been given it by the Constitution; or that a power now exercised by one of the departments of the General Government should be exercised by another department. For these are matters of domestic national law with which foreign powers have no concern. In short, the treaty-making power is to be exercised with constitutional bona fides.

The principle which has been stated, that, to be constitutionally valid, a treaty must have reference to a subject properly a matter of international agreement, excludes from the Federal treaty-making power the authority to disregard those prohibitions of the Constitution, express and implied, which are directed not to Congress but to the National Government as a whole.

One final point with reference to the treaty-making power deserves notice. This is that where, for its enforcement, a treaty requires ancillary legislation, Congress would seem to have the constitutional power to enact the needed laws, even though these may relate to matters not

within the general sphere of its legislative authority. For it is to be presumed that the General Government has the power to render effective a treaty which it has the constitutional power to enter into. A somewhat analogous case is the legislative power recognized to belong to Congress with reference to matters of admiralty and marine, because of the grant to the Federal Judiciary of jurisdiction over admiralty and maritime causes.9

The denunciation of treaties

Though the Senate participates in the ratification of treaties, the President has at times exercised the authority, without asking for senatorial advice and consent, to denounce an existing treaty and to declare it no longer binding upon the United States. In important cases, however, it is usual for him to seek senatorial approval before taking action. But whether or not this approval be sought, the courts hold themselves bound by the denunciation, the existence or non-existence of a treaty being a political question the decision upon which by the political departments of the government is binding upon the judicial department.

Construction of treaties

As to public rights the courts hold themselves bound by

9 That the treaty-making power is incompetent to "incorporate" foreign territory into the United States (Insular Cases) or to provide that children born within the United States of alien parents shall not be citizens of the United States (United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. Rep. 456; 42 L. ed. 890) we have already seen. That the treaty-making power may alienate territory would seem to be certain. See Willoughby On the Constitution, § 219. See also the same work, §§ 220-222, for a discussion of constitutional questions connected with the violation of treaties, whether by affirmative acts upon the part of the United States, by failure of Congress to enact the necessary ancillary legislation, by subsequent repealing statute, or by the declaration of the courts that they are unconstitutional and void of legal force.

the construction given to treaties by the political departments. As to private rights, however, arising under treaties in force, and even as to public rights when these are inseparable from private rights, the courts exercise independent judgment as to the meaning to be given to treaty provisions.

CHAPTER XXVI

THE AMENDMENT OF THE FEDERAL CONSTITUTION

The amending clause

The amendment of the Federal Constitution, while politically a subject of great importance, has given rise to few legal adjudications.

Article V of the Constitution provides: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as parts of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate."

It will be seen that two methods for proposing, as well as two methods for ratifying proposed amendments are provided. In practice, however, the fifteen amendments which have been added to the Constitution as originally adopted have all been proposed by Congress and that body has in each instance provided for ratification by the State legislatures.

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