71 powers, prevent a State from discharging the ordinary function of government, just as it follows from the second clause of Article VI of the Constitution, that no State can interfere with the free and unembarrassed exercise by the National Government of all the powers conferred upon it." South Carolina v. United States, 199 U. S. 447, 451; 50 L. Ed. 261. ; for, in this respect, that is, in respect to the reserved powers, the State is as sovereign and independent as the general government." Collector v. Day, 11 Wall. 125, 127; 20 L. Ed. 122. "It is a plain case of a subordinate overruling his superior, of the creature being superior to the creator. Every reputable commentator upon the Constitution from Story down to the present day, has held that the legislative powers of Congress lie in grant and are limited by such grant. This statement in effect declared that when a treaty that may need legislation to carry it into effect, has embraced a subject which Congress cannot legislate upon, because not granted the power under the Constitution, that the treaty power may come to its own assistance and grant such right to Congress, though the Constitution, the creator of both, has denied it. Such interpretation would clothe Congress with powers beyond the limits of the Constitution, with no limitations except the uncontrolled greed or ambition of an unlimited power." Tucker, Limitations Treaty-making Power, pp. 129, 130. "If we are to accept, therefore, the literal meaning of the words in Article VI, as applied to treaties, and give to them the supremacy which it is claimed the letter of the Constitution accords them, what is the result? In the first place, every power delegated to the Congress of the United States for its execution may be surrendered to the treaty power. The, purpose which the framers of the Constitution had that the imposition of taxes, the regulation of commerce, the establishment of postoffices and post-roads, the coining of 72 money, the naturalization of foreigners, and the like, should be accomplished only through the action of representatives elected by the people of the States, and the Senators representing the States, is abandoned and the powers are surrendered to the President and the Senate in the making of treaties with foreign countries; in the second place, after providing, as was their intention, for a republican form of Government, it must be presumed they deliberately inserted Article VI to change that form to the government of an oligarchy; and, thirdly, that after they had determined in their wisdom to concede to Congress powers of legislation in certain particulars, and that all else was to be left with the States or to the people, who were supposed to know better than anyone else, what was best for them in their respective localities, they deliberately reversed their action and inserted this article, which might exclude their representatives in Congress from a voice in any legislation, and give to the President and the Senate the power to uproot and destroy what had already been conceded to Congress and the States. And all this results, it is claimed, because the word "Treaty' may embrace any subject that pertains to the people as citizens of the Stat ore Nation. "St. George Tucker, Story, Rawle, Willoughby, Pomeroy, and Cooley, and every reputable writer upon the Constitution, declare that the treaty-power can do nothing which tends to destroy the Constitution itself. Can it be doubled that the power to take away the right of Congress to legislate, or the right of the people of the States to regulate their own local affairs is the power to destroy the basic principles of the Constitution of our country?" Tucker, Limitations on Treaty-making Power, pp. 92, 93. If the Federal authorities, by means of a treaty with some foreign government, could acquire and exercise the powers reserved to the states and denied to Federal authorities under the Constitution, the logical and inevitable result would be anomalous. The President and Senate could by treaty with some foreign power control the laws of a state relating to in 73 spection, quarantine, health and internal trade; they could prescribe the times and modes of elections, and force the introduction and sale of opium, intoxicating liquors or any other substance, however injurious to the health and wellbeing of a state; they could cede to a foreign power a state or any part of its territory, and destroy the securities of liberty and property as effectually as the most despotic government ever formed. But this is not all. If the treaty-making power is not within the constitutional limitations relating to the powers reserved to the states, it is not limited by any restriction of the Constitution. The Federal Government itself, as well as the several states, would be at the mercy of the President and the Senate. They could regulate foreign commerce in spite of the fact that Congress is expressly authorized to control the same. They could provide for duty rates upon articles imported from foreign nations, or admit them free of duty, although Congress has express authority to lay and collect taxes and duties. They could appropriate directly from the public treasury the public moneys in the face of the express power of Congress to originate all such appropriations. They could dispose of any part of the territory of the United States, or any of their property, without the consent of Congress, which alone has power to dispose of and make rules and regulations of the property of the United States. In short, the Federal Government would be a government of men, and not of laws. The question is not whether or not they will do these things but whether or not, under our form of government, they have the power. XI. Those who maintain that the reserved powers of the states are subject to treaties and may be taken from the states respectively, or the people, by means of a convention with some foreign power, rest their position upon the assertion that "a treaty is the supreme law of the land." If a treaty be the supreme law of the land, it has become so by construction, for the Constitution as ratified by the people made the supreme law of the land to consist of three things: 74 1st-The Constitution; 2nd-the laws of the United States which shall be made in pursuance thereof; 3rd-all treaties made or which shall be made under the authority of the United States. The Constitution is the God-head of this trinity. It yields to neither law nor treaty, nor anything else save and alone the sovereign will of its creator-the people. The powers reserved to the states respectively or to the people are, under this Constitution as sacred as the power to make treaties. Are they not even more so since they are the object of specific reservation and necessarily limit or restrict the general grant of power made to the treaty-making department of the government? Hamilton's Works, Vol. IV, p. 342; Cooley, The Forum, June, 1893, p. 397; Von Holst, Const. Law of United States, p. 202; Duer, Lectures on the Constitution Jurisprudence of the United States, (2 Ed.) p. 228. Tucker, Limitations, Treaty-making Power, pp. 128129, 135-136, 139, 93-94, 86-87; Judge Shackleford Miller, quoted in Tucker, Limitations, Treaty-making Power, pp. 21, 22; The People v. Naglce, 1 Cal. 246, 247; 59th Congress, 41 Congressional Record, Part 1, William Archer Cocke, Constitutional History of the Mr. Marcy, Moore's Int. Law Dig., Vol. V, p. 168; Butler Treaty-Making Power, Vo. I, p. 63, Sec. 37, and note. Benjamin Harrison, North American Review, January, 1901, p. 110; Story's Commentaries on the Constitution, 5 Ed., pp. 217-220; Thorp, Constitutional History, Vol. 2, Chap. 6, p. 199; Loan Association v. Topeka, 20 Wall. 655, 662-663; 75 Jefferson, Manual of Parliamentary Practice, p. 110, note 3. 4 Elliott's Debates, p. 464; Geofroy v. Riggs, 133 U. S. 266, 267. "A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution of the United States." Hamilton's Works, Vol. IV, p. 342. "When a treaty is said to be the supreme law, it is nevertheless to be understood that the Constitution, which is the highest expression of sovereign will and the authoritative representative of sovereign power in the nation, in fixing limitations upon the exercise of authority under it in regard to the subjects above indicated and many others, restrains the treaty-making power quite as much as any other. If it did not, and any treaty entered into in due form was in itself necessarily supreme law, a State might possibly by the force of it be set off from the Union to another nation, or the government might gradually and imperceptibly be overturned through a line of precedents constituting what at the time were perhaps not seen to be encroachments." Cooley, the Forum, June 1893, p. 397. "If, therefore, the supremacy of a treaty depends upon this Article, we have the right to conclude that since the supremacy accorded treaties made under the authority of the United States is the same as that accorded the laws of Congress, no greater supremacy should be accorded the one than the other, for the grant of supremacy to each is exactly the same, and if the one (the law of Congress) must conform to the Constitution, surely the other must do likewise. If the one cannot legislate on local affairs within the States because it would be unconstitutional, the other cannot barter or trade them in agreements with foreign countries for the same reason." Tucker, Lim. Treaty-Making Power, p. 139. |