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it violated an express prohibition imposed upon the Government of the United States or a prohibition readily implied from the nature of the government. This difference is explained by the fact that the legislative power is divided between the national government and the state governments, whereas the treaty-making power is given in toto to the national government 21 and specifically prohibited to the States.22 The distinction is recognized in Article VI, according to which statutes, to be the "supreme law of the land," must be “in pursuance" of the Constitution, while treaties need only have been made “under the authority of the United States." 23

To decide what prohibitions of the Constitution are actually applicable to the treaty-making power, a concrete examination of the various provisions is necessary. Constitutional limitations may be divided into three classes : (1) those based on the division of power between national and state governments; (2) those based upon general prohibitions of the power of government in defense of individual rights; (3) those based upon the separation of the departments of the national government.24

21 Constitution, Art. II, sec. 2, cl. 2.

22 "No State shall enter into any treaty, alliance or confederation" (Const. Art. I, sec. 10, cl. l). Against the exclusiveness of the national treaty power, Art. I, sec. 10, cl. 3 ("No State shall, without the consent of Congress. ... enter into any agreement or compact with another State, or with a foreign power") has been urged. (W. E. Mikell, Am. Law. Reg., 57: 435, 528.) In view of the earlier absolute prohibition, it seems that these "agreements and compacts” must be distinguished from treaties, probably referring “to trifling and temporary arrangements between States and foreign powers without substantial political or economic effect." (J. P. Hall, “State Interference with the enforcement of Treaties,” Proc. Acad. of Pol. Sci., 7: 555.) See also, Holmes ::. Jennison, 14 Pet. 571; Va. v. Tenn., 148 U. S. 503; Legare, Att. Gen. 3 Op. 661 (1841); C. P. Anderson, this JOURNAL, 1: 638; A. A. Bruce, Minn. Law Rev., 2: 500 (June, 1918); Crandall, op. cit., p. 141; J. P. Hall, Constitutional I aw, 1911, p. 328.

23 The immediate motive for the difference in form appears to have been to insure the validity of treaties concluded before 1789. (Farrand, op. cit., 2:417; Corwin, op. cit., p. 64.) The State ratifying conventions understood the phraseology to extend the subjects of treaty making beyond the subjects of Congressional legislation. (Corwin, op. cit., p. 66.)

24 See Treaties and the Constitutional Separation of Powers in the United States, this JOURNAL, 12:64.


The Constitution provides that 25 "powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” From this it has been argued that the treaty-making power only embraces matters specifically delegated by the Constitution to the national government, all other matters being within the field of (a) states' rights,” (b) “reserved powers," or (c) “residual powers." 26

25 Amendment X.

26 Three distinct theories of State powers as opposed to the treaty power can be distinguished: (1) The States as “quasi-sovereign" entities enjoy certain "natural" States rights which can not be alienated without entire sacrifice of State autonomy and the federal theory of the Constitution. (2) By implication of the Constitution, certain powers have been reserved by the States and excluded from all interference by national organs. "It (the Constitution) must have meant to except out of this, the rights reserved to the States: for surely the President and Senate can not do by treaty what the whole government is interdicted from doing, in any way." (Jefferson, "Manual of Parliamentary Practice," sec. 52.) The ambiguous second clause must be interpreted with reference to the first clause, as referring to the President, Senate and House of Representatives acting as the legislative power. Most of the "interdictions” really applying to "the whole government” are in defense of individual rights, and clearly are not powers “reserved” to the States, though it is true that the guaranties of individual rights in the first eight amendments were in a sense reservations made by the States in behalf of their citizens, as against the national government. (See Boutmy, “Studies in Constitutional Law," London, 1891, p. 63.) (3) All residual powers, or powers not specifically delegated to the national government, are exempt from interference by the treaty power. This theory excludes the treaty power itself from the delegations of power. Considered thus, it becomes merely a method of exercising these powers. “The treatymaking power, under this Constitution, can never be any other than subsidiaryis never a power independent in its vocation, however it is so in its name and structure. It is the handmaid-waits on the occasion of the other powers; and though in no posture to receive orders from them, it never yet moves to its exertion, save in subordination to their desires." (Report of Senate Committee, 1845, 56th Cong. 2nd Sess., Sen. Doc. No., 231, 6: 82.) For these distinctions see Corwin, op. cit., p. 121. While the scope or extensity of exclusive State powers becomes greater in the third and in the second or first theories, their inalienability, or intensity, become less. The residual theory appears to most limit the treaty power, yet by a liberal interpretation of delegated powers, it can be indefinitely extended, while the States' rights theory, although

