by whose broad strokes was hewn the highroad of a national des50 tiny. In the Foster case the Chief Justice succeeded in transforming a personal theory into a legal presumption that had consequences far beyond Marshall's original expectations. Foster v. Neilson introduced the principle of self-executing treaties without reference to any case and without reference to particular Anglo-American state practice. A treaty is a contract, Marshall declared, and not a legislative act. But the United States Constitution, he added, by means of the supremacy clause, makes a treaty "regarded in Courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision."51 From this slim sentence of personal observation, American treaty practice was transformed. The new principle was based on nothing more than Marshall's own personal belief, rather than a standard within the contemplation of the framers. A half-century later, the majority opinion in Hauenstein v. Lynham (1879) quoted verbatim the passage on the domestic application of treaties by Justice Chase in Ware v. Hylton (1796). But then, the Hauenstein decision added, the court does not concur in everything Chase wrote in the cited extract, but only makes reference to the fact that "it shows the views of a powerful legal mind at that early period, when the debates in the convention which framed the Constitution must have been fresh in the memory of the 52 leading jurists of the country. In other words, the Ware case Yet, a is useful for general interpretation and nothing more. leading American treatise on constitutional law strongly implies that Ware represents a strict limitation on the tenth amendment, whereas lauenstein never even mentioned the tenth amendment! Nor, with respect to the operation of the treaty power, did it mention any case but that of Ware--and the latter was subject to unspecified qualifications by the Hauenstein court. Thus, in little less than a century, the U.S. Supreme Court had established a pattern of constitutional analysis with reference to the treaty power and Article VI that was to continue down until the present day. Concern over what the Court was 53 early as The Chinese Exclusion Case (1888), wherein the historic common law principle of leges posteriores priores contrarias abrogant (later laws abrogate prior contradictory ones) was enunciated. Repeating (without citation) the Marshall dictum that treaties were actually contracts, and that treaties may be selfexecuting, the Chae Chan Ping court then went on to add, in dicta of its own: If the treaty operates by its own force, and relates 55 54 This remains the law today, along with the proposition that courts will always attempt to construe treaties and federal statutes "so as to give effect to both, if that can be one without violating the language of either... If this cannot be satisfactorily "56 resolved, then the last in time will take precedence. The first indication in Supreme Court jurisprudence that the substantive content of treaties may have a major domestic emphasis with respect to municipal law can be found in Geofroy v. Riggs (1889). For one hundred years following the ratification of the Constitution by the specially assembled state conventions, it was assumed that the subject matter of treaties dealt primarily, if not exclusively, with foreign affairs. In the words of Geofroy, "[t]hat the treaty power of the United States extends to all proper subjects of negotiation between our government and the government of other nations, is clear."57 But given the dicta of the prior one hundred years with respect to the nature of the treaty power, and with the United States increasingly involved in contact with other nations in one sort of formal relationship or another, treaties were likely to have domestic effects and even to contain language relating to domestic matters. A potential constitutional conflict was not outside the realm of possibility. To ensure that such situation would not occur, Justice Field, writing for an unanimous court, stressed unidentified constitutional restraints which can be applied against the treaty power. Treaty provisions, he declared in a famous phrase, cannot be ex Almost seven decades later, in Reid v. Covert (1957), the Supreme Court using its strongest language to date, though still arguably dicta, maintained that constitutional prohibitions have to be taken into account by international agreements. The majority was emphatic, if not altogether specific: "This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." But 59 there was only one authority cited--Geofroy v. Riggs. Not until 1920, in the landmark decision of Missouri v. Holland were any more principles added to treaty theory. Oliver Wendell Holmes, Jr.'s, famous opinion has become, in truth, all things to all courts (and to all commentators). As one respected expert pointedly observes: "Justice Holmes' opinion was cryptic. It is rather difficult to find out exactly what his analysis was meant to convey except that it was obvious he had a great love for migratory birds."60 Legal treatises have traditionally, erroneously, cited Missouri v. Holland as standing for the proposition that there are no substantive limits upon the treatymaking power, that treaties are an independent source of congressional authority, and that a tenth amendment limitation upon the federal treaty power does not exist. also reputable critics who are not so sure. One relatively recent study of federal and state constitutional powers accuses Holmes of indulging in a "superficial analysis" and goes on to attack his "unsound and unsupportable" rationale, particularly with reference to the limited operation of the tenth amendment. 