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interstate commerce clause of the constitution.

But it is worthy of notice that there are very few matters which might be regarded as coming within the reserved rights of the states that would furnish the proper subject-matter for negotiation with foreign powers. The relation of a state to its own citizens is of no concern to outside nations, and consequently would not be a fit subject for negotiation. But the treatment of aliens, resident or sojourning in a state, is a matter of great interest to the foreign nation of which such aliens are citizens or subjects. A nation has a right to claim protection for its subjects within the territory of any other country into which they are permitted to enter. it is true that, according to a maxim of international law, a sov

ereign pation has a right to admit or exclude foreigners from its domain, and to prescribe the conditions upon which they are allowed to enter (cf. Moore's Digest, IV. 156). But admission having been granted, such foreigners are entitled to the protection of the laws of the country in which they are resident or sojourning (Ibid, IV. 2). The admission of aliens to this country, therefore, the guaranteeing to them the protection of the laws and the extent of the privileges they may enjoy, seem to be appropriate subjects for treaty negotiations. It is chiefly in respect to this matter relating to the status of aliens that there may arise an apparent conflict between the legislative authority of the states and the treaty-making power of the Federal government.


The definite question is thus presented to us, Whether it is possible for the Federal government to negotiate treaties with foreign powers in respect to the civil capacity of aliens, without en-. croaching upon the constitutional rights of the states. To answer this question it will be necessary to draw more precisely the line which se arates the state and Federal authorities. It may be true, as has been said, that a state has the right to make its own school laws, its own property laws and its own corporation laws. It may also be true that a treaty which contravened such general laws would be held to be unconstitutional. And yet it may not be true that a state possesses the constitutional authority to enact such legislation for the exclusive benefit of one class of persons, and to the detriment of another class subject to the same jurisdiction. It is possible that what are sometimes regarded as the reserved rights of the states may themselves be subject to constitutional limitations. If such limitations exist they must have an important bearing upon the treaty-making power. In other words, the extent that a state is prevented from making an unjust discrimination among those persons subject to its authority and is compelled to grant to all persons subject to its jurisdiction the equal protection of its laws, to that extent would the Federal government have the constitutional right to make a treaty with a foreign power guaranteeing to the subjects of that power protection against such unjust discrimination-which is simply

saying that the Federal government may act in harmony with the provisions of the constitution. Hence а. treaty may legally guarantee the enforcement of all the constitutional limitations imposed upon the states. The fourteenth amendment declares that “no state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States; nor shall

any state deprive any person of life, liberty


property without due process


nor deny to any person within its jurisdiction the equal protection of the laws.” If then the constitution thus guarantees to all persons within the jurisdiction of any state the equal protection of the laws, it is quite evident that the treaty-making power of the United States is authorized to guarantee to the subjects of any foreign power such constitutional protection.

But what is exactly meant by the phrase "equal protection of the laws" is a matter for judicial interpretation. It has yet been held that whatever interpretation may be given to this phrase in its application to citizens is equally applicable to all persons "without regard to any difference of race, color or nationality” (Yo Wick v. Hopkins, 118 U. S. 356). In defining the meaning of this phrase, which is the constitutional guarantee of equal civil rights, the courts have been called upon more often to point out what it does not cover than what it does cover. It is obvious that the equal protection of the laws does not prevent what is





called "special legislation,” as regards territory, objects or even classes of persons. It does not prevent discriminttion as regards territory, since legislation may apply to one part of the state and not to another, for instance to large cities and not to small cities or villages, to some rivers and not to others. Again, this constitutional guarantee does not prevent discrimination as regards certain objects or forms of business; for instance, special laws may relate to railway corporations, to trust companies, to the selling of liquors, to the manufacture of explosives, etc. Moreover, this guarantee does not prevent discrimination even as regards certain classes of persons, as is evident in the special laws relating to the qualifications of lawyers, physicians and pharmacists. The Supreme court has held that “The XIVth amendment does not prohibit legislation limited as to object or to territory, but merely that all persons shall be treated alike under like circumstances and conditions" (Hayes v. Missouri, 120 U. S. 68). And again, "Whenever the law operates alike upon all persons and property similarly situated, equal protection cannot said to be denied (Walston v. Nevin, 128 U. S., 578). And still further, “Special legislation is not obnoxious to the XIVth Amendment if persons subject to it are treated alike" (Mo. Pac. R. R. Co. v. Mackey, 127, U. S., 205).

