National supremacy; treaty power vs. state power

Front matter

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Preface

The main purpose of the following study is to investigate the relation of the national treaty-power 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 bindvi PREFACE

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.

Contents

CHAPTER PAGE

I — The Problem and the Mode of Attack . . . i

H — The Scope of the Treaty-Power ... 8

Chapter I The Problem And The Mode Of Attack

Government in the United States is dual, that is to say, the powers of government are distributed between the States and the National Government. The rule governing this distribution is as follows: The National Government has such powers,, and those only, as are bestowed upon it in terms by the Constitution, while to the States are left all other powers which are not prohibited them by the Constitution. True, the National Government exercises what are known as " implied powers " but this is in consequence of Article I, section 8, paragraph i8, of the Constitution, which confers upon Congress the power to make " all laws necessary and proper " for carrying into execution its enumerated powers as well as those that are conferred in terms upon the other departments of the National Government; so that in strict constitutional theory the so-called " implied powers " of the National Government are of the same legal character as those powers that are bestowed upon it in more precise terms. True, also, the State governments do not always possess all the powers that under the national Constitution belong to a State, but this is because the people of a State often choose to withhold the powers in question from their government and is, therefore, a consideration affecting only the internal policy of such States and not at all the constitutional law of the nation at large. In general, therefore, the rule above formulated as the one governing the distribution of powers between the States and the United States, under the national Constitution, is the correct one.

At first glance it might seem that this apportionment of power between the States and the National Government was of an accuracy to obviate all conflicts of authority between the two centers, and doubtless there were those in the Convention of 1787 who thought that the eternal riddle of what degree of independence and autonomy to leave in the localities, while at the same time preserving an adequate force at the center, had been solved, at least in terms, once and for all time. But if such belief was held, it was a delusion, for aside entirely from the fact that the vitality of a nation is not to be thus " cabined, cribbed, confined " by the intention of even the most perspicacious law-givers, there is the equally patent fact that the legal approaches to any given subject-matter of legislation are multifarious, wherefore it often happens that the same

PROBLEM AND MODE OF ATTACK 3

subject-matter falls under governmental control in a considerable number of ways at one and the same moment. This would obviously be the case in any system of government. The peculiarity attaching to the American system is merely that governmental control is divided between two centers, so that while one center may be attempting to control a given matter in execution of power indubitably belonging to it, the other center may upon like grounds be attempting control of the same matter in a quite contradictory fashion and to quite contradictory ends.

The application of these remarks to the subject of this essay furnishes also their illustration. By the Constitution not only is the power to make treaties conferred in terms upon the National Government/ but it is specifically denied the States.^ On the other hand, the Constitution plainly infers the possession by the States of broad powers of control over their internal concerns, powers which, when viewed from the point of view of the security, morality, and welfare of the community to which they are available, are called the " police powers." It has not a few times come about, therefore, as we shall discover in due course, that something done by a State in the supposed exercise of its police powers, has fallen athwart something done by the National Government in the supposed exercise of its power to make treaties. The question is at

'Art. II, Sec. 2, Par. 2.

' Art. I, Sec. 10, Par. i ; cf. ib., Par. 3.

once prompted, what is the way out of such an impasse?

Turning, then, to the Constitution for enlightenment, our attention is first drawn to Article VI, paragraph 2, which announces that " This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land," and " the judges in every State," — and a fortiori, the judges of the United States, — " shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."

Indubitably this passage settles the fact that a treaty made " under the authority of the United States" overrides all conflicting provisions of State constitutions or State statutes, but the question still remains, whether all treaties, though made with all due form, can claim the sanction of the " authority of the United States." That authority rests upon the Constitution, which is thus the legal source of the treaty-power. Can the treaty-power then be conceived to be without constitutional limitation? The consequences of an affirmative answer to this question would not necessarily be so terrific as has perhaps been sometimes imagined — ^they might conceivably be rather negligible, since the actual check imposed upon the treaty-power by the method prescribed in the Constitution for its exercise — ^in other words, the political check — should be not a little

PROBLEM AND MODE OF ATTACK 5

efficacious in practice. On the other hand, the notion of unHmited power, wherever lodged, has always been to the American mind an uncongenial one.^ Indeed so true is this, that attachment to constitutional limitations enforceable by the courts has in the past amounted to a national superstition. Naturally the treaty-power, though no treaty has ever been declared unconstitutional, has not altogether escaped the action of this bias.

