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THE TREATY-MAKING POWER

And the Legislative Authority of the States.

-BY

WILLIAM C. MOREY, D. C. L.
Professor of History and Political Science,

University of Rochester,

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There have been in the history of our country many important and interesting questions arising from our dual system of government-questions often of a perplexing nature to where should be drawn the dividing line between the delegated powers of the Federal government and the reserved powers of the states. The discussions and strife growing out of these questions 'have in fact furnished the most decisive issues in our political history. They were among the most conspicuous features of the convention of 1787, which framed the Federal constitution. They have in large part determined the line of cleavage between the great political parties. They have also led to a wide diversity of views as to the proper policy of the Federal government in matters relating to the protective tariff, the national bank, public

improvements, the extension of slavery, the reconstruction of the Union, the management of corporations, and the extension and control of our public domain. Yet in spite of these conflicts of opinion, the development of “federalism” as a permanent and efficient system of government has been one of the greatest achievements of the American people. The creation of a central government for the supreme control of general interests, while reserving to the states the supreme control of all matters of local interest, forms

the distinctive feature of this political system. But the working out of the details of this system, the broad outlines of which are drawn in the Federal constitution, has required the greatest wisdom and skill on the part alike of the executive, the legislature and the judiciary.

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The most important problem now before the American people growing out of our dual system of government, is no doubt that which has to do with the relation between the treaty-making power of the Federal government and the legislative authority of the states. The recent disposition of the state of California to enact discriminating laws against the Japanese, in apparent disregard of the treaty obligations existing between the United States and Japan, gives to this subject a present and unusual interest, The city of San Francisco has threatened to segregate

the children of Japanese parents in separate schools, although this act might involve the United States in a controversy with Japan, whose government has protested against such racial discrimination. This city has claimed the right, under its charter granted by the state, to organize and manage its own school system, without interference on the part of the Federal government, and without regard to any international complications that might ensue. So, too, the state

California has recently proposed, under : the re. served powers of the : state, to

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enact certain corporation and land laws, even though such laws might involve the civil disability of aliens, who are guaranteed certain rights by the treaty-making power of the Federal government.

Such a condition of things naturally excites in the mind of every thoughtful American the query whether it is in accord with the principles of our system of government that a single municipality or a single state should possess the power practically to nullify the treaty obligations entered into between the Federal government and foreign nations. It is an accepted doctrine of international law that the particular form of government adopted by any nation is of no concern to other powers-whether such government be monarchical or republican, absolute or constitutional, federative or unitary, provided only that it possesses the attributes of sovereignty and thereby has the power to fulfill its international obligations. Upon this principle are based the chief_conditions upon which a new state is admitted to the family of nations. Such a state must possess sovereign power within itself, and a government with sufficient authority over its subjects to enable it to fulfill its duties toward other states.

This principle was evidently in the minds of the framers of our Constitution when in the division of political powers between the Federal government and the States, they professedly delegated to the Federal government all the power necessary to establish and maintain treaty relations with foreign countries. To the President with the concurrence of the senate was given the power to make treaties (U. S. Const. Art. II, sec. 2). To congress was given the power to regulate commerce with foreign nations, and to define and punish offenses against the law of nations (Art. II, sec. 8). To the Federal judiciary was given jurisdiction over all cases arising under treaties made under the authority of the United States (Art. III, Sec. 2.) Such treaties, moreover, were declared to be a part of the supreme law of the land, the judges in each state being bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding

(Art. VI.) And finally it was declared that no state should enter into any treaty, alliance or confederation (Art. I, Sec. 10).

It would thus seem evident that plenary authority with reference to all international relations was taken away from the states and conferred upon the Federal government-that the president and senate might establish any treaty relations with foreign nations that they might deem for the best interests of the country, and that the Federal judiciary had received sufficient power to enforce the obligations fixel by such treaties. And this opinion might find support in the general statements of professional writers. Judge McClain, in his treatise on Constitutional law, says: “The treaty-making power is practically without limit, so far as it is exercised with reference to matters which may be regulated by treaty, and it extends to all proper subjects of negotiation between our government and the government of foreign nations" (Const. Law in the U. S. p. 216). Again this author says: “The provisions of a treaty which it is in the power of the Federal government to make, will be superior to any state statute relating to the same subject-matter," (Ibid. p. 216). The Supreme court, moreover, has declared that the Constitution of the United States confers absolutely on the government of the United States, the power of making war and of making treaties” (American Insurance Co. v. Canter, 1 Peters 542). And again, "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 and that of

