nesses. Thus the treaty with Prussia of 1785 (8 Stat. 84, art. II) provides that "The subjects of His Majesty the King of Prussia may frequent all the coasts and countries of the United States of America, and reside and trade there in all sorts of produce, manufactures, and merchandise," and gives the same rights to American citizens in Prussia. The treaty with the Netherlands of 1782 (8 Stat. 32) gave all subjects and inhabitants of either party the right "to manage themselves, their own business' (art. IX) and empowers them "to employ such advocates, attorneys, notaries, solicitors, or factors, as they shall judge proper” (art. VII). (See also treaty with Sweden of 1783, 8 Stat. 60, 78, separate art. IV.) Later treaties of friendship have contained provisions more broadly and more explicitly guaranteeing reciprocal rights to subjects of either party to engage in businesses and professions and to be free from discriminatory treatment. Such provisions have been held to override inconsistent State or municipal legislation (e. g., Asakura v. Seattle, 265 U. S. 332 (1924) (treaty of 1911 with Japan guaranteeing right to engage in "trade" held to override a municipal ordinance of Seattle, Wash., requiring pawnbrokers to be citizens of the United States); In re Tiburcio Parrott, 1 Fed 481 (C. C. Calif. 1880) (treaty with China of 1868 giving Chinese subjects "the same privileges, immunities, and exemptions in respect to travel, or residence as may be there enjoyed by the citizens or subjects of the most favored nation" held to override a provision of the California constitution, and statutes enacted pursuant thereto, forbidding corporations chartered by the State from employing aliens); In re Lee Sing, 43 Fed. 359 (C. C. N. D. Calif. 1890) (same treaty held to override municipal ordinance requiring Chinese to move to a special segregated area); Cf. Jordan v. Tashiro, 278 U. S. 123 (treaty of 1911 with Japan held to permit ownership of land by a corporation owned by Japanese citizens)).16

Some of these early treaties also contained provisions guaranteeing freedom of religion. Thus the treaty with the Netherlands of 1782 (8 Stat. 32, 34, art. IV) provides that:

"There shall be an entire and perfect liberty of conscience allowed to the subjects and inhabitants of each party, and to their families, and no one shall be molested in regard to his worship, provided he submits as to the public demonstration of it, to the laws of the country.

17

Similar provisions are contained in the treaty with Sweden of 1783 (8 Stat.. 60, 62, art. V), and the treaty with Prussia of 1785 (1 Stat. 84, 90, art. XI), as well as in numerous later treaties.

Another common provision of such treaties of commerce and friendship is one allowing consuls of a foreign state to apply to American courts for the delivery of deserters from the vessels of that state (e. g., convention with France of 1788, 8 Stat. 106, 112, art. IX).18 A like provision of the treaty with Russia of 1832 was held, in Tucker v. Alexandroff (183 U. S. 424 (1902)) to require the surrender to Russian authorities of a declarant alien.19 Closely related to the foregoing are provisions for extradition, the first of which was apparently that contained in the treaty with Great Britain of 1794 (8 Stat. 116, 129, art. XXVII),20 providing for the surrender by either party of all "persons" charged with stated crimes committed in the jurisdiction of the other. The power to enter into such treaties has, so far as appears, never been questioned. (See Holmes v. Jennison, 14 Pet. 540, 569-570, 586, 588 (1840); Matter of Metzger, 5 How. 176, 187-188 (1847); Factor v. Laubenheimer, 290 U. S. 276.) And it is well settled that, where

16 In other cases treaty provisions have been construed as inapplicable, but the fact that they would override State law if applicable was not doubted (e. g., Clark v. Deckebach, 274 U. S. 392 (1927) (provisions of treaties with England of 1815 and 1827 giving "merchants and traders" "protection and security for their commerce" not violated by ordinance denying to aliens the privilege of operating pool and billiard rooms); Terrace v. Thompson, 263 U. S. 197 (treaty with Japan held not to conflict with alien land law prohibiting ownership of land for farming purposes); Heim v. McCall, 239 U. S. 175 (treaty with Italy of 1871, guaranteeing Italian citizens equality of treatment and "constant security and protection for their persons and property" held not to preclude New York from providing that only citizens be employed on public work); Patsone v. Pennsylvania, 232 U. S. 138 (same treaty held not to preclude Pennsylvania from denying aliens privilege of killing game)).

