Symposium: return to Missouri v. Holland: federalism and international law: foreword.

AuthorMcGuinness, Margaret E.
  1. INTRODUCTION

    Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland (2) and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of greater concentration of power in the hands of the national, rather than state, government) presaged things to come. Returning to Missouri--the case and the place--is a perfect point of departure for examining what international law and federalism have become since Missouri v. Holland was decided in 1920.

  2. MIGRATORY BIRDS, COLLECTIVE ACTION, AND THE IMPORTANCE OF BEING MISSOURIAN

    In Missouri v. Holland the Supreme Court upheld federal regulation of bird hunting in Missouri on the ground that statutes enacted pursuant to the national treaty power could serve to preempt state regulations--even where the subject matter did not fall within the powers of Congress enumerated in Article 1, Section 8 of the Constitution. The case is often cited for the basic proposition that the national government may do through treaty what it otherwise may not do through national legislation. (3) More precisely, the case is described as holding that limitations on the legislative powers of the national government do not apply when the national government either (1) ratifies a treaty that is self-executing--a treaty that does not require implementing legislation to be given effect, or (2) enacts legislation that otherwise would be outside the enumerated powers of Congress so long as that legislation implements a valid non-self-executing treaty.

    The story behind the case begins with a classic collective action problem: regulating the hunting of migratory birds. (4) When European settlers arrived on this continent hundreds of species of migratory birds dominated the North American skies. By the late 19th Century, the unregulated hunting of migratory birds for their meat and plumage (satisfying the then-high demand for feathers for women's millinery) had reduced populations of many species to desperately low levels. (5) Migratory birds were especially vulnerable due to their habit of nesting in great numbers, making them an easy target for market hunters looking to take the highest quantity in the most efficient manner possible. (6) The plight of the now-extinct Ectopistes migratorius, or passenger pigeon, is illustrative. They were once the most populous species of bird in North America; naturalists estimate that there were as many as five billion passenger pigeons in North America at the time of the arrival of the Europeans. (7) They were so numerous that flocks of the migrating birds could stretch up to a mile wide and over 300 miles long, (8) and were so densely clustered that they were reported to blot out the sun for hours or even days at a time. (9) Yet, by the end of the 19th Century, passenger pigeons had been hunted to the brink of extinction. (10)

    Prior to 1900, no federal law regulated the capture of migratory birds. Instead, a patchwork of state and territorial laws regulated bird hunting and resale. The states and territories faced a classic tragedy of the commons. Bird hunting filled a commercial need, which incentivized states to permit capture and incentivized hunters to violate or evade the hunting rules in other states. Absent coordination of hunting rules among the states and territories, overhunting was leading to near-extinction of some bird populations, including insectivorous species essential to agriculture. The movement for national regulation started from the ground up, with state game officials finding common cause with state and national conservation organizations and sportsmen's organizations (forefathers of the modern environmental NGOs). They were joined by the Department of Agriculture, which was increasingly focused on the devastating effect of the depletion of insectivorous birds on crop yields. (11)

    The result of this alignment of interests was the Lacey Act of 1900, which made it illegal to engage in interstate transport of birds or wildlife taken in violation of state or territorial law. (12) The weak enforcement provisions of the Lacey Act, however, proved inadequate to the task. Congress got tougher with the passage of the Weeks-McLean law of 1913, which deemed all migratory game and insectivorous birds that passed through the borders of any state or territory to be within the custody of the U.S. Government, and prohibited the destruction or taking of those migratory species. (13) As many of its proponents feared would happen, two federal courts declared the Weeks-McLean statute unconstitutional as outside Congress' enumerated powers, and rejected, in accordance with Court precedent at the time, the argument that regulation of game found within the borders of a State could be accomplished through the Commerce Clause. (14) By that time, Senator Elihu Root--who just a few years earlier had founded the American Society of International Law--had suggested the use of a treaty as a solution to any constitutional infirmities. (15) In reaction to these court decisions, the United States negotiated and the Senate approved the Migratory Bird Treaty with Great Britain, acting on behalf of Canada, in 1916. Congress passed the implementing statute--the Migratory Bird Treaty Act (16)--in 1918, and President Woodrow Wilson signed the Act in July of that year. The Act prohibited the hunting, killing, or subsequent sale or shipment of the birds protected by the Migratory Bird Treaty.

    Later that year President Wilson set sail for the Paris Peace conference with a new adviser in tow, a young native Missourian and law professor from the University of Missouri named Manley O. Hudson. Hudson would go on to teach at Harvard, replace former Secretary of State Frank Billings Kellogg as justice on the League of Nation's Permanent Court of International Justice, and advise the drafters of the UN Charter and the Statute of the International Court of Justice. (17) As the peace negotiations opened in Paris (promising, not for the last time, a new world order under international law) opponents of the new Weeks-McLean law, which included commercial hunters and some avid recreational hunters concerned about federal oversight of their sport, looked for a challenge. They found it when the federal game warden, Ray Holland, arrested and indicted some Missourians caught with ducks hunted out of season for violating the new statute. (18)

    The State of Missouri sought to enjoin further action by Holland. The federal district court of the Western District of Missouri dismissed Missouri's application for an injunction, and in so doing remarked that, without the treaty, the Act would have been unconstitutional. (19) It is from this opinion that the State of Missouri appealed to the Supreme Court. The Court upheld the treaty and the implementing statute by a vote of 7-2. (20)

    The Holland decision in turn aroused fears over the use of the Treaty Power as an end-run around the constitutional order of dual sovereignty or dual federalism, which envisioned a national government of limited, enumerated powers, leaving all other functions and powers to the states and the people. (21) These fears were manifested in institutional backlash, in particular the efforts of Frank Holman as president of the American Bar Association in the late 1940s to amend the Constitution. (22) These efforts were later taken up by Senator John Bricker of Ohio. To the minds of Holman and Bricker, the sweeping precedent set by Holland would permit international legal commitments to blanket the sky--not unlike the migration of the passenger pigeons of yore--blotting out the police powers of the states and overshadowing the limitations on congressional and presidential power. (23) These efforts to amend the Constitution sought to limit the scope of the Treaty power and the use of executive agreements in order to prevent the President from committing the United States to the broad post-World War II internationalist projects, in particular the emerging international human rights system. The fear was that the practices of U.S. states, specifically the institutionalized racial segregation and discrimination of the Jim Crow south, would be found in violation of these new international commitments. The proposed amendments failed, in large part because the United States government committed itself to remain outside the international human rights regime. (24) But the controversies over U.S. participation in treaty regimes that give effect to individual rights, and what such participation means for political and legal theories of the value of federalism to our democratic order, are very much alive, as the contributions to this symposium demonstrate.

  3. MISSOURI V. HOLLAND: CONSTITUTIONAL TEXT, STRUCTURE AND HISTORY

    The first four contributions to the symposium return us to the central doctrinal debate over Missouri v. Holland through an exploration of the text, structure and history the Treaty Power, the Supremacy Clause, the Article 1, Section 8 powers of Congress, and the Tenth Amendment. Professors Ramsey, Vazquez, Swaine, and Spiro (25)--and the live commentary by Professors Golove and Rosenkranz (26)--address questions that Oliver Wendell Holmes' opinion in Holland arguably left unclear: What, if any, subject matter limitations apply to the national Treaty Power? Are there limits on Congress' power to legislate pursuant to the Treaty Clause? Do structural...

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