Manual of Parliamentary Practice:

By the Constitution of the United States, this department of legislation is confined to two branches only, of the ordinary legislature; the President originating and the Senate having a negative. To what subject this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) by the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. (4) And also to except these subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others.24

As the final sentence may imply, Jefferson was no friend of the treaty power.25 Indeed, the limitations he enumerates leave little room for treaties. Under his final clause, a treaty cannot deal with matters which are within the enumerated powers of Congress. By the third limitation, the treaty power cannot deal with matters reserved to the states-presumably, those not expressly conferred upon the national government or some branch of it, principally upon Congress by the eighth section of article I.26 If a treaty can deal either with matters designated to Congress, nor with matters not delegated to Congress, it can deal with very little.27

29

These clauses in Jefferson's manual have long been famous examples of his bad guesses, and notable evidence that ours has not become a Jeffersonian Constitution. Everyone today agrees that a treaty can deal with matters on which Congress may legislate.28 Under contemporary views of the powers of Congress, this excludes very little. Indeed, I have suggested that there is practically nothing that is dealt with by treaty that could not also be the subject of legislation by Congress. In practice, the treaty makers have frequently concluded agreements dealing with matters concerning which Congress could also legislate, such as tariffs and other regulations of commerce with foreign nations. Also, treaties have frequently dealt with matters which, apart from treaty, seemed reserved to the states: for example, the rights of aliens to inherit property 30 or to engage in local occupations. Almost half a century ago, Mr. Justice Holmes, in Missouri v. Holland, 31 settled that, since the treaty power was delegated to the federal

24 T. Jefferson, Manual of Parliamentary Practice 110 (1876), quoted in 5 J. Moore, Digest of International Law 162 (1906). See also the remarks of John Calhoun made in 1816, recorded in 29 Debates and Proceedings in the Congress of the United States 532 (1854). 25 In 2 J. Story, Commentaries on the Constitution of the United States 339 n.3 (5th ed. 1891), Joseph Story said:

Mr. Jefferson seems at one time to have thought that the Constitution only meant to authorize the President and Senate to carry into effect, by way of treaty, any power they might constitutionally exercise. At the same time, he admits that he was sensible of the weak points of this position. 4 Jefferson's Corresp. 498. What are such powers given to the President and Senate? Could they make appointments by treaty? 20 This is the common interpretation of Jefferson's dictum. Of course, if one recognizes that the treaty power is one of the powers delegated to the federal government, and that what comes within it is therefore not reserved to the states, one could accept Jefferson's statement to mean that there may be some special areas reserved to the states even as regards the treaty power, for example, that a treaty cannot cede territory of a state without its consent. See text accompanying note 37 infra.

27 Presumably it could deal with matters which are in the President's domain under the Constitution.

28 See Q. Wright, the Control of American Foreign Relations § 59 (1922). The Supreme Court itself never gave any encouragement to the view that treaties cannot deal with matters that are within the powers delegated to Congress. On the contrary, it has always insisted that a treaty and statute might deal with the same matter, and that, for example, if the two were inconsistent the later in time would prevail. E.g., Whitney v. Robertson, 124 U.S. 190 (1888); see Arms Control 29-31, 173-76 nn.20-23.

29 See Law of the Land 913-30. Since that was written the Supreme Court has found additional powers of Congress in the enforcement clause of the fourteenth amendment. See Katzenbach v. Morgan, 384 U.S. 641 (1966). See also United States v. Guest, 383 U.S. 745 (1966).

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 Zschering v. Miller, 389 U.S. 429 (1968).

31 252 U.S. 416, 433 (1920). Contrary to some impressions, Holmes was not making new law. Arms Control 33-34, 176 n.25.