17 The treaty provides further that when "subjects or inhabitants of either party should die in the territory of the other," liberty should be given "to bury them in the usual burying places or in decent and convenient grounds to be appointed for that purpose." 18 For steps taken by the Continental Congress to obtain the arrest and delivery to the consul of a French captain, see 34 Journal of the Continental Congress, 212, 217–222. 19 Four justices dissented as to the construction of the treaty, holding that the alleged deserter had not been a member of the crew of a Russian vessel.

20 The action of President Adams in directing a judge to surrender one Jonathon Robbins to British authorities was approved in the House of Representatives after very extended discussion (10 Annals of Congress, 511, 515, 526, 531, 542-621 (1800)).

the treaty so provides, an American citizen lawfully can be extradited to some other country to be tried in accordance with the laws of that country for an offense committed there (Neely v. Henkel (No. 1), 180 U. S. 109, 123 (1901); Charlton v. Kelly, 229 U. S. 447, 465-469 (1913); see Valentine v. U. S. ex rel. Neidecker, 299 U. S. 5, 7 (1936)).

21

Mention should perhaps also be made of treaties giving consular officials certain judicial powers. Thus the convention with France of 1788 (8 Stat. 106) empowers French consuls in the United States to inventory, liquidate, and sell personal estates left by subjects or citizens of France, delivering the proceeds to the lawful heirs after paying any debts contracted (art. V), to adjudicate all disputes arising within the United States between subjects of France (art. XII), and to exercise police powers over French vessels (art. VIII). In Wildenhus's case (120 U. S. 1, 17-18 (1887)), the Court said that if such a treaty gave a consular official exclusive jurisdiction over a homicide committed on a vessel in port, the treaty would preclude prosecution for the offense by a State court; it held, however, that the treaty in question did not preclude prosecution by the State of New Jersey. (See also The Betsey, 3 Dall. 5, 15.)

II. THE PRESENT PROPOSALS

A. Proposals designed to limit the scope of the treaty power

Probably the most far reaching of the present proposals are those designed to limit the subject matter to which treaties may relate. Those proposals are three. Sectoin 1 of Senate Joint Resolution 130 would provide that no treaty or executive agreement should be made "respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof." Section 2 of that resolution would prohibit any treaty from vesting in any international organization or foreign power any of the governmental powers of the United States. And the American Bar Association proposal would in effect provide that no treaty could have effect as internal law in the United States unless it came within the legislative powers delegated to Congress.

The framers of the Constitution carefully refrained from stating any limitation on the scope of the treaty power. As Madison stated in the Virginia Convention (3 Elliott's Debates 514-515):

"I think it [the treaty power] rests on the safest foundation as it is. The object of treaties is the regulation of intercourse with foreign nations, and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which Congress could exercise this authority? The definition might, and probably would, be effective. They might be restrained, by such a definition, from exercising the authority where it would be essential to the interest and safety of the community. It is most safe, therefore, to leave it to be exercised as contingencies may arise." (See also id., 363, 504 (Randolph).)

In this connection it should be emphasized that since the treaty power is exclusively Federal, and is denied to the States, any limitation on that power would weaken the United States as a whole in its dealings with other nations. As Justice Sutherland states in United States v. Curtis-Wright Corp. (299 U. S. 304, 318):

"As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.' Since any constitutional limitation of the scope of treaties would weaken the position of this Nation at the international bargaining table, it is incumbent on the proponents of such a limitation to show a definite and compelling need for it. That showing is not made by pointing to particular treaties, not yet ratified or even submitted for ratification, which rightly or wrongly are said to be objectionable. It would be as appropriate to urge that because Congress may pass, and doubtless has passed, some bad laws it should be deprived of legislative power. If the United Nations conventions to which objections have been made by some of the proponents of these amendments are as bad as they are said to be, they will presumably not be ratified. And certainly there is no warrant for lightly assuming that the President and two-thirds of the Senate, all of whom are bound by oath to support the Constitution, would seek to subvert it. It is

Charlton v. Kelly holds that provisions for extradition of all "persons" charged with crime includes citizens of the asylum country; it points out that the majority of extradition treaties make an exception for citizens, but that many contain no such exception,

perhaps not amiss to repeat Madison's answer to a comparable suggestion (3 Elliott's Debates 515):

"It is to be presumed that, in transactions with foreign countries, those who regulate them will feel the whole force of national attachment to their country. The contrast being between their own nation and a foreign nation, is it not presumable they will, as far as possible, advance the interest of their own country?"

