The Constitution of the United States of America: Analysis and Interpretation Part 89

[161] Terrace _v._ Thompson, 263 U.S. 197 (1923).

[162] 332 U.S. 633 (1948). _See also_ Takahashi _v._ Fish and Game Comm., 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship is disallowed, both on the basis of Amendment XIV and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition Hines _v._ Davidowitz, 312 U.S. 52, 66 (1941) was relied upon.

[163] This occurred in the much advertised case of Sei Fujii _v._ State of California, 242 P. 2d, 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view.

The Charter provisions invoked in this connection [Arts. 1, 55, and 56], said Chief Justice Gibson, "We are satisfied * * * were not intended to supersede domestic legislation".

[164] Clark _v._ Allen, 331 U.S. 503 (1947).

[165] 1 Cr. 103, 109 (1801).

[166] Foster _v._ Neilson, 2 Pet. 253, 314 (1829); Strother _v._ Lucas, 12 Pet. 410, 439 (1838); Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598, 599 (1884); United States _v._ Rauscher, 119 U.S. 407, 419 (1886); Bacardi Corp. _v._ Domenech, 311 U.S. 150 (1940).

[167] The doctrine of political questions is not always strictly adhered to in cases of treaty interpretation. In the case of the "_Appam_" it was conspicuously departed from. This was a British merchant vessel which was captured by a German cruiser early in 1916 and brought by a German crew into Newport News, Virginia. The German Imperial Government claimed that under the Treaties of 1799 and 1828 between the United States and Prussia, the vessel was ent.i.tled to remain in American waters indefinitely. Secretary of State Lansing ruled against the claim, and the Supreme Court later did the same, but ostensibly on independent grounds and without reference to the att.i.tude of the Department of State. The Steamship Appam, 243 U.S. 124 (1917). Although it is a principle of International Law that, as respects the rights of the signatory parties, a treaty is binding from the date of signature, a different rule applies in this country as to a treaty as "law of the land" and as such a source of human rights. Before a treaty can thus operate it must have been approved by the Senate. Haver _v._ Yaker, 9 Wall. 32 (1870).

[168] _See_ Crandall, Treaties, Their Making and Enforcement, (2d ed.), 165-171, with citations.

[169] Madison Writings (Hunt ed.), 264.

[170] "We express no opinion as to whether Congress is bound to appropriate the money * * * It is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty" (the Treaty of Paris of 1899 between Spain and the United States). De Lima _v._ Bidwell, 182 U.S. 1, 198 (1901). For a list of earlier appropriations of the same kind, _see_ Crandall, 179-180, n. 35.

[171] Willoughby, On the Const.i.tution, I (2d ed., New York, 1929), 558.

_See also_ H. Rept. 2630, 48th Cong., 2d sess., for an exhaustive review of the subject.

[172] Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598-599 (1884). The repealability of treaties by act of Congress was first a.s.serted in an opinion of the Attorney General in 1854 (6 Op. Atty. Gen.

291). The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor _v._ Morton, 23 Fed. Cas. No.

13,799 (1855). The case turned on the following question: "If an act of Congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied?"