34

ment, what is within that power is not reserved to the states.32 Treaties, are not limited by any "invisible radiation" 33 from the truism that is the amendment. Because Missouri v. Holland finally disposed of Jefferson's limitation, Senator Bricker sought to have the Constitution amended to l" that case. The decision has never been questioned in the Supreme Court, enator Bricker's abortive attempts only reaffirmed its continuing validity. onents of American adherence to human rights conventions cannot, and t, invoke the long-rejected Jeffersonian limitations just discussed.35 While related to these propositions, their arguments are essentially closer to Jef's first two limitations-that a treaty "must concern the foreign nation," hat it must deal with "objects which are usually regulated by treaty, and t be otherwise regulated." These limitations, perhaps, are also implied in the ions that treaties cannot deal with matters that are "of domestic concern" tters "essentially within the domestic jurisdiction of the United States." e fact that two of Jefferson's four contentions have been clearly rejected er interpretations of the Constitution might be enough to dismiss him as thority on the scope of the treaty power today. Still, all his suggestions re consideration on their merits, and Jefferson's first two limitations have ort in other authority, including some in the United States Reports. the Supreme Court, the best known statement of implied limitations on the y 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 xcept by those restraints which are found in that instrument against he action of the government or of its departments, and those arising from he nature of the government itself and of that of the States. It would not e contended that it extends so far as to authorize what the Constitution orbids, or a change in the character of the government or in that of one of he States, or a cession of any portion of the territory of the latter, without ts consent. But with these exceptions, it is not perceived that there s any limit to the questions which can be adjusted touching any matter vhich is properly the subject of negotiation with a foreign country.

36

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

99 38

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

11 those objects which in the intercourse of nations, had usually been regarded e proper subject of negotiation and treaty ;'

.99 39

11 proper subjects of negotiation between our government and other na5;"

. 40

11 subjects that properly pertain to our foreign relations." 11

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

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

Some of them, at least, would be particularly reluctant to claim that human rights are ved to the Congress. Like Senator Bricker, they might insist that Congress could not with them either. But see Civil Rights Act of 1964, 78 Stat. 241-68 (1964), 28 U.S.C. 47 (d) (1964), 42 U.S.C. §§ 1971, 1975a-1975d, 2000a-2000h-6 (1964); cases cited 29 supra.

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

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

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

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

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

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

Noteworthy for its echoes of Jefferson is Chief Justice Taney's statement in Holmes v. Jennison: 42

43

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." 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 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).

48

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 meeting of Taney's dictium, 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

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

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 rega.ded as the proper subjects of negotiations and treaty, if not inconsistent with the nature of our government 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 Congess 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).

47 See Q. Wright, The Control of American Foreign Relations § 59 (1922).

48 See Law of the Land 921 n.41 and text accompanying.

43 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).

aken seriously, would human rights be a new subject of international nego ? Are human rights a subject different from the traditional rights of ? Or are the asserted objects of human rights covenants, friendly relations ternational peace, as old as treaties?

such a limitation cannot be taken seriously. Why in law, logic, or good should the United States be barred from negotiating about new subjects, · objectives not "usually" regulated by treaty? Justice Taney's ambiguous is particularly troubling. If the implication is that the United States can y treaty only with matters that "had usually been" dealt with by treaty 1787, it is patently unacceptable. There is as little, or less, reason for limthe treaty power to those matters about which nations negotiated in the enth century as there is for limiting the commerce power or the war powers needs of that era. In fact, the United States has negotiated treaties about ets, and for objects, that were not dreamed of by the constitutional fathers y Taney), including the Charter of the United Nations and the Nuclear Ban Treaty.

ferson's assertion might mean that the United States cannot negotiate a new of treaty. It would not prevent the United States from entering into a treaty xind it has never negotiated, after other nations "had" begun “usually" to iate about it. Such a constitutional doctrine makes little sense for the ry we have become,51 but it would not, in fact, bar the United States from iating with other nations on human rights; nations have been "usually" ating human rights by treaty at least since the "minorities treaties” of a entury ago, in the UN Charter, in the various regional human rights arments now in effect, and in the human rights covenants that have been · negotiation for almost twenty years under the auspices of the United

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

s:

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 re'ates 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 Dower to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the ocal jurisdictions of the States, then I again say there might be ground for implying a limitation upon the treaty-making power that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treaty-making power. ughes' remarks were extemporaneous, perhaps even impromptu, not a care- prepared statement of constitutional doctrine." He was setting forth the -s which lay behind the position of the American Delegation (led by Hughes) e Sixth International Conference of American States-that the United States ld not join" in a treaty to establish uniform principles of private interna

53

'We must consider what this country has become in deciding what that [Tenth] dment has reserved." Missouri v. Holland, 252 U.S. 416, 433 (1920).

See text accompanying notes 10-11 supra.

23 Proc. Am. Sec'y Int'l L. 194, 195-96 (1929).

He spoke in response to urging from the floor that he express his views. Id. at 193.