Two general propositions seem to be the foundation for the assertion that the treaty power has in recent years become a new kind of threat to our liberties and constitutional system. The first is the suggestion that the "use of the treaty as an instrument of domestic legislation" (statement of Senator Bricker filed with the subcommittee of the Senate Committee on the Judiciary, May 21, 1952) is a novel development which needs to be stopped. It is said that "until recently, treaties were restricted to their traditional field of agreements between sovereign nations imposing duties and obligations on the contracting states and not on individual citizens" (American Bar Association report of standing committee on peace and law through United Nations, February 1, 1952, p. 11 (hereinafter referred to as ABA committee report)). The facts are directly to the contrary. The framers of the Constitution fully recognized that treaties could be laws which would have domestic application and control the activities of citizens and residents of the United States. One of the principal occasions for the drafting of the new Constitution was that States, by their domestic legislation, were violating treaties and thus risking international disputes. To meet that problem, they provided that treaties should be the supreme law of the land, that State judges should be bound by them, and that Federal courts should have jurisdiction of cases or controversies involving individuals which arose under them. It was because treaties were "to have the operation of laws" that it was urged they should be approved by the House as well (2 Farrand, Records of the Federal Convention, 538), and the same consideration was urged to justify the participation of the Senate in the treaty-making process (The Federalist, No. 75 (Hamilton)). And the substance of many of the early treaties (see discussion in point I C) clearly shows how frequently and widely they affected individual rights of citizens as well as resident aliens, rights which otherwise would be the subject of State legislation.

The second suggestion is the fear of a "superstate" into which this Nation is said to be in danger of being absorbed. Contentions that under the treaty power the President and Senate could destroy the United States or undermine its basic constitutional structure are not new. For example, fears that the President and 10 Senators could by treaty dismember the United States (3 Elliott's Debates 221, 610) or give up the rights of navigation in the Mississippi (of vital interest to Kentucky, then a part of Virginia) (3 Elliott's Debates 341-365) were among the principal objections urged to the proposed Constitution at the Virginia convention. (See also 4 Elliott's Debates 115 (North Carolina); 2 Farrand, Records of the Federal Convention, 297.) Similarly in the debate in the House in 1796, fears were repeatedly voiced that the treaty power could absorb all legislative power (e. g., 5 Annals of Congress 467) and could amend the Constitution (id., 537). The answer to such contentions, then as now, has been that the President and Senate can "make no treaty which shall be repugnant to the spirit of the Constitution" (3 Elliott's Debates 507 (Nicholas); see id., 504 (Randolph)). The treaty power is not wholly unlimited. Treaties cannot violate specific prohibitions of the Constitution, nor can they subvert its essential nature. These limitations are more fully discussed in connection with specific proposals to which they relate.

Section 1 of Senate Joint Resolution 130 would prohibit treaties "respecting," or "abridging or prohibiting the free exercise" of, "rights of citizens of the United States protected by this Constitution." The section is urged primarily as necessary to prevent abridgment of the essential civil liberties of the Bill of Rights. It is said that the Constitution as it stands, although protecting those liberties from invasion by Congress or the States, does not protect them from invasion by exercise of the treaty power. We believe that is demonstrably not so. The courts have repeatedly emphasized that a treaty may not offend specific prohibitions of the Constitution. The classic statement is that of Geofroy v. Riggs (133 U. S. 258, 267 (1890)):

22 One of the early versions of the supremacy clause provided that treaties should be the supreme law of the States "so far forth as those Acts or Treaties shall relate to the sald States or their Citizens" (1 Farrand, Records of the Federal Convention, 243-245).

