CHAPTER XXXV.

THE CONSTITUTIONAL EXTENT OF THE TREATY MAKING POWER.

§ 210. Treaty-Making Power Granted Without Express Limita

tions.

The treaty-making power is granted in the Constitution without any express limitations as to the subjects to which it may relate. And all treaties, without qualification, are declared to be the supreme law of the land, "anything in the Constitution. or laws of any State to the contrary notwithstanding." If, then, there are any limitations to its extent, they must be found inherent in the nature of the treaties themselves, or implied in other clauses of the Constitution or in the very nature of the polity which that instrument is designed to create and maintain.

§ 211. Implied Limitations.

No treaty has ever been held unconstitutional in any court, federal or state, in the United States. That there are, however, limits, despite the fact that in no case has there arisen the necessity for applying them in a court of law, would appear beyond question. From the early years of the present Government to the decision of the Insular Cases in 1901, the Supreme Court has, upon frequent occasions, stated, not only in general terms, but with reference to specific matters, that there are limits to the subjects that may, by treaty, be made the supreme law of the land. In New Orleans v. United States' speaking with reference to the succession of the United States Government to the French Government in Louisiana, the court said: "This succession did not authorize the United States to exercise prerogatives of sovereignty not consistent with the Constitution of the United States." In Pollard's Lessee v. Hagan2 the court

110 Pet. 662; 9 L. ed. 573. 23 How. 212; 11 L. ed. 565.

said: "It cannot be admitted that the King of Spain could by treaty or otherwise impart to the United States any of his royal prerogatives, and much less can it be admitted that they have capacity to receive or power to exercise them." And, later on in the same opinion: "The court denies the faculty of the Federal Government to add to its powers by treaty." In the Cherokee Tobacco Case3 the opinion declares: "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."

In De Geofroy v. Riggs Justice Field declares: "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 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. (Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; 29 L. ed. 264.) 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. (Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; Chirac v. Chirac, 2 Wheat. 259; 4 L. ed. 234; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 California 381.)"

In Downes v. Bidwell5 four of the majority justices in their opinion deny the authority of the treaty-making power to "incorporate" annexed territory into the United States. And the minority declare that "a treaty which undertook to take away

311 Wall. 616; 20 L. ed. 227.

4 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

what the Constitution secured, or to enlarge the federal jurisdiction, would be simply void."

These dicta of the Supreme Court that have been quoted are really obiter in that in no case was a treaty provision held void. However, the statement being so often and so positively asserted it may be taken for granted that there are constitutional limits to the treaty-making power, and that when these limits are overstepped, the courts will interpose their veto.

§ 212. The Treaty-Making Power and the Reserved Rights of the States.

The supremacy of a federal treaty over a conflicting state law, with reference to matters not reserved to the States, has not been questioned since the time it was established that a federal statute, enacted within either the concurrent or exclusive constitutional

• For additional declarations by the Supreme Court that treaties are necessarily subordinate to the Constitution, see Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; United States v. The Peggy, 1 Cr. 103; 2 L. ed. 49; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; Doe v. Braden, 16 How. 635; 14 L. ed. 1090; Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740. In the Wong Kim Ark case, the minority point out that the effect of the decision of the majority is to limit the treaty-making power to prevent children of resident aliens becoming citizens of the United States.

Calhoun, in his Discourse on the Constitution and Government of the United States, says: "It [the treaty-making power] is limited by all the provisions of the Constitution which inhibit certain acts from being done by the government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to be done in a particular way and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shal! be drawn from the Treasury but in consequence of appropriations to be made by law.' This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Repre sentatives as a portion of Congress, the right to withhold appropriations; and, thereby, an important control over the treaty-making power whenever money is required to carry a treaty into effect; which is usually the case, especially in reference to those of much importance. There still remains another, and more important limitation, but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the government; or to do that which can only be done by the constitution-making power; or which is inconsistent with the nature and structure of the government." I Works, 203.

competency of Congress, operates to nullify all inconsistent state legislation. In this respect, as the Constitution expressly declares, treaties and acts of Congress are upon precisely the same footing.

In Ware v. Hylton, decided in 1796, Justice Chase says: "There can be no limitation on the power of the people of the United States. By their authority the state constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the General Government and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a state legislature can stand in its way. If the constitution of a State (which is the fundamental law of the State, and paramount to its legislature) must give way to a treaty, and fall before it; can it be questioned whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the constitution and laws of any individual State; and their will alone is to decide. If a law of a State contrary to a treaty is not void, but voidable only by a repeal or nullification of a state legislature, this certain consequence follows: that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the national Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded."

In Fairfax v. Hunter, Chirac v. Chirac, Hauenstein v. Lynham,10 and other cases, the doctrine declared in Ware v. Hylton was approved and applied.

The attempt has been made to detract from the force of Chase's doctrine as declared in Ware v. Hylton, by emphasizing the fact

73 Dall. 199; 1 L. ed. 568.

87 Cr. 603; 3 L. ed. 453.

92 Wh. 259; 4 L. ed. 234.

10 100 U. S. 483; 25 L. ed. 628.

that in that case the treaty in question was one which had been originally entered into under the Confederation, that is, at a time when the States were severally sovereign, and that, therefore, it was a treaty to which the States may be said to have individually assented. There would not, however, seem to be much force in this, for if, after the adoption of the Constitution, the treaty in question could be considered in any way as still an instrument deriving its validity from the consent of the State, it could have been abrogated by subsequent state action, but this, of course, was expressly denied by the court in Ware v. Hylton. The truth is that the Constitution puts treaties, made and to be made, upon exactly the same footing, and in the later cases which are cited above, the doctrine of Ware v. Hylton is considered as controlling with reference to treaties made after the adoption of the Constitution.

It may, then, be considered as established that a treaty entered into by the Federal Government with respect to a matter within the federal jurisdiction is supreme over a conflicting state law. This leads to the question whether, by an exercise of the treaty-making power, the Federal Government may regulate matters within the States which it may not control by act of Congress, and if, in this respect, the treaty-making power is broader than the legislative, in what respects, and to what extent, it is broader.

§ 213. Judicial Dicta that Reserved Rights of the States May not Be Infringed.

Upon this point the declarations of the Supreme Court are not completely satisfactory. In various of its opinions this tribunal has explicitly asserted that the rights reserved by the Constitution from the control of the other departments of the Federal Government may not be infringed by its treaty-making power.

In Prevost v. Greenaux" the court say: "That a treaty is no more the supreme law of the land than is an act of Congress is

11 19 How. 1; 15 L ed. 572.