PREFACE THE main purpose of the following study is to investigate the relation of the national treatypower to State power. In the view of the framers of the Constitution, State power could not limit the National Government in the exercise of its granted powers. Of this view Article VI, paragraph 2 of the Constitution, is the authoritative statement. This paragraph at once recognizes the "reserved powers" of the States and provides that when any exercise of those powers comes into collision with a constitutional exercise of its powers by the National Government, the former must yield. Subsequently, however, with the development of the doctrine of State rights, the notion arose that the States possessed certain powers which were by nature inalienable and which, therefore, had never been alienated. From this notion it was further deduced that the National Government could not constitutionally so exercise any of its powers as to effect a control of subject-matter already under control by a State in the exercise of one of these inalienable “police powers." Inevitably, this doctrine operated to curtail the theoretical extent of the treaty-power of the United States, though, as we shall see, this result seems never to have registered itself in bind V 200795 ing judicial decision. The situation to-day is, therefore, that the early precedents defining the scope of the treaty-power in relation to State power are still law. Once again, moreover, they are in harmony with general doctrine. For who can doubt, since the decision in Rahrer's case (140 U. S. 545), that the police powers of the States are always to be exercised in subordination to national power? Recent decisions emphasizing the same doctrine from the side of national power are familiar to all. But the writer has also had a second purpose in view. The doctrine of National Supremacy was first developed, as it chances, to secure the national treaties from infraction by the States. The tracing of the relation of the treaty-power to State power consequently afforded an opportunity to sketch the general history of the doctrine of National Supremacy that could hardly be put aside. In preparing this study the writer has had valuable guidance from the writings of others, particularly from Mr. Butler's learned work on "The Treaty-Making Power." He wishes also to acknowledge his indebtedness to his friend Mr. Francis X. Carmody of the New York Bar for some valuable criticisms. EDWARD S. CORWIN. PRINCETON, N. J., May 20, 1913. CHAPTER CONTENTS I-THE PROBLEM AND THE MODE OF ATTACK. II-THE SCOPE OF THE TREATY-POWER . Limited by the Powers of Congress Limited by the Bill of Rights Limited by Constitutional Bona Fides III-THE SUPREMACY OF NATIONAL POWER Origin of the Doctrine of the Supremacy of The Convention of 1787 and State Power Early Decisions Early Consular Conventions and Treaties of Treaties of Extradition Views of Kent and Story V-STATE SOVEREIGNTY AND THE POLICE POWER Appearance of New Canons of Constitutional Origin of the Doctrine of State Sovereignty Effect of the Doctrine on Constitutional Law Rise of the Doctrine of the Police Power . VI-TREATY-POWER VERSUS POLICE POWER Views of Calhoun and Cushing VII-ADJUDICATION SINCE THE CIVIL WAR Judicial Conservatism After the Civil War VIII-RECENT PRACTICE AND OPINION Fluctuation of Opinion in the State Department 208 The California-Japanese Controversies National Control of State Organs for National Executive Power Independent of Legislation. |