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The Commoner
VOLUME 13, NUMBER 2j
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Address Desk B, Commoner Office,
Lincoln, Neb.
Extent of the Supremacy of Treaties
BARGAIN OFFER
for Limited Time to New or Renewing Subscribers
THE COMMONER m THRICE-A-WEEK
NEW YORK WORLD, both
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Addre Order to THE COMMONER, Lincoln, Nebr
An interesting letter has been
written to tho Louisville (Ky.)
Courier-Journal by William C. Colo
man of Baltimore, Md. Tho letter
relates to the "extent of the supre
macy of the treaty" and is repro
duced in The Commoner because It
is likely to be interesting to Com
moner readers. It must be said that
this reproduction does not neces
sarily commit The Commoner to any
particular view expressed by Mr.
Coleman. Some otner aTticies reus
ing to this same subject will be re
produced. Mr. Coleman's letter
follows:
TTnrior tho nronosed California
anti-alien land law, now causing so
much interest throughout th0 coun
try, aliens ineligible to citizenship,
that is, all those neither of the Cau
casian race nor of African descent,
can not own land in California. It
is not clear that this legislation
would be a violation of our treaty of
1911 with Japan, for the ownership
specifically accorded under that
of land is not one of the rights
specifically accorded under that
treaty. Furthermore, whatever
rights are accorded under it are
stated to be reciprocal, and Ameri
cans are forbidden to own land in
Japan. However, the present agita
tion brings once more prominently
before us a most important question
of constitutional law academic
though it may be for the moment
namely, What is the extent of the
supremacy of treaties over state
laws?
There are three main theories of
constitutional interpretation in deal
ing with this question. According to
one theory the theory of the states'
rights advocate the treaty-making
power is derived from the constitu
tion, and therefore the exercise of
that power must be limited by the
grants of that instrument. Accord
ing to a second theory the extreme
federalist theory the treaty-making
power is inherent in sovereignty, and
is therefore without any limitation.
There is still a third theory an in
termediate theory which declares
that although tho theaty-making
power is derived from grant, and
not from sovereignty, nevertheless
that grant is without limitation by
the very words of the sixth article of
the constitution, which recites that
"All treaties made or which shall be
made under the authority of the
United States, shall be the supreme
law .of tho land."
While, the supreme court has never
declared a treaty void, the first
theory is believed to be the sound
one, although the language almost
invariably used in the numerous de
cisions of the supreme court would
seem on its face to sustain the last
named theory. But these decisions
have dealt with only a few of the
many questions that can arise. The
more difficult questions have never
been adjudicated. The second theory
has no support in tho decisions.
We must remember that ours is a
dual government, with certain pow
ers expressly granted by the consti
tution to the central government.
and the residuary powers expressly
left to the states. One of these
powers so granted to the central gov
ernment is the treaty-making power.
This is essentially a power to deal
with parties, whilo all other powers
granted to tho federal government
or reserved to the states are powers
to ttoai with subjects. It is the fact
that the contract is made with a sov
ereign nation, that is, with a certain
party, that constitutes it a treaty
On the other hand, it is the nature
of tho subject legislated upon which
brings it within the power of con
gress or relegates it to the states.
Conceivably the president and the
senate, in whbm tho treaty power
exclusively vests, can enter into a
treaty with any party and upon any
subject. But whether this subject
is a proper one for treaty negotia
tions depends under our form of gov
ornment not upon a determination of
whether the contracting parties have
solemnly declared that it shall be
but whether under our constitution
it can be a subject for treaty negotla
tions. In other words, while one na
tion in dealing with another may not
be required to know, and therefore
may not be held to bo bound by the
peculiar constitutional structure oE
the other nation, if, however, there
are certaian limitations, expressed
or implied, upon our government's
treaty-making power, these limita
tions can not be overridden. There
fore, if the national government has
no power to make a particular
treaty, the argument that a state
has actually or impliedly consented
to the treaty, by virtue of its equal
representation in the senate, becomes
immaterial.
One of the great weaknesses of the
confederation which preceded the
formation of the union under our
present constitution was that the
central government, although exclu
sively clothed with the treaty-making
power, had no power to enforce
treaties against the will of the indi
vidual states. The framers of our
constitution zealously sought to cure
this defect, as both the debates in
the constitution, seems at first blush
very words of the constitution itself
show. The meaning of the word
"supreme," as used in article 6 of
the constitution, seems at first blush
plain enough. But acts of congress
and treaty provisions stand under
that article on an equal footing.
In fact, the last expression of tho
federal will, whether it be by statute
by treaty, must prevail. Since
or
therefore neither more nor less effi
cacy can be claimed for a' treaty pro
vision than for an act of congress,
is it not contradictory to say that
the treaty power knows no limita
tions whatsoever in relation to state's
rights, or the exercise by the state of
what is commonly known as its po
lice powers broadly speaking, the
power over the health, morals, safety
and general welfare of its people?
Congress has power to regulate in
terstate commerce, for example, but
if it attempts to extend its regula
tion so as to embrace intrastate com
merce, such action is void. Like
wise congress may prohibit the move
ment of certain articles in interstate
commerce, for example, but if it at
tempts to extend its regulation so as
to embrace intrastate commerce such
action is void. Likewise congress
may prohibit tho movement of cer
tain articles in interstate commerce,
but it can not simply by virtue of
this power prohibit the manufacture
of these articles within the boun
daries of the individual states. Again
congress, having exclusive power
over the mails and the postal system
of our country, could conceivably
say that no article, the product r
manufacture of child labor, shall be
transmitted by parcel post, but it
could not say that children shall not
be employed in the states. If this
be true, can we not equally imagine
a treaty ratified in all good faith-
which would similarly transcend the
proper bounds of federal jurisdic
tion? There are two broad classes of
disabilities of aliens. The first in
cludes civil rights; the second, politi
cal rights. In regard to civil rights
the supreme court has time ana
again decided that a treaty may
properly control the right of aliens
to be protected against confiscation
nf Hohta dim thorn? to hold, enjoy
) and inherit property; and to engage