63 61 But there are 62 The claim that "[a]ny tenth amendment limitation on the federal treaty power was flatly rejected in the landmark case of Missouri v. Holland"," is repeated by most treatise writers, but it is an incorrect analysis at best. (The same authors also maintain that Justice Field excluded tenth amendment restrictions in Geofroy v. Riggs, but his opinion never even mentioned the tenth 64 amendment.) As Professor Williams has noted, Holmes' opinion 65 in Missouri v. Holland requires close scrutiny. On the one hand, Holmes seemed to indicate "that a treaty cannot be valid if it in- . fringes the Constitution, that there are limits, therefore to the treaty-making power, and that one such limit is that what an act served to the States, a treaty cannot do." But undercuting his own argument, he then went on to add that the real question in such matters is whether a treaty "is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved." ,,66 However incomprehensible the latter statement is at first glance, the U.S. Supreme Court a mere four years later, in the case of Asakura v. Seattle (1924), enlarged on Holmes' implied tenth amendment limitations (which were only suggested in a single sentence). "The treaty-making power of the United States is not limited by any express provision of the Constitution," the Court sweepingly asserted. It then went on to declare that the treaty power "stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States. It operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the 67 courts. This is probably the most expansive claim made by the United States Supreme Court on the subject. Not without reasons have most courts and commentators shied away from citing it as controlling precedent. The nadir of treaty interpretation and the height of obscurity of language can be found in United States v. CurtissWright Export Corporation (1936), where it seems Justice Sutherland sought to discard the idea of constitutional power and substitute the notion of national inevitability. According to Sutherland, "[t]he powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with over sovereignities, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality." This was a power which was not drawn from the Constitution, but was a part of the sovereign manifestation of 68 the United States. Despite its approval by proponents of expansive federalism, 69 the Curtiss-Wright decision illustrates the dangers to the balance of power between the Federal Government and the several states, if the subject matter of all treaties did not go that far, and managed to admit that the "exclusive power of the President as the sole organ of the federal government in the field of international relations....like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."70 Nonetheless, his assessment of presidential authority is a clear illustration of the juridical dangers of runaway dicta. 71 Curtiss-Wright also laid the foundation for the elevation of executive agreements to treaty status, which was to occur the following year in United States v. Belmont (1937), in another dicta excursion of Justice Sutherland (relying on Curtiss-Wright), and by United States v. Pink (1942), in an opinion written by Chief Justice Stone. All international compacts, Stone declared, had to be treated with "similar dignity". That meant state law had to yield not only to a treaty, but also to an executive agreement, or otherwise "our foreign policy might be thwarted." Relying on Sutherland's argument in Belmont, Stone went on to assert that "the policies of the States become wholly irrelevant to judicial inquiry, when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the This represents the high watermark of judicial approbation of the presidential exercise of sovereign authority with respect to Article VI. Fifteen years later, Reid v. Covert (1957) placed both treaties and executive agreements within the ambit of the Bill of Rights. However, the majority opinion in an obscure reference back to Missouri v. Holland, also denounced the tenth amendment as a possible limitation on the treaty power by proclaiming: "the Tenth Amendment is no barrier." courts. " 73 "74 Have 190 years of dicta become truly persuasive in treaty jurisprudence, or is there still an opportunity to reverse what jurists, commentators, and the executive branch have assumed to be the tide of history? In the Reid decision, Justice Frankfurter's concurrence reminded the court that "[t]he Constitution is an organic scheme of government to be dealt with as an entirety. particular provision cannot be dissevered from the rest of the Constitution." The barriers to the operation of the tenth amend ,75 A |