Domestic Relations, Missouri V. Holland, and the New Federalism

Posted: 4 Feb 2004

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Abstract

Citing Missouri v. Holland and other cases for support, commentators suggest that the treaty power is subject to very few constitutional constraints and that the Court's recent expansion of the 11th Amendment might be circumvented through the use of this power. This article suggests that Missouri v. Holland and the other cases cited to establish the virtually plenary nature of the treaty power might be read much more narrowly than commentators imply and that the Court's current 11th Amendment jurisprudence is likely to inform any interpretation of the breadth of that power. The article discusses the Court's view that family law is paradigmatic of an area of law reserved for the states, and suggests that the current Court would hold that some areas of state family law cannot be supplanted by the federal government even via international agreement. The article concludes that the Court is unlikely to interpret the treaty power in a way which undermines core areas of state sovereignty, regrettable international consequences notwithstanding.

Keywords: Missouri v. Holland, Curtiss-Wright, treaty power, domestic relations, 11th amendment

JEL Classification: I31, J12, J13, J18, J71, K10, K33

Suggested Citation

Strasser, Mark, Domestic Relations, Missouri V. Holland, and the New Federalism. Available at SSRN: https://ssrn.com/abstract=494324

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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