But the Supreme court has gone even farther than this in limiting the application of the phrase "equal protection of the laws.” It has justified, for example, the segregation of colored people in separate railway coaches. It was held “that a state statute providing for separate railway carriages for the white and colored races, and the assignment of

passengers to the coaches according to their race by the conductors, does not deprive a colored person of any rights under the XIVth Amendment (Plessy V. Ferguson, 163 U. S., 537). In this case it will be noticed that

discrimination is based solely upon race, but is justified on the

ground that similar privileges of conveyance were granted to both races. But perhaps the extreme instance of discrimination held not to be inconsistent with the equality clause of the constitution, was the case of a board of education in the South, which made a distinction based solely upon race, without granting similar privileges to both races. In this case the court gave its opinion as follows: “The maintenance by a board of education of a high school for white children,

while failing to provide

for colored children, for the that the funds

not sufficient to maintain it in addition to the primary schools for colored children, does not constitute a denial to colored persons of the equal protection of the laws or the equal privileges of the citizens of the United States" (Cummings v. County Board of Education, 175 U. S., 528). In this instance the dis. crimination was justified on the ground that it was necessary and unavoidable. But where the discrimination is arbitrary and has no basis in necessity or public policy, the decision is different, as appears in the following well-known case. A city ordinance of San Francisco, professing to regulate the laundry business So as to prevent the danger from fires, and giving to the county board of supervisors arbitrary power and discretion to issue licenses, whereby the board could, and actually did, make discriminations against the Chinese-was held tu be unconstitution. al as not affording equal protection of the laws. (Yick Wo V. Hopkins, 118 U. S. 356) It was in this case that the court used these words regarding the equality provisions of the XIVth amendment: “These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to race, color or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”

From these opinions it seems evident that the so-called "reserved rights” of the states to legislate, are limited by the constitutional guarantee of equal protection under the laws,but only to the extent and in the sense that that phrase has been interpreted by the Supreme court. It also seems quite as evident that so far as the states possess the constitutional power to make discriminations as to their own citizens, the Federal government has no power by treaty to prevent such discriminations in respect to aliens. On the other hand, a treaty made by the United States with a foreign power, guaranteeing to that power the equal protection of our laws, is valid in the sense that that phrase has received judicial interpretation. Hence the conclusion seems clear that the relative superiority of a state statute and it Federal treaty is determined solely by reference to the constitution, that neither is necessarily superior to the other, since the validity of both rests upon their conformity to the fundamental law of the land.





It is not the purpose of this discussion to attempt to apply these principles to the recent condition of things in the state of California, but simply to illustrate in a general way the scope and limitations of the treaty-making power growing out of our dual system of government. It might be proper, however, to assume a hypothetical state of facts, suggested by the California incident, to indicate the direful consequences which, in the minds of some persons, might arise from thus placing a Federal treaty upon the same constitutional basis as a state statute. These fears have no doubt been suggested to many during the recent negotiations between the authorities at Washington, and those at Sacramento. As these apprehensions are not entirely groundless, it may be worth while to consider briefly the reasons upon which they are based.

It has been assumed and apparently supported by judicial opinions that the Federal government can afford no further or efficient protection to aliens than a state government is compelled to grant to its own citizens. It has been shown that the segregation of colored children in separate schools in the South is not a denial of equal protection to citizens of the United States. If this be true, it may be assumed that the segregation of Japanese children in separate schools in California is not a denial of equal protection 10 persons within the jurisdiction of that state. Whether such a segregation would be in accord with the soundest public policy would be a question to be settled primarily by the legislature of the state, and not by the treaty-making power of the Federal

government. Within the limits of its constitutional authority, a state may enact any law according to its own notions of public policy, and is not legally bound by the demands of public policy as conceived by other states, or by the nation at large. Under ordinary circumstances there might arise no serious results from this independent exercise of state power. If, however, a state in carrying out its own ideas of public policy, should not only disregard the national judgment, but should endanger the interests of the nation at large, or should involve the whole country in international complications, then might arise consequences that would put to a severe test one's faith in federal institutions. We have already had sufficient evidence that, it is possible for an indiwidual state to enact laws in respect to

aliens which are likely to give offense to a foreign power. The sensitiveness of a foreign people is not allayed by the fact that our system of government is federative and not unitary. The odious laws lose none of their offensiveness because made by a state legislature rather than by the Federal government. If such state legislation is justified by our fundamental law, it is stamped with the sovereign authority of the entire nation. It thus seems possible for the legislature of a single state to determine the international relations of the country at large.

But more serious consequences than this may be suggested to the imagination of timid alarmists. Assuming that the discrimination made by state against aliens is evidently inspired by race prejudice and is obnoxious in its form, it is not difficult to suppose that such offensive discrimination might be regarded as an affront demanding satisfaction. If the offended power should attempt to hold liable the state authorities directly responsible for the offensive act, it would be the duty of the Federal government to interfere and prevent such direct demands, on the ground that the Federal government only was the proper medium of international communication. If the foreign power should then address itself to the Federal executive as the proper agent of communication, the United States government might be compelled to make the humiliating plea that the obnoxious act in question was not approved by the president, was not approved by congress nor by the mass of the American people; that it was merely the local act of an individual state, and that it would be manifestly unjust to hold the American nation responsible for what the American nation disavowed.

