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In the Supreme Court, the best known statement of implied limitations on the treaty 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 ex 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 itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.
But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. 86
Mr. Justice Field does not expound what restraints arise "from the nature of the government itself and of that of the States.” It may be that these restraints consist only of those he specifes, for example, that a treaty cannot cede territory of a state without its consent. 87 But some additional limitation may be implied in his suggestion that treaties can deal with "any matter which is properly the subject of negotiations with a foreign country." 88
In other cases, too, there are dicta that treaties may deal with:
"all those objects which in the intercourse of nations, had usually been regarded as the proper subject of negotiation and treaty;"
"all proper subjects of negotiation between our government and other nations;" 10
"all subjects that properly pertain to our foreign relations." 41
Noteworthy for its echoes of Jefferson is Chief Justice Taney's statement in Holmes v. Jennison:
38 133 U.S. 258, 267 (1890).
37 Some even question this limitation. See Arms CONTROL 177 n.30. Other limitations suggested would bar the use of a treaty to abolish a state's militia or destroy its republican form of government. Id. at 34-36, 60-61.
38 Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (emphasis added). The same implication night lie in an earlier sentence in the opinion, where the Court stated: "That the treaty power of the United States extends to all proper subjects of negotiation between our governinent and the governments of other nations, is clear." Id. at 266.
99 Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872).
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 withi the nature of our instit ns, 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 liad 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 juclicial statements any content, it is not unreasonable to suggest that they might support propositions akin to Jefferson's first two clauses.
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, 40 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
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 regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our governmenut and the relation between the States and the United States." Id. (footnote oniittel). 1f Clifford intended to modify Taney, liis statement miglit be read inore broadly--a treaty may deal not merely with matters about which nations had negotiated, but also with those they considered proper for negotiation.
4+ But of. Power Authority v. IiPC, 247 F.2d 538 (D.C. Cir.), vacated as moot, sub num. 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.
16 Early in our history some treaties were rejected because the subject matter was within the domain of Congress and therefore, it was thought, not within the treaty power. See ARMS CONTROL 172 n.14.
16 Calhoun, tou, 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).
presumably be carried out unilaterally by internal legislation. In practice, the United States has always regulated by treaty those matters which it might have regulatul, and did regulate, ly legislation as well-the rights of aliens, tariffs, trade, extra lition, consular atfairs. 47 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).
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
." 18 Again, the meaning of Taney's dictum, as well as that of Jefferson, is not entirely clear. We do not know whether Jefferson's "matters," or Taney's “subjects,” 60 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 were taken seriously, would human rights be a new subject of international negotiation ? Are human rights a subject different from the traditional rights of aliens? Or are the asserted objects of human rights covenants, friendly relations and international peace, as old as treaties?
But such a limitation cannot be taken seriously. Why in law, logic, or good sense, should the United States be barred from negotiating about new subjects, or for objectives not "usually" regulated by treaty? Justice Taney's ambiguous tense is particularly troubling. If the implication is that the United States can deal by treaty only with matters that "had usually been" dealt with by treaty before 1787, it is patently unacceptable. There is as little, or less, reason for limiting the treaty power to those matters about which nations negotiated in the eighteenth century as there is for limiting the conuerce power or the war powers to the needs of that era. In fact, the United States has negotiated treaties about subjects, and for objects, that were not
47 See Q. Wright, THE CONTROL OF AMERICAN FOREIGN RELATIONS § 59 (1922).
dreamed of by the constitutional fathers (or by Taney), including the Charter of the United Nations and the Nuclear Test Ban Treaty.
Jefferson's assertion might niean that the United States cannot negotiate a new kind of treaty. It would not prevent the United States from entering into a treaty of a kind it has never negotiated, after other nations "had" begun "usually" to negotiate about it. Such a constitutional doctrine makes little sense for the country we have become, 61 but it would not, in fact, bar the United States from negotiating with other nations on human rights; nations have been "usually" regulating human rights by treaty at least since the "minorities treaties" of a half-century ago, in the UN Charter, in the various regional human rights arrangements now in effect, and in the human rights covenants that have been under negotiation for almost twenty years under the auspices of the United Nations.
We are left, then, with Jefferson's first limitation—that a treaty "must concern the foreign nation, party to the contract." Jefferson apparently saw this as an inherent characteristic of a treaty, a characteristic which the Constitution incorporated when it spoke of "Treaties.” It is not clear what this limitation nieant for him, what would be its practical consequences, what kinds of acts or arrangements it would preclude. Perhaps this limitation approximates the one expressed more recently in the now famous remarks made in 1929 by Charles Evans Hughes, erstwhile Secretary of State and already designated Chief Justice of the United States :
What is the power to make a treaty? What is the object of
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 relates 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-niaking
01 "We nust consider what this country has become in deciding what that (Tenth) Amendment has reserved.” Missouri v. Holland, 252 U.S. 416, 433 (1920).
62 See text accompanying notes 10-11 supra.
power to deal with matters which did not pertain to our
Hughes' remarks were extemporaneous, perhaps even impromptu, hot a carefully prepared statement of constitutional doctrine.54 He was setting forth the views which lay behind the position of the American Delegation (led by Hughes) to the Sixth International Conference of American States—that the United States “could not join” in a treaty to establish uniform principles of private international 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.57 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
68 23 Proc. Am. Soc'y INT'L L. 194, 195-96 (1929).
64 He spoke in response to urging from the floor that he express his views. Id. at 193.
86 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 Pun Americanism Some Observutions on the Sixth Internutiunul 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 Bustarnante 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 Coule of Dr. Bustamante, as in view of the Constitution of the United States of America, the relations among the states inembers 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).
58 For example, Professor Manley 0. Hudson, 22 PROC. Am. Socy INT'L L. 60 (1928), and Charles H. Butler, 23 Proc. Am. Soc'x Int'l L. 177 (1929).
6722 Proc. Am. Socy 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 supru and note 63 infra.
88 E.y., 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. SocʻY INT'L L. 196 (1929).