But admitting that the treaty-power is constitutionally limited, that the United States cannot do by treaty what it is forbidden by the Constitution to do at all, the question next arises, whether what we have called the police powers of the State comprise one of the limitations to that power. The provision of the Constitution that is usually brought forward in this connection is the Tenth Amendment, which reads as follows : " The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the People." The literal meaning of these words, it is submitted, is that the powers reserved to the States are reserved always in consequence of and conditionally upon their not having been delegated to the United States, so that once it is made out that an item of power has been really delegated to the United States, it is impossible to set up the contention that such power is constricted by supposed outstanding rights of the

•T. M. Cooley, "Constitutional Limitations" (1871), 173-7-

States. In other words, all that the Tenth Amendment signifies is a specific recognition of the fact implied by Article VI itself, that the States possess certain legislative powers. In the exercise of these, however, they may perchance transgress the Constitution, an act of Congress in pursuance thereof, or a treaty made under the authority of the United States. But when this happens, the pertinent provision of the Constitution is no longer the Tenth Amendment but Article VI, paragraph 2.

Nevertheless, obvious as this construction of the Tenth Amendment would seem to be, it is not the construction that it has invariably received, either with reference to the treaty-power or certain other powers, of the National Government. But by a shifting of emphasis from that clause of Amendment X, which marks the exception, to that clause which states the otherwise dominant rule, the Amendment has at times been construed as if it read, " the powers reserved to (or by) the States, are not delegated to the United States." And it is in consequence of this fact, and the confusion of doctrine thus exemplified, that it has become necessary to investigate afresh the constitutional relation between the treaty-power and the police powers of the State.

So much for the question. A word further as to the way of approach we have chosen to it, which is primarily the historical. For, as the late Samuel Butler remarks in one of his essays,

PROBLEM AND MODE OF ATTACK 7

" The only way to understand a subject is to understand it historically." And if this is true of a biological theory, it is much more likely, I think, to be true of a matter like law, which is so avowedly historical in its manner of growth. But there is a second and more important consideration : The treaty-power is . but one item of national power. The construction of it, the scope given to it by Constitutional Law, will be found to have tended to vary with those of the other principal items of national power; and with the measured swing of the pendulum from emphasis in the Federalist period upon national rights to emphasis upon State rights in the epoch between Jackson's accession to the Presidency and the outbreak of the Civil War, and with the swing back again in the succeeding generation, will be seen to have been subjected to very calculable exigencies of delineation by a Tribunal that bends, though but slowly, the established doctrine, to accommodation with settled national views. To put my intention in a single sentence, then, it is this : To trace the line between State power and the national treaty-power as a part of the whole pattern of American Constitutional Law, as that pattern has slowly developed.

Chapter II The Scope Of The Treaty-power

Before we proceed to our main topic, it will be worth our while to review briefly the whole general subject of constitutional limitations on the treaty-power, as these exist to-day. What, then, is signified by the question in general, as to the legitimate scope of the treaty-power? The formal answer to this question is, of course, not far to seek. By it is meant, within what limits is a treaty entered into by the United States legally binding. But, again, what is meant by the phrase " legally binding"? One of two things may be meant: First, legally binding upon the United States as a person at International Law ; secondly, legally binding upon all individuals and things subject to the jurisdiction of the United States, as " supreme law of the land." In the former sense, any treaty entered into by the President and Senate of the United States, acting in due form, is binding, since Inters national Law takes cognizance of the American Constitution to the extent, and only to the extent, of inquiring as to what functionaries are authorized by it to act for the United States in the business of treaty-making. And the United States, being a person at International Law, is bound by this refusal of International Law to make further inquiries in the direction suggested. And this is a higher limitation upon the United States than any set by the Constitution: it binds even "the People of the United States " and is the conditio sine qna non of their membership in the Family of Nations.

Evidently, therefore, we are not further interested in the question, whether the United States would be bound in International Law by a treaty that the President and Senate, acting in due form, made in excess of their constitutional powers. By International Law, the United States is bound to observe its treaties or make due reparation.

