Treaty-Making and the Nation: The Constitutional Foundations of the Nationalist Conception of the Treaty Power

Abstract

In Missouri v. Holland, the Supreme Court ruled that treaties are not limited to those subjects otherwise falling within the scope of Congress's legislative powers. Thus, the President and two-thirds of the Senate together can regulate matters which are "reserved" to the states from congressional control. In light of the Supreme Court's renewed federalism agenda, some have suggested that Missouri was wrongly decided and should now be overruled. At stake are principally human rights treaties. Consider a treaty prohibiting the death penalty. In light of recent decisions limiting the scope of Congress's powers under the Commerce Clause and Statute 5 of the Fourteenth Amendment, such a provision may well be beyond Congress's legislative authority. Would it nevertheless be valid if included in a treaty approved by two-thirds of the Senate?

This article seeks to provide an in-depth historical defense of Missouri. Acolytes of state's rights in foreign affairs have had only a superficial understanding of the relevant history. Although the treaty power has been the subject of relentless controversy from the beginning, throughout most of our history the dominant view has affirmed the nationalist conception endorsed in Missouri. Beginning with the early antebellum period, moreover, the issue has been inextricably bound up with the whole question of race. Although Missouri dealt with a migratory bird treaty, in fact, in the immediate background was a nationwide controversy over the power of treaties to limit the Plessy-sanctified right of the states to impose separate but equal schools on racial minorities.