Treaty-making and the nation: the historical foundations of the nationalist conception of the treaty power.

• Author: Golove, David M.
• Position: Natinal government treaty power vs. state legislative powers

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite.

The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles of Confederation in the Virginia state legislature in 1777 -- recurring time and time again throughout the Eighteenth, Nineteenth, and early Twentieth centuries, building to a climax in the Supreme Court's famous 1920 decision Missouri v. Holland,(1) continuing in the 1950s with the Bricker Amendment controversy, and reemerging as recently as last year in an article published in this Review(2) -- the issue has been among the most passionately disputed questions in our constitutional history. Although temporarily in hibernation, it threatens presently to break out again into full-blown conflict.(3)

Can the federal government enter into treaties on subjects that are otherwise beyond Congress's legislative powers? Consider some typical examples from the nation's past: treaty stipulations overriding traditional state laws preventing aliens from owning real property (circa 1795), impinging on the South's "peculiar institution" (circa 1823), overriding a state's Plessy-sanctified policy of maintaining separate but equal schools for resident Japanese schoolchildren (circa 1907), and mandating a national anti-segregation policy (circa 1950).(4) In each of these cases, it was widely agreed contemporaneously that Congress's legislative powers were incapable of reaching so far into the internal affairs of the states. Were treaties? Translated into the present: Can the national government enter into a treaty outlawing the death penalty as a violation of universal human rights, even if Congress's legislative powers would otherwise not extend that far?

Pitted against each other in the debate are two fundamental postulates: on the one hand, the overriding imperative to present a unified national front in negotiations with foreign countries in order to maximize our influence and protect and advance our national interests in the perilous realm of foreign affairs; on the other hand, the principle of local decisionmaking embodied in the Tenth Amendment.(5) The potential for collision is obvious and, at least in theory, of the most portentous character. This prospect has been exacerbated, moreover, by the highly intermittent character of treaty-making. The sudden appearance of a treaty intruding on a field in which Congress had never before regulated understandably tended to upset long-settled expectations of exclusive state authority. When the subject matter of a treaty was tied up with the question of race, as has repeatedly been the case, the combination of circumstances was apt to, and often did, prove explosive.

The cyclical nature of the debate, however, should not obscure the essentially straightforward character of the constitutional question. Nothing said thus far has been intended to intimate that the Constitution is subject to two equally compelling constructions. Notwithstanding two hundred years of impassioned efforts by states' rights advocates to deny the obvious, the text and structure of the Constitution, as well as original intent, leave little room for serious debate. Faced with overwhelming arguments against their view, states' rights proponents have understandably chosen to retreat to arguments from first principles rather than attend to careful analysis of text and structure. Nor does history offer them any greater comfort. Although the issue has never been free from substantial controversy, the dominant view throughout most of our history has affirmed the so-called "nationalist view." The "states' rights view" predominated, if ever, only during the antebellum struggle, when the issue became entangled with the slavery question and the accompanying states' rights dogmas of the day.

There is, of course, another overriding consideration in favor of the nationalist view: the Supreme Court authoritatively resolved the question eighty years ago in Missouri v. Holland and has never shown any inclination, even in recent decisions, to reconsider that landmark decision. Indeed, it forcefully reaffirmed the essential holding of Missouri in the midst of an extended campaign, led by Senator Bricker during the 1950s, to overrule the decision through constitutional amendment.(6) Given a seven-to-two decision rendered by a Court well known for its sensitivity to federalism concerns -- a decision that has been on the books for eighty years, repeatedly reaffirmed and never questioned by the Court, and the object of a highly publicized but failed effort to amend the Constitution -- it is difficult to see what justification there could be now for overruling such a venerable decision. Yet, that is precisely what Professor Curtis Bradley forcefully advocated in Treaty Power and American Federalism, recently published in this Review.(7) It is to defending the correctness of Missouri that I devote the following pages.

To be sure, Justice Holmes's brilliantly compressed opinion -- it spans only five pages in the United States Reports -- has been and continues even today to be widely misunderstood. This is due in part to the opinion's deceptive blandness. It seems almost a parody that a century and a half of intense constitutional controversy should come down to Justice Holmes's question: If an act regulating migratory birds is unconstitutional as beyond Congress's constitutional powers, can a migratory bird treaty followed by the same act be valid? Even more puzzling is Holmes's impassioned rhetoric: what provoked him, in the opinion's most celebrated passage, to invoke the bloodshed of the Civil War in justification of a migratory bird treaty? As we shall see, notwithstanding the abiding mysteries, all of the essential reasoning in support of the nationalist view can be unearthed from the cryptic passages of Holmes's brief text.

More importantly, the most recent attacks on Missouri contend that its holding finds no support in history. This is not a new claim. Indeed, many have viewed the decision as descending like a bolt of lightning out of a clear blue sky.(8) But this is simply false. Historical support for the nationalist view goes back as far as the Republic itself, and Missouri was the climactic finale to an intense national controversy over the extent to which the treaty power could override state laws discriminating against aliens, particularly Chinese and Japanese residents of the western states.(9) Equally important, the Court decided it under the long shadow of the Treaty of Versailles, which was before the Senate at the same moment Missouri was being argued. It was well known that Versailles would soon give birth to the first human rights conventions on the problem of child labor. The Court thus self-consciously opened up the possibility that its own controversial decision in Hammer v. Dagenhart,(10) rendered only two years before Missouri, might be avoided through the ratification of an international human rights treaty.

In Part I, I set out the basic textual and structural arguments that support the nationalist view. In Part II, I turn to the history of the Missouri issue. I first consider how the problem arose and was dealt with under the Articles of Confederation. This practice provides an essential backdrop for understanding how the Framers dealt with the problem in drafting the Constitution and underscores why they believed that the federal treaty power would necessarily have to be plenary in scope. I then examine the discussions in Philadelphia, in the state ratifying conventions, and in the Federalist Papers for the evidence they provide of the Founders' purposes and understandings. Next, I turn to the post-ratification history, beginning with the great national debate provoked by the Jay Treaty in 1795-96, running through the antebellum period, and continuing through the post-Civil War period and the early twentieth century up to the Court's decision in Missouri. This survey requires extensive consideration of the practices of the political branches (especially the President and the Senate), the decisions of the Court, the recurring national debates over the question, and the views of leading commentators. In this Section, I bring out a good deal of previously unknown, or in some cases little known, historical material in an effort to shed new light on the subject.

In Part III, I consider the Missouri opinion itself. Once situated in its historical context, Holmes's heretofore opaque language is transformed into a straightforward, and profound, rehearsing of the basic arguments in favor of the nationalist view. Contrary to the speculations of even some of Holmes's most sensitive interpreters, the opinion ultimately rests on standard constitutional premises (text, structure, precedent, and history) -- indeed, originalist premises -- not on an extraordinary theory of inherent foreign affairs powers or even on a view of the Constitution as an evolving or living text. In Part IV, I turn to the post-Missouri history, including a brief look at the Bricker Amendment controversy. Finally, in Part V, I consider the most recent arguments in favor of the states' rights view, principally as articulated by Professor Curtis Bradley last year in this Review.

1. TEXT, STRUCTURE, AND THE TREATY POWER

   Missouri famously presented the question of whether the treaty power is limited to those subjects over which Congress has regulatory authority, or, more...