The sole question before us, therefore, is this: Within what limits is a treaty entered into by the United States in the manner specified by the Constitution binding as " supreme law of the land," which on the one hand the courts may legitimately enforce as such, or which, on the other hand. Congress may legitimately supplement with appropriate legislation? ^

In the first place, it seems to be established doctrine, that the treaty-power is limited in certain directions by the powers of Congress. Thus, while it is agreed on all hands that the treaty-making body

" Said the Supreme Court in the Cherokee Tobacco case : " It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government." 11 Wall. 616 (1870).

can enter into agreements creative of individual rights which the courts will enforce without supplementary legislation by Congress/ it is equally well agreed that it cannot appropriate money, since the Constitution provides that " no money shall be drawn from the treasury but in consequence of appropriations made by law." ^ And from this it is generally held to follow, that Congress in making appropriations necessary to carry treaties into effect is a perfectly free agent. Such certainly seems to be the verdict usually deduced from the debate in the House of Representatives in 1796 upon Jay's Treaty, when the House discussed the policy of the treaty itself before voting the needed sums.* On the other hand. Congress has never in fact refused to vote an appropriation in such a case.

More doubtful is the question, whether Congress must be consulted before a commercial treaty altering the customs rates can be put into effect. In 18 16, in connection with a commercial treaty with England, Congress was in fact consulted, but it seems to have been admitted even by the spokesmen of the House that the act putting the treaty into effect was pro forma.^ In 1844, however, quite a different

' Hamilton in " Federalist," 23 ; United States v. Schooner Peggy, I Cranch 103 (1801).

'Art. I, Sec. 9, Par- 7-

' Henry Adams, " Life of Albert Gallatin," 161. Cf. Samuel B. Crandall, "Treaties, Their Making and Enforcement," 118-35.

° Report from Sen, Com. on For. Rel., February 27, 1816,

SCOPE OF THE TREATY-POWER ii

view was taken, the Senate this time proving remarkably backward in asserting its prerogative. But there is good ground for beheving that there were peculiar reasons for its attitude on this occasion, the principal one being its hatred of President Tyler." To-day, the settled practice admits Congress' participation in all customs agreements with foreign nations, such agreements being usually entered into in conformity with a general authorization from Congress, such as that given by the McKinley Tariff Law and again by the Dingley Law.' But judicial decisions, on the other hand, undoubtedly sanction the contrary view, namely, that the treaty-power can effect customs agreements with foreign powers without Congress being consulted.*

However, if Congress is consulted, it is as a free agent. And the mere fact that a treaty has been negotiated does not constrain it, through the oaths of its members to support the Constitution, to vote the required legislation. If there was ever doubt upon this point, it was certainly settled by the Chinese Exclusion cases," upholding an act of Congress abrogating certain treaty arrangements with

Sen. Doc. No. 231, s6th Cong., 2d Sess., VII, 25. Cf. Crandall, 135-40.

"Report from Sen. Com. on For. Rel. of June 14, 1844; also Report of February 26, 1845 : loc. cit, VII, 36 and 40.

' Crandall, 142-6.

'Bartram v. Robertson, 122 U. S. 116 (188;). Whitney v. Robertson, 124 U. S. 190 (1888).

' Chae Chan Ping v. U. S., 130 U. S. 581 (1889), and Fong Yue Ting v. U. S., 149 U- S. 698 (1893); preceded by the

China. For if Congress can abrogate a treaty, provision for the abrogation of which is not incorporated in the treaty itself, then assuredly it cannot be bound to yield its assent to a treaty with reference to which it is consulted, nor to enact laws to put into operation a treaty which without such laws would remain inoperative. Contrariwise, if a " treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment," and repeal all conflicting prior acts of Congress.^"

The treaty-power, then, cannot appropriate money nor bind Congress indefeasibly. Let us, however, consider yet another limitation, one which touches upon some interesting and important historical issues. In connection with the Louisiana Purchase in 1803, the Federalist opponents of the administration asserted, and Jefferson himself admitted, that while the treaty-power was competent, perhaps, to acquire territory, it was not competent to bring such territory into the Union. The argument was founded upon the proposition that to concede the treaty-power this competence was to allow it to transform the character of the Union." In 1828, in the American Insurance Company v. Canter,^^

Head Money cases, 112 U. S. 580 (1884), extending Taylor v. Morton, 2 Curt. 454 (1855).