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent (Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541). But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country (Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 California 381)." 23

Similar statements have been repeatedly made. (See, for example, Doe, et al. v. Braden, 16 How, 635, 657) ("The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.") ; The Cherokee Tobacco, 11 Wall. 616, 620-621 ("It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government."); Missouri v. Holland, 252 U. S. 416, 433 ("We do not mean to imply that there are no qualifications on the treaty-making power." "The treaty in question does not contravene any prohibitory words to be found in the Constitution."); United States v. Minnesota, 270 U. S. 181, 208 ("The decisions of this Court generally have regarded treaties as on much the same plane as acts of Congress, and as usually subject to the general limitations in the Constitution.").24 See, to the same effect, Jones v. Walker, Fed. Cas. No. 7,507, 13 Fed. Cas. at p. 1062; Amaya, et al. v. Stanolind Oil & Gas Co., 158 F. 2d 554, 556 (C. A. 5), certiorari denied, 331 U. S. 808; United States v. Thompson, 258 Fed. 257, 268 (E. D. Ark); Indemnity Insurance Co. of North America v. Pan American Airways, 58 F. Supp. 338, 339, 340 (S. D. N. Y.).)

Specific issues involving a claim of contravention of express constitutional guaranties have not been lacking. Thus, in Prevost v. Greneaux (19 How. 1, 7 (1856)) the Court held that a tax which had accrued to a State was not divested by a subsequent treaty, stating "certainly a treaty, subsequently made by the United States with France, could not divest rights of property already vested in the State." (Compare United States v. Minnesota, 270 U. S. 181, 208, 209.) In Brown v. Duchesne (19 How. 183, 197) the Court stated that a treaty could not provide for the taking of private property without just compensation. In In re Ross (140 U. S. 453) a contention was made that a treaty and implementing statute, providing for trial by a consular court of crimes committed by American citizens in Japan violated various constitutional guaranties of fair trial. The Court rejected the contention, not by stating that the treaty was above the Constitution, but by holding that the constitutional guaranties did not extend to crimes committed abroad. Extradition of American citizens has been sustained on like reasoning (Neely v. Henkel (No. 1), 180 U. S. 109, 122-123). Similarly, in Missouri v. Holland (252 U. S. 416) the contention that a treaty and implementing statute violated the tenth amendment was rejected on the ground that since the treaty power was expressly delegated to the Federal Government, its exercise did not infringe the reservation to States of powers "not delegated." (See also Stutz v. Bureau of Narcotics, 56 F. Supp. 810 (N. D. Cal.).)

25

It has been suggested, however, that there is doubt as to the power of the courts to review the validity of a treaty. The suggestion is rested in part on

23 The framers of the Constitution were equally explicit. Thus, to Patrick Henry's fears of treaties "infringing our liberties" (3 Elliott's Debates 503), Nicholas responded, at the Virginia convention, that no treaty could be made which was repugnant to the spirit of the Constitution (id. 507). Similarly, to Abbott's fears of a treaty establishing the Roman Catholic religion (4 Elliott's Debates 192), Iredell responded, at the North Carolina convention, that "the power to make treaties can never be supposed to include a right to establish a foreign religion among ourselves, though it might autholite a toleration of others" (id., 194).

24 Compare Tucker v, Alexandroff (183 U. S. 424, 437), stating that treaties should be liberally construed so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence." 25 Neely v. Henkel involved, not a treaty, but a statute which provided for extradition either pursuant to extradition treaties or of offenses committed in foreign territory occupied by United States forces. The principles there stated have been applied in cases under extradition treaties. (See Wright v. Henkel, 190 U. S. 40, 53; Charlton v. Kelly, 229 U. S. 447.)

the fact that article VI of the Constitution declares that laws made "in Pursuance" of the Constitution and treaties made "under the Authority of the United States" to be the supreme law of the land. This difference in phraseology is readily explained by the fact that the framers intended that treaties "made, or which shall be made" to be binding; that is, they wanted the supremacy clause to extend not only to treaties which might in the future be made under the new constitution, but also to treaties which had in the past been made under the Articles of Confederation. To have limited the clause to treaties made "in Pursuance" of the new constitution would have defeated that purpose.

