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It is submitted that the theory of concurrent powers has no place in a case such as that under discussion.
If the foregoing arguments be sound it would seem that the only reasonable conclusion is that the states and the people in reserving to themselves the powers and rights specifically set out in the first eight amendments, and comprehended in general language in the ninth and tenth, intended to reserve them not only against Congress, which all admit, and which is the most responsive to their immediate will, but against the President and Senate as well, who, while less responsive to the wishes of the people, were chosen as the repository of this power largely because they could act with secrecy and dispatch."
The question whether by the reservation of the power to make agreements, with the consent of Congress, the states intended to deprive the federal government of the power to make treaties concerning their reserved rights, has never been raised in the courts. In Virginia v. Tennessee, 59 however, the court, speaking through Mr. Justice Field, in contrasting the federal power to make treaties and the power of the states to make agreements, enumerates as properly falling within the latter power, those things which are among the reserved rights of the states. After saying that a state might enter into an agreement with another state, even without the consent of Congress, to purchase land within its domain belonging to the other state, or to transport goods over a canal owned by such other state, or to drain a malarious district on the border line of the two states, or to provide means to prevent an invasion of pestilence; he proceeds: “ 'Looking at the clause in which the terms "compact" or "agreement” appear, it is evident the
* Washington's Message to H. of R., March 30, 1796, quoted in Butler, Treaty-Making Power, 428, n.
Rule xxxvi, clause 3 of the standing rules of the Senate provides : "All treaties which may be laid before the Senate, and all remarks, votes and proceedings thereon shall also be kept secret, until the Senate shall by their resolution, take off the injunction of secrecy, or unless the same shall be considered in open Executive session." Crandall, 75.
148 U. S. at page 519.
prohibition is directed to the formation of any combination tending to increase the political power in the states, which may encroach upon or interfere with the just supremacy
of the United States. Story, in his Commentaries (§ 1403), referring to a previous part of the same section of the constitution in which the clause in question appears, observes that this language "may be more plausibly interpreted from the terms used, 'treaty, alliance, or confederation,' and upon the ground that the sense of each is best known by its association (noscitur a sociis) to apply to treaties of a political character, such as treaties of alliance for purposes of peace and war, and treaties of confederation, in which the parties are leagued for mutual government, political co-operation, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges;" and that "the latter clause, 'compacts and agreements,' might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty, such as questions of boundary, interests in land situate in the territory of each other, and other internal regulations for the mutual comfort and convenience of states bordering on each other.” And he adds: "In such cases the consent of Congress may be properly required, in order to check any infringement of the rights of the national government; and, at the same time, a total prohibition to enter into any compacts or agreement might be attended with permanent inconvenience or public mischief.”'
Arguments for the supremacy of the treaty-making power over the reserved rights of the states, founded on the necessity for such power in case of a disastrous war need not be considered. It is an old maxim that “inter armes leges silent." The maxim is that the laws are "silent," however, not non-existent. It may be found necessary to take action in the prosecution of a war which cannot be justified on constitutional grounds, as was done certainly on one side or the other in our late civil war, but that does not make the action taken constitutional. The argument proves too
nuuch, for the same necessity may exist for changing our present framework of government, or for abolishing the constitution itself, yet it would not be claimed that the treaty-making power has this extent, normally.
If the argument from necessity is permissible it could be proven that the power of Congress likewise has no limitations or that the treaty-making power rests in a majority of the states in arms, not in the President and two-thirds of the Senate, where the constitution places it.
By the English constitution the rights of a British subject cannot be ceded or extinguished by the treaty-making power without the sanction of parliament.68
By Art. LXVIII. of the Belgian constitution a treaty that binds Belgians individually is not effective without the assent of the chambers.54
Art. LIX. of the constitution of the Netherlands provides that treaties that contain any provision concerning legal rights may be ratified by the King only after the approval of the States-General. 50
In Austria the consent of the Reichsrath is necessary to a treaty imposing obligations on individual subjects. 56
The King of Spain must be authorized by a special law before he can make a treaty that may be binding individually on Spaniards.67
The rights reserved by the tenth amendment are usually spoken of as the reserved rights of the states, but they are more than that, they are the reserved rights of the people as well. The amendment reads, “The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The reserved rights of the states are valuable because they secure local self-government to the people, and, with the limitations prescribed by the state constitution
* See Crandall, 159. "Crandall, 187. " Crandall, 190. Crandall, 200. Crandall, 205.
against the action of the state government, secure to the citizens the enjoyment of certain rights which the AngloSaxon has always held dear. If these rights are not secure from the treaty-making power, then since a constitutional treaty is superior to a state constitution, the most sacred rights of the people, those they have forbidden Congress, the courts, national and state, and their own legislatures to infringe, are at the mercy of the President and two-thirds of a quorum of the Senate. If this is true then the citizen, of the United States, with all his boasted constitutions, and checks and balances, is less well protected in his fundamental rights than the citizens of most of the monarchies of Europe."
WILLIAN E. MIKELL. University of Pennsylvania.
"In view of the fact that this article parallels in some degree an article on the same general subject written by Mr. Charles P. Anderson, and published in vol. i, pt. 2 of the "American Journal of International Law," it seems proper to say that the present writer was unaware of the existence of Mr. Anderson's article until after the present article was in type. It may also be added that the conclusions reached in the present article differ radically from the views expressed by Mr. Anderson.