Citing the supremacy clause of the Const.i.tution, Justice Curtis said: "There is nothing in the language of this clause which enables us to say, that in the case supposed, the treaty, and not the act of Congress, is to afford the rule. Ordinarily, treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts, by which they agree to regulate their own conduct. This provision of our Const.i.tution has made treaties part of our munic.i.p.al law. But it has not a.s.signed to them any particular degree of authority in our munic.i.p.al law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. * * * [This] is solely a question of munic.i.p.al, as distinguished from public law. The foreign sovereign between whom and the United States a treaty has been made, has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done, is, exclusively, for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department, or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. If the people of the United States were to repeal so much of their const.i.tution as makes treaties part of their munic.i.p.al law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern. * * * By the eighth section of the first article of the Const.i.tution, power is conferred on Congress to regulate commerce with foreign nations, and to lay duties, and to make all laws necessary and proper for carrying those powers into execution. That the act now in question is within the legislative power of Congress, unless that power is controlled by the treaty, is not doubted. It must be admitted, also, that in general, power to legislate on a particular subject, includes power to modify and repeal existing laws on that subject, and either subst.i.tute new laws in their place, or leave the subject without regulation, in those particulars to which the repealed laws applied. There is therefore nothing in the mere fact that a treaty is a law, which would prevent Congress from repealing it. Unless it is for some reason distinguishable from other laws, the rule which it gives may be displaced by the legislative power, at its pleasure. * * * I think it is impossible to maintain that, under our Const.i.tution, the President and Senate exclusively, possess the power to modify or repeal a law found in a treaty. If this were so, inasmuch as they can change or abrogate one treaty, only by making another inconsistent with the first, the government of the United States could not act at all, to that effect, without the consent of some foreign government; for no new treaty, affecting, in any manner, one already in existence, can be made without the concurrence of two parties, one of whom must be a foreign sovereign. That the Const.i.tution was designed to place our country in this helpless condition, is a supposition wholly inadmissible. It is not only inconsistent with the necessities of a nation, but negatived by the express words of the Const.i.tution. * * *" _See also_ The Cherokee Tobacco, 11 Wall. 616 (1871); United States _v._ Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller _v._ Dominguez, 130 U.S. 238 (1889); Chae Chan Ping _v._ United States, 130 U.S. 581, 600 (1889); Whitney _v._ Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting _v._ United States, 149 U.S. 688, 721 (1893); etc. "Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate." La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 460 (1899). _Cf._ Reichert _v._ Felps, 6 Wall. 160, 165-166 (1868), where it is stated obiter that "Congress is bound to regard the public treaties, and it had no power * * * to nullify [Indian] t.i.tles confirmed many years before * * *"

[173] United States _v._ Schooner Peggy, 1 Cr. 103 (1801).

[174] Foster _v._ Neilson, 2 Pet. 253 (1829).

[175] United States _v._ Percheman, 7 Pet. 51 (1833).

[176] Willoughby, On the Const.i.tution, I, (2d ed.), 555.

[177] 288 U.S. 102 (1933).

[178] Ibid. 107-122.

[179] 124 U.S. 190 (1888).

[180] It is arguable that the maximum _leget posteriores_ is not the most eligible rule for determining conflicts between "laws of the United States * * * made in pursuance thereof" (i.e. of the Const.i.tution) and "treaties made * * * under the authority of the United States". It may be that the former, being mentioned immediately after "this Const.i.tution" and before "treaties," are ent.i.tled always to prevail over the latter, just as both acts of Congress and treaties yield to the Const.i.tution.

[181] 1 Stat. 578.

[182] 4 Dall. 37 (1800).

[183] Crandall, Treaties (2d ed.), 458; _See_ Messages and Papers of the Presidents, IV, 2245; and Benton, 15 Abridgment of the Debates of Congress, 478. Mangum of North Carolina denied that Congress could authorize the President to give notice: "He entertained not a particle of doubt that the question never could have been thrown upon Congress unless as a war or _quasi_ war measure. * * * Congress had no power of making or breaking a treaty." He owned, however, that he might appear singular in his view of the matter. Ibid. 472.

[184] Crandall, 458-462; Wright, The Control of American Foreign Relations, 258.

[185] 38 Stat. 1164.

[186] Crandall, 460.