the

states (Leavenworth R: R. Co. V. Lowe, 115 U. S, 525,541). “But with these exceptions,' the court declares, “it is not perceived that there is any limit to the questions that can be adjusted touching any matter which is properly the subject of negotiation with а. foreign country's (Ware v. Hylton, 3 Dallas 199, with other citations in Moore's Digest of International Law, vol. V. 166).

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treaty-making power is subject to any constitutional limits whatever, it cannot be said to be "absolute" in the proper sense of the word. That there are such limitations is unquestioned. It is quite evident, for example, that when the constitution guarantees to every state a republican form of government, a treaty which tended to de. stroy such a form of government would be invalid. It would be absurd to suppose that the president and the senate could destroy the constitution itself, or the powers granted by the constitution to the other branches of the government or those reserved to the states. To illustrate: “Congress has under the constitution the right to lay taxes and imposts as well as to regulate foreign trade. But the president and the senate, if the treaty-making power be regarded as absolute, would be able to evade this limitation by adopting treaties which would compel congress to destroy its whole tariff system. According to the constitution, congress has the right to determine questions of naturalization, of patents and of copyright. Yet the president and the senate, by a treaty, could on these important questions utterly destroy the legislative capacity of the house of representatives. The constitution gives congress the control of the army. Participation in this control would be snatched from the house of representatives by a treaty with a foreign power by which the United States would bind itself to keep in the field an army of a particular size" (cf, Moore's Digest, V. 170).

That the treaty-making power, no less than the legislative power, is subject to constitutional limitations, is a principle accepted both by the state department and by the Federal judiciary. Mr. Blaine, in a diplomatic note to a foreign minister says that a treaty no less than a statute law "must be made in conformity to the constitution, and where a provision of a treaty or a statute is found to controvene the principles of the constitution, such provision must give way to the superior force of the constitution, which is the organic law of the Republic, binding alike on the government and the nation” (Moore's Digest, V. 169). The opinion of the Supreme court is given as follows: "That a treaty is no more the supreme law of the land than is an act of congress, is shown by the fact that an act of congress vacates pro tanto a prior inconsistent treaty. Whenever, therefore, "continued the court,' an act of congress would be unconstitutional

as invading the reserved rights of the states, a treaty to the same effect would be unconstitutional” (Prevost v. Greneaux, 19 Howard 7). The question, therefore, as to whether the treatymaking power can create legal obligations inconsistent with the provisions of the constitution, or with the powers granted to the co-ordinate branches of the government is a question not open for discussion. And it is no longer a mooted question whether a treaty can infringe upon the reserved rights of the states, for the supreme judicial authority of the United States has decided that such a treaty, no less than a statute law, would be unconstitutional and of no binding force.

The extent of these reserved powers of the states, which may not be invad. ed either by a congressional statute. or a Federal treaty, is broadly defined in the organic law of the land. The constitution declares that “the powers not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people” (Amendment X). That document has nowhere delegated to the Federal government the power, for example, to regulate the school system of any state, or to determine the civil capacity of persons to hold property or to make contracts, nor has it prohibited to the states the power to determine the con. ditions upon which corporations may be formed, or the qualifications necessary for their membership. These are evidently among the reserved powers guaranteed to the states. If this is true, then a city, under its charter granted by the state, would have prima facie a perfectly legal right to organize its own school system and to establish rules for its supervision. A state likewise, would have the same legal right to establish its own rules regarding the holding of landed property and the organization of corporations. Moreover, any treaty with a foreign power which contravened such reserved rights of the states would be unconstitutional and of no binding force. These general deductions seem to be in accord not only with the opinions of the Federal judiciary, but with the practice of the Federal executive and legislature. It may be safely asserted that neither the president nor congress has ever presumed to exercise legal supervision over the school system of any state; or over the laws relating to the holding of land, not belonging to the Federal government, within the jurisdiction of any state; or even

the corporation laws, when not inconsistent with the..

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