But the embarrassing dilemma in which the country was likely to .placed might not end here. Failing to obtain satisfaction from the state government, with which it could hold no direct relations, and also from the Federal government, which refused to put its approval upon the offensive law, the foreign power might regard the situation serious enough to justify an appeal to arms. The hostilities would be likely to begin with a threatened invasion of the territory of the state, responsible for the obnoxious act, if that territory were exposed to an attack. Under these conditions, the state that had asserted its independence of the public opinion of the nation and


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This picture of the disastrous consequences that might arise under certain extreme conditions may suggest to some persons the conclusion that the treatymaking power should be subject to no restrictions whatever in determining the status .of aliens-that the fixing of this status, having such an important international significance should withdrawn from the jurisdiction of the states, and placed exclusively in the hands of that Federal authority which has control of our foreign relations. This view may appear to have some superficial justification. But to the thoughtful American it may seem pertinent query whether the spectre of an imaginary war should disturb our faith in our present constitution and the distribution of political powers already established. A people would hardly be worthy of its claims to sovereignty did it hesitate to defend, by arms if necessary, the integrity of its own political system. No sophistry should blind our eyes to the duty of the nation at large of maintaining the federal principle upon which our whole political fabric rests, and of protecting, even against foreign encroachments, the inherent and exclusive right of a state to legislate upon matters guaranteed to it by the fundamental law

of the land. The right of local self-government is one of our choicest possessions. The hypothesis of a possibie war has, therefore, no relevancy whatever, except so far as it may suggest the question as to whether those matters which are likely to come within the field of international negotiation, and which might possibly lead to international hostilities, do not at present come sufficiently within the scope of Federal jurisdiction.

We must never forget that in this country there is a law superior to state enactments and Federal treaties—a law by which the legality of state enactments and the legality of Federal treaties are alike determined,-and that law is the constitution of the United

States as interpreted by the Federal judiciary. It is no doubt true that the right to legislate regarding the status of aliens belongs primarily to the states. So far as such legislation does not transcend the limits fixed by the constitution, it cannot be invalidated by any Federal authority. It cannot be set aside by an act of congress or by the treaty-making power. If within the reserved rights of the states, guaranteed by the constitution, such state legislation is not void because it may be inconsistent with a previous congressional statute or with a previous Federal treaty. But whether or not such legislation is within the reserved rights of the state and authorized by the constitution can be finally determined only by the Federal judiciary. The Federal courts, therefore, have the supreme jurisdiction in deterinining the constitutionality of any state law or Federal treaty in respect to the status of aliens as well as other matters. It thus appears evident that that distinctive matter of state legislation which is most likely to involve international complications is already within the sphere of Federal jurisdiction.

If we should presume to go a step farther and point out the special kind of state legislation in respect to aliens that would be most likely to give offense to foreign powers, we might be able to see how the Federal judiciary -quite as effectively as the treatymaking power-might prevent international hostilities, and protect the nation at large from the unwise policy of a particular state. The chief ground of complaint that a foreign nation is likely to make against the act of an individual state is, not that aliens are not given a greater degree of protection than citizens, but that prejudicial discriminations are made against aliens as such. When the subjects of a foreign power are deprived of the equal protection of the laws solely on count of their nationality, the offense is not simply against the individual, aliens, but against the nation of whiğin




they are the subjects. Against such

an invidious distinction foreign power could fail to protest. But it is precisely against such a discrimination as this that the Federal judiciary would be competent to set its authority. Such a decision would be made, however, not on the ground that it was inconsistent with any existing treaty, but solely on the ground that it was inconsistent with the provision of the Constitution guaranteeing the equal protection of the laws to all persons within the jurisdiction of any state. We have seen that this constitutional guarantee has already been interpreted by the courts so as to prevent any arbitrary distinction based solely upon race or nationality. It is hence possible for the Supreme Court of the United States to nullify the invidious features of

any state law in respect to aliens. The Federal judiciary may thus be considered, not only as the guardian of the Constitution, and the protector of all American citizens from unjust legislation, but, in a certain sense, the supreme arbiter in determining the justice of the treaty claims made by a foreign power in respect to the treatment of its subjects by an American state.

This discussion has been restricted to the relation of state legislation to Federal treaties, and hence has taken no account of the relation of the state courts to the Federal judiciary in the enforcement of treaty obligations, especially in the protection of aliens from mob violence-a subject perhaps quite as important as that which we have considered, and one that suggests certain existing defects, which can be remedied only by a congressional stat

ute making such acts of violence a Federal offense subject to Federal jurisdiction, instead of leaving them as at present to the jurisdiction of the local courts. (For this subject, see Proceedings of the American Society of International Law, 1908).

We may conclude that our present federal system is entirely adequate to meet the dangers arising from any apparent conflict between a treaty and a state law. The Constitution itself is the ultimate and only standard by which the validity of a state law as well as that of a treaty must be determined. There cannot, therefore, in the nature of our constitutional system, be any legal antagonism between the treaty-making power of the Federal government and the legislative authority of a state. They are, in fact, the Co-ordinate and harmonious functions of one body-politic. Any apparent conflict between them is due to a misconception of their proper relations, either on the part of the Federal government or on the part of the state authorities. And such a misconception need not long exist, since the legitimate province of both is capable of being determined by a supreme judicial tribunal. The united sovereignty of the nation is not destroyed by the distribution of its powers. That sovereignty remains undiminished in spite of the delegation of certain powers to the Federal government and the reservation of certain powers to the states; and is capable of meeting all the complex demands of new experience, either by a liberal interpretation of its fundamental law, or as a last resort by an amendment to the Constitution itself.


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