"° Whitney v. Robertson, supra, citing the Cherokee Tobacco case.

"■ Henry Adams, " History of the U. S.," II, Ch. IV and V.

Chief-Justice Marshall refused to say whether the United States had the right to acquire territory by virtue of its treaty and war powers or by virtue of its inherent sovereignty as a nation. In his famous opinion in the Dred Scott case," Chief-Justice Taney reversed the point of view of 1803, arguing that the United States had the right to acquire territory only with a view to making it part and parcel of the Union. The earlier view, however, lies at the basis of the Court's decisions in the Insular cases." In these decisions it was held that Porto Rico and the Philippine Islands are not parts of the United States as that term is used in the Constitution : first, because it was no intention of the treaty-making body to make them such, and secondly, because even had it been, that body were incompetent so to act, since only Congress may incorporate new territory with the United States.

The most recent exemplification of constitutional limitations upon the treaty-power arising from the rights of other departments is afforded by the circumstances attending the accession of the United States to the Hague Convention of 1907, establishing an International Prize Court.^^ In the original convention, this court is a court of appeal from prize courts of belligerents. Under the United States Constitution, however, jurisdiction in such cases falls to the regular courts, in which the total " judicial

"Especially Downes v. Bidwell, 182 U. S. 244 (1901).

"G. G. Wilson, "Handbook on Int. Law," App. IV, 554 «• power of the United States " is vested. In his message of December, 1909, therefore, President Taft urged the idea that the United States could not bytreaty transfer to a tribunal not known to the Constitution such part of its judicial power as would be represented by the establishment of appeals from the United States district courts, sitting in prize cases, to the International Prize Court. He had accordingly, he said, despatched a circular note to the parties to the Hague Convention asking a special dispensation for the United States, by which the United States should be allowed, in lieu of granting appeals from its regular courts to the International Court, to be mulcted in damages in the latter for erroneous decisions of the former. And upon this basis the United States has finally become party to the convention in question.

But from the point of view of individual rights the most important limitations on the treaty-power are those comprised in the Bill of Rights of the United States Constitution. Consider, for example, a question which arose in connection with a certain clause of the Treaty of 1853 with France. By this clause it was provided that the consuls of either of the contracting powers stationed in the territories of the other should " never be compelled to appear as witnesses before the courts." ^' Relying upon this provision,

""Treaties and Conventions" (1889), 351, Art. II of the Convention.

the French consul at San Francisco, the year following, refused to respond to a subpoena duces tecum, issuing in the name of the United States district court of San Francisco, and was accordingly brought into court on an attachment. The attorney for the consul urged the language of the treaty, while opposing counsel contended that the treaty was at this point void, as in conflict with the Sixth Amendment of the United States Constitution. Judge Hoffman ruled in favor of the consul, basing his decision upon the ground that the constitutional provision involved was designed, not to subject every individual to process, but to secure to the accused equal rights with the prosecution in the obtaining of testimony. Secretary of State Marcy, however, did not agree with this doctrine, asserting that, though " as the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses," consuls were not understood to be vested with such diplomatic immunities.^^ Recent consular conventions give evidence that Secretary Marcy's contention is to-day accepted, at least as a guiding principle of negotiation.^'

But the most vital and comprehensive of all con-

"John Bassett Moore, "International Law Digest," V, 167-8.