(A) A "states' right” most frequently admitted to limit the treaty power is that to the integrity of territory.27 In Washington's Cabinet, Jefferson maintained that “the United States had no right to alienate an inch of the territory of any State,” while Hamilton took the opposite view.28 While admission of the supremacy of treaties granting Indian tribes an exclusive right in reservations within the States 29 seems to go far toward admitting the right of the treaty power to alienate State territory, still an actual cession was not here in question, and later practice 30 and opinion 31 have con

apparently imposing few limitations, yet defends these with such tenacity that they may prove insurmountable obstacles. When the first and third theories are united, and all residual powers become inalienable States rights, the situation becomes ominous for the federal government. Where the two theories are compromised, as in the reserved power theory, there is less danger for the existence of the federal government.

27 This right gains additional support from Art. IV, sec. 3, cl. 1, forbidding the formation of a new State "within the jurisdiction of any other State" without the consent of the State legislature. The preservation of a republican form of government, guaranteed by Article IV, sec. 4, might seem a “States' right" of similar character, but the discretionary power assumed by organs of the national government to determine what is a republican form of government seems to cast some doubt on this conclusion. (Texas v. White, 7 Wall. 700.) The implied exemption of State officers from taxation, is also a States' right (Collector v. Day, 11 Wall. 113), though it could hardly be encroached upon by the treaty power. The guarantees of individual rights in Art. I, sec. 9, and the first eight amendments, were in their original intention reserved by the States for individuals as citizens of the States, and so might be called “States' rights." With the passage of the XIII, XIV, and XV Amendments, however, individual guarantees have assumed the character of rights guaranteed to individuals against the national or State governments and so can hardly be considered States' rights. (Boutmy, op. cit., p. 63.) For discussion of the effect of these guaranties on the treaty power, see infra, sec. 2.

28 Extract from Jefferson's Anas, March 11, 1792, Wharton, 2: 66.

29 Worcester v. Ga., 6 Pet. 515 (1832). President Jackson doubted the correctness of this decision and refused to enforce it.

80 By Art. V of the Webster-Ashburton Treaty of 1842, the United States agreed to pay the States of Massachusetts and Maine "three hundred thousand dollars, in equal moities, on account of their assent to the line of boundary described in the treaty.”

31 Dicta in Lattimer v. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 133 U. S. 267 (1890); Insular cases, 182 U. S. 316 (1901); Fort Leavenworth Railroad Co. v. Lowe, 114 U. 8. 525, 541. See Moore, 5: 171-175; Butler, “The Treaty. Making Power,” 1902, 1: 411-413, 2: 238, 287-294; Corwin, op. cit., pp. 130-134.

curred in denying the right of cession without State consent, unless necessary to terminate a war.

(B) Additional “reserved powers" are sometimes grouped together as the police power, but can be distinguished as the power (1) to regulate exclusively land and natural resources; (2) to exercise exclusive control over public services supported by State taxation; and (3) to exercise police power over classes of persons and businesses in behalf of public safety, health, morals and economic welfare. Treaty provisions, guaranteeing to aliens rights of entry, residence, landholding, inheritance, etc., equal to that of citizens or subjects of the most-favored nation,32 have been alleged to conflict with the exercise by the States of these “reserved” powers through laws discriminating against aliens, or aliens of a particular race or nationality (1) in the privilege of owning land,38 operating mines,34 and taking fish 35 and game;36 (2) in the use of public schools 87 and the right to labor on public works ; 38 (3) and in the

82 Art. XI of the treaty of 1778 with France and Art. I of the treaty of 1894 with Japan, superseded by Art. 1 of the treaty of 1911, are examples of this type of provision.