26

It would seem clear that no implication can be drawn from this that treaties are subject to no constitutional limitation. The Supreme Court has stated that "Of course, all treaties and statutes of the United States are based on the Constitution" (United States v. Minnesota, 270 U. S. 181, 207). Indeed, treaties are generally of the same dignity as statutes, and can be modified or repealed by a Federal statute so far as their domestic effect is concerned (Head Money Cases, 112 U. S. 580, 597-599; Chae Chan Ping v. United States, 130 U. S. 581, 600-603; see Moser v. United States, 341 U. S. 41, 45). Viewed as an international obligation, a treaty is, of course, beyond judicial control (Head Money Cases, supra, 112 U. S. at 598). But to the extent that a treaty is self-executing so as to become the law of the land, "it can be deemed in that particular only the equivalent of a legislative act" (Chae Chan Ping v. United States, 130 U. S. 581, 600; see United States v. Minnesota, 270 U. S. 181, 208).27

It would certainly be anomalous if the courts were to hold that, although they could deny enforcement of a treaty on the ground that it was inconsistent with a later act of Congress, they were without power to do so on the ground of inconsistency with the Constitution. The power of Federal courts to invalidate acts of Congress as contrary to the Constitution was implied from the propositions that a statute could not overrule the Constitution, that the Federal judiciary had jurisdiction over cases arising under the Constitution, and that it was sworn to uphold the Constitution (Marbury v. Madison, 1 Cranch 137, 176-181). The same reasoning applies to treaties (Cf. Taylor v. Morton, Fed. Case No. 13,799, 23 Fed. Cases at 785 (C. C. D. Mass., 1855)). But, in any event, the decisions cited above show that the power to examine into the constitutional validity of treaties has almost invariably been assumed.29

The further suggestion has been made that there is no constitutional protection against a treaty which impairs rights of free speech, press, or religion. This is rested on the fact that the first amendment, unlike the rest of the Bill of Rights, refers only to Congress; "Congress shall make no law respecting an establishment of religion * *"" etc. However, the amendment has not been

*

regarded as limited to action of Congress, but rather has been assumed to prohibit any action by the Federal Government impairing freedom of speech, press, or religion or the rights of assembly and petition. Thus it has been assumed to apply to acts of a territorial legislature (Davis v. Beason, 133 U. S. 333) to orders of administrative agencies (National Broadcasting Co. v. United States, 319 U. S. 190, 226-227) and to judicial proceedings punishing for contempt of court (Toledo Newspaper Co. v. United States, 247 U. S. 402, 419-420 (overruled on other grounds), Nye v. United States, 313 U. S. 33, 47-52)). In the cases arising

26 The only Supreme Court decision of which we are aware that makes any reference to this difference in phraseology is Missouri v. Holland (252 U. S. 416, 433). In the very next sentence, Justice Holmes states "We do not mean to imply that there are no qualifications to the treaty-making power," and a few sentences later he points out that "The treaty in question does not contravene any prohibitory words to be found in the Constitution."

27 Compare statements that a treaty, duly executed and ratified, "becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Congress" (e. g., Fellows v. Blacksmith, 19 How. 366, 372 (1856)).

28 Chief Justice Marshall referred only incidentally to the provision that statutes made "in pursuance of" the Constitution were to be the supreme law. We have pointed out above the reasons why a like phrase was not used in the case of treaties.

29 The A. B. A. committee report suggests that Missouri v. Holland (252 U. S. 416) and United States v. Curtiss-Wright Corporation (299 U. S. 304, 316-319) "go in the opposite direction of an unlimited treaty power." Missouri v. Holland clearly states that there are constitutional limitations on the treaty power and that a treaty may not violate an express prohibition of the Constitution. The Curtiss-Wright case was in no sense concerned with the question whether a treaty could violate constitutional prohibitions. Mention might perhaps also be made of Ware v. Hylton (3 Dall. 199, 237), in which Justice Chase expressed doubts as to his power to declare a treaty void. That decision, however, was rendered 7 years before Marbury v. Madison, which for the first time established the power of the Court to declare acts of Congress unconstitutional.