[187] _See_ Jesse S. Reeves, The Jones Act and the Denunciation of Treaties, 15 American Journal of International Law (January, 1921) 33-38. Among other precedents which call into question the exclusive significance of the legislative role in the termination of treaties as international conventions is one mentioned by Mr. Taft: "In my administration the lower house pa.s.sed a resolution directing the abrogation of the Russian Treaty of 1832, couched in terms which would have been most offensive to Russia, and it did this by a vote so nearly unanimous as to indicate that in the Senate, too, the same resolution would pa.s.s. It would have strained our relations with Russia in a way that seemed unwise. The treaty was an old one, and its construction had been constantly the subject of controversy between the two countries, and therefore, to obviate what I felt would produce unnecessary trouble in our foreign relations, I indicated to the Russian amba.s.sador the situation, and advised him that I deemed it wise to abrogate the treaty, which, as President, I had the right to do by due notice couched in a friendly and courteous tone and accompanied by an invitation to begin negotiations for a new treaty. Having done this, I notified the Senate of the fact, and this enabled the wiser heads of the Senate to subst.i.tute for the house resolution a resolution approving my action, and in this way the pa.s.sage of the dangerous resolution was avoided."

The resolution in question, it should be added, was a joint resolution, and purported to ratify the President's action. The President himself had asked only for ratification and approval of his course by the Senate. William Howard Taft, The Presidency (New York, 1916), 112-114.

Two other precedents bearing on outright abrogation of treaties are the following. The question whether to regard the extradition article of the Treaty of 1842 with Great Britain as void on account of certain acts of the British Government was laid before Congress by President Grant in a special message dated June 20, 1876, in the following terms: "It is for the wisdom of Congress to determine whether the article of the treaty relating to extradition is to be any longer regarded as obligatory on the Government of the United States or as forming part of the supreme law of the land. Should the att.i.tude of the British Government remain unchanged, I shall not, without an expression of the wish of Congress that I should do so, take any action either in making or granting requisitions for the surrender of fugitive criminals under the treaty of 1842." Messages and Papers of the Presidents, IX, 4324, 4327. Three years later Congress pa.s.sed a resolution requiring the President to abrogate articles V and VI of the Treaty of 1868 with China. President Hayes vetoed it, partly on the ground that "the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Const.i.tution. * * *" At the same time, he also wrote: "The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Const.i.tution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Const.i.tution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body."

Ibid. 4470-4471. The veto would seem to have been based on a quibble.

[188] 229 U.S. 447 (1913).

[189] Ibid. 473-476.

[190] Clark _v._ Allen, 331 U.S. 503 (1947).

[191] Charlton _v._ Kelly, 229 U.S. 447 (1913).

[192] Fed. Cas. No. 13,799 (1855).

[193] 2 Pet. 253, 309 (1829).

[194] Acts of March 2, 1829 and of February 24, 1855; 4 Stat. 359 and 10 Stat. 614.

[195] In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation was later reenacted as Rev. Stat. ---- 4083-4091.

[196] 18 U.S.C.A. ---- 3181-3195.

[197] Baldwin _v._ Franks, 120 U.S. 678, 683 (1887).

[198] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the Court in Prigg _v._ Pennsylvania, 16 Pet. 539 (1842), in the following words: "Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfil all the obligations of treaties." Ibid. 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power "to carry into effect rights expressly given and duties expressly enjoined" by the Const.i.tution.

Ibid. 618-619. But the treaty-making power is neither a right nor a duty, but one of the powers "vested by this Const.i.tution in the Government of the United States." Article I, section 8, clause 18.

[199] Geofroy _v._ Riggs, 133 U.S. 258 (1890). _See also_ Fort Leavenworth Railroad Co. _v._ Lowe, 114 U.S. 525, 541 (1885), which is cited in the Field opinion in support of the idea that no cession of any portion of a State's territory could be effected without the State's consent. The statement is the purest obiter.

[200] Ibid. 267.

[201] The majority of the cases, as was pointed out earlier, dealt with the competence of the treaty-making power to grant aliens the right to inherit real property contrary to State Law. The nearest the Court ever came to lending countenance to the State Rights argument in this connection was in Frederickson _v._ Louisiana, 23 How. 445 (1860). _See_ ibid. 448.

[202] 252 U.S. 416 (1920).

[203] Ibid. 433-434.

[204] Ibid. 435.

[205] 299 U.S. 304 (1936).