55

tional law, a position challenged by some leading international lawyers. A year earlier, in the same forum, Hughes had attempted to justify this position on grounds that smacked of "reserved rights of states," and seemed not to take full account of Missouri v. Holland. The 1929 remarks quoted above still retained tenth amendment undertones which the Court that decided Missouri v. Holland might have rejected. The new emphasis on "international concern" and "relation to foreign affairs" might also be suspect if these phrases were interpreted to preclude American adherence to a code of private international law.59

58

Still, whatever the origins or context of Hughes' statement, its principal elements have been commonly accepted as sound constitutional doctrine. 'The Restatement on the Law of American Foreign Relations has made Hughes' doctrine (if not Jefferson's) "black letter law." Students are now taught that a treaty would be invalid not only if it were inconsistent with the Bill of Rights or other provisions of the Constitution, but also if it dealt with a matter which was not of "international concern." There has been less agreement on what this limitation II

means.

Whatever Hughes had in mind, the scope of the constitutional limitation be proposed must drive from its constitutional underpinnings and rationale. The doctrine is commonly described as requiring that treaties deal with matters of "international concern." There might have been less confusion if the doctrine had been put forth as a requirement that treaties bear a "relation to American foreign affairs," another phrase which Hughes employed. Whatever phrase is used, the implied constitutional limitation derives from the view that the treaty power is a foreign relations power, and means that treaties must have a foreign relations purpose.

61

55 In view of our system of government in the United States, with our fortyeight states and our federal government of limited powers, the United States could not join in this action, but it viewed with sympathetic interest the efforts of the other American states to obtain legislative uniformity.

Hughes, The Outlook for Pan Americanism-Some Observations on the Sixth International Conference of American States, 22 Proc. Am. Soc'y Int'l L. 1, 12 (1928). His comments in subsequent discussion suggest that in his view the United States could not adhere to the Bustamante Code because of a combination of constitutional and political obstacles. Id. at 61-62.

The official declaration of the American delegation stated in part:

The Delegation of the United States of America regrets very much that it is unable at the present time to approve the Code of Dr. Bustamante, as in view of the Constitution of the United States of America, the relations among the states members of the Union and the powers and functions of the Federal Government, it finds it very difficult to do so.

Pan American Union, Treaties and Conventions signed at the Sixth International Conference of American States 36, 69 (1950).

56 For example, Pro.essor Manley O. Hudson. 22 Proc. Am. Soc'y Intl L. 60 (1928), and Charles H. Butler, 23 Proc. Am. Soc'y Int'l L. (1929).

57 22 Proc. Am. Soc'y Int'l L. 61-62 (1928); see Hudson's remarks, id. at 60. It is clear that there was, at that time. a lag in the State Department s appreciation of the implications of Missouri v. Holland. See note 32 supra and note 63 infra.

58 E.g., Hughes' statement: "But if we attempted to use the treaty making power to control matters which normally and appropriately were within the local jurisdiction of the States. 23 Proc. Am. Socy Intl L. 196 (1929).

59 In further discussions of the Bustamante Code on private international law during the 1929 Proceedings of the American Society of International Law, Hughes admitted that "doubtless there were many matters considered which were not entirely of local concern," and he recognized, in general, that there may be concerns "which perhaps under former conditions had been entirely local, [but which] had become so related to international matters that an international regulation could not appropriately succeed without embracing the local affairs as well.' 23 Proc. Am. Soc'y Int'l L. 195 (1929). But he implied that some aspects of the conflicts enterprise might be of strictly local interest, and that merely to achieve uniformity of practice within different nations might not be a proper subject of a treaty. Id. But see note 63 infra.

60 Restatement (Second) of Foreign Relations Law § 117 (1965). I have assumed that Jeffersons statement and Hughes' are generally equivalent. If there is any difference between the requirement that a treaty "concern the other party" and that it be of "international concern," the difference does not seem relevant for our purpose. Suggestions that there are relevant differences between "international concern" and "multi-national concern" are not persuasive. If, as I believe, the justification for any "international concern limitation derives from the purpose of the treaty power, the real test should be whether a treaty is entered into as an act of foreign policy in pursuance of American foreign relations. See note 61 infra.

61 When Hughes sroke of this question after he became Chief Justice he spoke of "all subjects that properly pertain to our foreign relations." Santovincenzo v. Egan, 284 U.S. 30, 40 (1931).