33 Tairfax v. Hunter, 7 Cr. 503; Chirac v. Chirac, 2 Wheat. 259 (1817); Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 646 (1823); Carneal v. Banks, 10 Wheat. 259 (1825); California-Japanese controversy, 1913, Corwin, op. cit., p. 232; editorial, this JOURNAL, 8: 571. Art. VII of the treaty of 1853 with France made concessions to the “States' right.” It allowed Frenchmen to possess land on an equality with citizens "in all the States of the Union where existing laws permit it, so long and to the same extent as the said laws shall remain in force.” As to other States, “the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring the right.”

84 People v. Naglee, 1 Cal. 232 (1850). 85 Griggs, Att. Gen., 1898, 22 Op. 214. 36 Patsone v. Pa., 232 U. S. 138, 145.

37 California-Japanese school children controversy, 1906, Corwin op. cit., p. 217; E. Root, this JOURNAL, 1: 273, editorial, this JOURNAL, 1: 150, 449; Art. IV of the treaty of 1854 with Great Britain indicates that the United States doubted its right to control a State-established utility, without State consent. “The Government of the United States further engages to urge upon the State government to secure to the subjects of Her Britannic Majesty the use of the several State Canals on terms of equality with the inhabitants of the United States."

88 Baker v. Portland, 5 Sawyer 566 (1879); Heim v. McCall, 239 U. S. 175, 193 (1915), this JOURNAL, 10: 162.

freedom of immigration,39 labor, 40 personal habits, *1 and conduct of business.*2 In a few cases dicta damaging to the treaty power have been uttered ; 43 sometimes the treaty has been subjected to a strained interpretation to save the State's power; 44 but in no case has a clear treaty provision been superseded by the State law. On the contrary, State statutes of this character have frequently been declared void when conflicting with clear treaty provisions. With respect to statutes relating to the control of natural resources and State-supported services, the attitude of the courts has been cautious, with a decided tendency in recent cases to compromise by adopting interpretations of the treaty favorable to the State power.46 The question, however, has been on the applicability of the treaty, not upon its validity.

(C) The extreme extension of State power has been put forward in the claim that unlimited discretion in the regulation and taxation of property and inheritances is a “residual” power exempt from interference by the treaty-making power. Treaties of the character mentioned have sometimes conflicted with the alleged exclusive

39 Elkison v. Deliesseline, Leg. Doc. Mass. 1845 (Senate), No. 31, p. 39 (1823); Thayer, Cases in Constitutional Law, p. 1849; Corwin, op. cit., p. 125; Wirt, Att. Gen. 10, p. 661 (1824); Berrien, Att. Gen., 20, p. 431 (1831); The Passenger Cases, 7 How. 283 (1849); In re Ah Fong, 3 Sawyer 144; Henderson v. N. Y. 92 U. S. 259 (1875).

40 In re Tiburcio Parrott, 6 Sawyer 349 (1880); Truax v. Raich, 239 U. S. 33, 43 (1915), this JOURNAL, 10: 158.

41 Ho Ah Kow v. Nunan, 5 Sawyer 532 (1879).

42 Yick Wo v. Hopkins, 118 U. S. 356 (1886); Compagnie Francaise v. State Board of Health, 186 0. S. 380 (1902). Frequently in these cases the XIVth Amendment, as well as treaties, have been in opposition to the exercise of State powers. See also Rocca v. Thompson, 223 U. S. 317 (1912).

13 Taney, C. J., in Holmes v. Jennison, 14 Pet. 540 (1840); The Passenger Cases, 7 How. 283, 465 (1849); Daniels, J., in The License Cases, 5 How. 504, 613; Grier, J., in The Passenger Cases, 7 How. 283 (1849).

44 Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). Rocca v. Thompson, 223 U. S. 317 (1912).

45 Chirac v. Chirac, 2 Wheat. 259 (1817); Elkison v. Deliesseline, supra, note 39; In re Tiburcio Parrott, 6 Sawyer, 349 (1880); Truax v. Raich, 239 U. 8. 33, 43 (1915), this JOURNAL, 10:158.

46 Patsone v. Pa., 232 U. S. 138, 145; Heim v. McCall, 239 U. S. 175, 193 (1916), this JOURNAL, 10: 162.

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