" Sen. Doc. No. 357, 6ist Cong., 2d Sess., ' Treaties, Conventions, Int. Acts," etc. (W. M. Malloy, editor : 1909) : Convention of 1902 with Greece, I, 855-60; Convention of 1902 with Spain, II, 1701-10. This work will be hereafter cited as "Malloy."

stitutional restrictions upon the various powers of the National Government is afforded by the final clauses of the Fifth Amendment: " No person . . . shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." The fact that the United States has often entered into claims conventions with other nations by the terms of which it has agreed to consider cancelled, for certain lump sums, the claims of American citizens against such nations, and the fact that such conventions have been upheld by the courts has sometimes given rise to the impression that the Fifth Amendment does not affect the treaty-power/^ But this conclusion is undoubtedly erroneous. The validity of claims conventions is founded upon the fact that, owing to the maxim that a sovereignty can be sued only by its own consent, claims against such sovereignty can be regarded as only rights inchoate, for which the Government, by its action in compounding them, is enabled to substitute something of real, though possibly of less nominal value. Certainly the due process of law clause of the Fourteenth Amendment is the most pervasive of all constitutional restrictions upon the legislative powers of the States,^" and there is an unmistakable tend-

" Charles Henry Butler, " Treating-Making Power of the U. S.," II, Sees. 442-4. Cf. Comegys v. Vasse, i Pet. ig-? (1828).

'° See Eugene Wambaugh, in American Pol. Sc. Rev., IV, 483 f f.

ency on the part of the Court to treat the corresponding clause of the Fifth Amendment as similarly restrictive of the power of Congress/^ even when legislating for unincorporated territory. Said Justice Brown in his opinion in the Insular cases;

" We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them . . . ; the right to personal liberty and individual property, to freedom of speech and of the press ; to free access to courts of justice, to due process of law, and to an equal protection of the laws; . . . and to such other immunities as are indispensable to a free government."

And the distinction thus tentatively afforded has become the basis of subsequent decision.^^ Resting upon the fundamental grounds that it does, it may be confidently claimed as establishing the limits, not merely of congressional power, but of the treaty-power as well, whenever it impinges upon private rights.

'' See U. S. V. Adair, 208 U. S. 161, preceded by Northern Securities Co. v. U. S., 193 U. S. 197, Monongahela Nav. Co. V. U. S., 148 U. S. 312, Sinking Fund Cases, 99 U. S. 700, Hepburn v. Griswold, 8 Wall. 603, and Scott v. Sanford, 19 How. 393.

" Hawaii v. Mankichi, 190 U. S. 197; Dorr v. U. S., 19S U. S. 138.

But if this reasoning be admitted to be correct, it must also be admitted to disclose why, with the advance of the science of constitutional jurisprudence, it becomes less hazardous, from the point of view of private rights, to insist upon the full rigor of the doctrine that the treaty-power is not limited by the reserved rights of the States. For all rights are in the last analysis private rights. The correct doctrine is that stated by Franklin on the floor of the Convention of 1787 : " The interest of a State," said he, " is made up of the interests of its individual members. If they are not injured the State is not injured." ^' And the point of view of James Wilson was the same. " Can we forget," he exclaimed, " for whom we are forming a government? Is it for men or for the imaginary beings called States f " "* And to the same effect were the words of King. He was

" filled with astonishment, that, if we were convinced that every man in America was secured in all his rights, we should be ready to sacrifice this substantial good to the phantom of State sovereignty." ^'

However, before passing to our main topic, I would suggest one further restriction upon the treaty-power, namely, that it must be confined to its proper business and must be exercised in good faith.

"June II, Farrand, I, 199.

" June 30, ib., 483.

" Same date, ib., 489. See also Madison, June 21, ib., 357-8.

To quote a recent writer : " The treaty-making power . . . cannot be employed with reference to a matter not legitimately a subject for international agreement." ^^ This same idea is sometimes given a more rigorous cast; and it is asserted that the treaty-power is confined to those interests which comprised the recognized objects of international negotiation at the time of the adoption of the Constitution. But to hold with this doctrine would be to deny to the treaty-power the benefit of canons of construction, which, more than once, have been applied to the powers of the National Government in general. The point has, of course, never been adjudicated, but upon general principles, it must be held, that the United States has equal capacity with other sovereign nations to adapt itself to the changing exigencies of international relations.

Finally, as was said before, the treaty-power is exercised under the authority of the United States, an authority which is defined and controlled by the Constitution and the structure of the government erected thereon. On the other hand, it is not defined and controlled by the reserved powers of the States, but these are often defined and controlled by it. The term " reserved powers of the States " can never be used with propriety as indicating a restriction upon the powers assigned by the Constitution to the National Government. It can be