$153. Same subject-Limitation by words of constitution. Mr. Lewis having pointed out that the treaty-making power is not limited by the nature of the power, states that it is limited by the words of the Constitution, because the Constitution creates a government with three separate departments-executive, legislative and judicial-and that it is axiomatic that powers conferred upon one cannot be exercised to alter the Constitution, and quotes the language of Judge Story: "A power given by the Constitution cannot be construed to authorize a destruction of the other powers given by the same instrument. . . . . A treaty to change the organization of the government or annihilate its sovereignty, to overturn its republican form or to deprive of something given by a sovereign hand is the power to do it in any way the grantee sees fit. The argument that because the word 'all' does not preeede the word 'power' in the clause conferring treaty-making power and that therefore the power is limited, proves too much. It would show that the words in the second Article do not confer a power to make a treaty on any subject. Not only is the word 'all' not used, but none of the subjects on which treaties may be negotiated are referred to. "As in apparently unambiguous language full and unlimited treatymaking power is by the second Article conferred on the President and the Senate, the burden is on those who contend that the power is limited to prove their case. For we must remember that if the Constitution does attempt to give to the President and Senate an unlimited power to make treaties, the attempt has been successful. There have been two theories in regard to the adoption of the Constitution of the United States; one that it was adopted by the people of the United States; another that it was adopted by the States. The advocates of either theory, however, agree that the power which adopted the Constitution was competent to confer on the Government created by the Constitution all the powers of sovereignty. The source from which the Constitution sprang is a source of unlimited power and authority. The people or the States who adopted it could give to the new Government that they created just as much or just as little of the powers of sovereignty as they chose. "Limitations on the treaty-making power, if any exist, may be found, either in the nature of the power, or the words of the Constitution. Again, limitations may possibly be implied from the fact that our Constitution was adopted by a free people, or may be implied from the very existence of the States as an integral part of our Federal State. "A moment's consideration will show that there is nothing in the nature of the power which limits its operations to particular classes of subjects. A treaty is a contract between two nations. Treaties, if not essential to foreign social and commercial intercourse, are at least an important means of fostering such intercourse. The people of a nation its constitutional powers, would be void, because it would destroy what it was designed to fulfill the will of the people. "188 Mr. Lewis continued: "The treaty-making power, as all other powers of our Federal Government, is necessarily limited to the extent here indicated. By treaty we may not alter the Constitutional distribution of powers between the three Departments of our Federal Government, or confer on any Department a power not conferred on it by the Constitution. By treaty we may not agree that hereafter Congress should legislate on divorce, or that the treaty-making power itself should be executed by Congress; or that a particular State should have three representatives in the Senate. "If a treaty cannot alter the Constitution as written, a treaty cannot violate any specific general restriction on Federal power which may be found in the Constitution. The first eight Amendments, for instance, are prohibitions against specific exercises of power. In all except the first, the prohibition is in terms general. The second Amendment does not say that 'Congress shall not pass any law' forbidding the people to bear arms, or that 'the executive shall not interfere with this right,' but that 'the right of the people to keep and bear arms shall not be infringed.' A treaty which deprived the people of this right would be apparently in direct violation of the express words of the Constitution. "It is, however, important to note that the 10th Amendment does not limit the treaty-making power. This Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to Thus, regulate their conduct toward each in the treaty is for the sovereign nations who are parties to it to consider. Being sovereign, the power to contract knows no legal limits. If, therefore, full and unlimited treaty-making power is given to the Federal Government, by treaty anything can be done. There is nothing in the nature of the power to limit the subjects on which treaties can be made.'' 88 55 Am. Law Reg. No. 2, citing Story on Constitution, sec. 1506. > the States respectively, or to the people.' But the power to make treaties is expressly given to the United States by the Constitution, and the Constitution also expressly prohibits the States from exercising the treaty-making power. The power to make treaties, therefore, is not one of the powers 'reserved to the States respectively, or to the people,' mentioned in this Amendment.” $154. The tenth amendment. In the argument of this question by law-writers it was asserted by those who claimed that the treaty-making power could not extend to the subject of education that such a treaty would violate the tenth amendment of the Constitution. Referring to this proposition, Mr. Lewis stated:. "Again, it is important to note that the principle that a treaty cannot alter the Constitution as written cannot be extended to prohibit treaties dealing with subjects not referred to in the Constitution. It may be that there are limitations on the treatymaking power, arising out of the fact that the Constitution was adopted by a free people, or from the very existence of the states as a necessary part of the Federal system. But such limitations, if they exist, do not come from the words of the Constitution. For instance, it is admitted that a treaty which conferred on Congress the right to regulate marriage and divorce would be unconstitutional. But whether the marriage of aliens in the United States could be regulated by treaty is a radically different question. If the treaty-making power cannot deal with the subject of the marriage of aliens in the United States, it is not because of anything expressed in our Constitution. The Constitution confers on Congress legislative power over certain subjects. The marriage and divorce of natives or aliens in a State of the United States is not a subject on which Congress has been given power to legislate. To confer such power on Congress by treaty would alter the Constitution as written. But to regulate divorce by treaty does not alter the Constitution as written. As has been pointed out, the Constitution gives to the President and the Senate the power to make treaties. It does not say that the marriage and divorce of aliens in the United States shall not be regulated by treaty. There is no clause in the Constitution which such a treaty would violate. To say that we have not given the power to legislate on divorce to Congress and therefore that it may be presumed that it was not intended to confer on the President and Senate the power to regulate the subject by treaty, is to take the position that the grants of legislative power limit the treaty-making power; a position which has been, as we have seen, expressly repudiated by the Supreme Court. If, therefore, there is no power to make a treaty on the subject, the want of power must be due, not to anything expressed in the Constitution, but to some implied limitation on the treaty-making power. "The principles on which we would have to test the validity of a treaty on the marriage and divorce of aliens in the United States also applies to the Treaty under discussion. Admitting that our Treaty with Japan provides that Japanese residents shall have a right to attend the public schools of a State, it is evident that such treaty does not violate any clause of the Constitution as written. Such a treaty does not confer on Congress legislative power over the State schools. It does not increase or decrease legislative or executive power as found in the Constitution or violate any of its express prohibitions. The right of the Federal Government to adopt a treaty of the character indicated can only be denied by showing that such a treaty violates an implied limitation on the treaty-making power." 89 99 55 Am. Law Reg. No. 2. He proceeded: "The people of the United States are organized in a Federal State. An implied limitation on a power delegated to the Federal Government must arise out of the ex istence of some implied reserved right in the people of the United States, or out of the existence of some implied reserved right in the States considered as corporate entities. "We may first ask: Are there any implied reserved rights of the people of the United States not mentioned in the Constitution. Our Constitution was adopted by a free people and was intended for their government. The first eight Amendments specify certain rights of the people of the United States. The rights specified tend to protect individual liberty and the republican form of government. Following these Amendments, the 9th Amendment provides: 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' The wording of this Amendment presupposed the existence of reserved rights in the people of the United States not mentioned in the Constitution. There are, therefore, implied limitations on the treaty-making power and on every other power of the Federal Government arising out of the fact that the Constitution was adopted by a free people imbued with the importance of individual liberty and firmly believing in democratic institutions. It is unnecessary to discuss § 155. No question of state rights involved.-It was contended that by the provision of the treaty with Japan and its enforcement the question of state rights became involved. Mr. Root, Secretary of State, said that no question of state rights was in specific illustrations of possible violations of these implied limitations on the treaty-making power, for a treaty which gives to aliens the right to attend the public schools of a State does not violate any possible rule of law designed to protect the liberty of the citizens of the United States or the republican form of government. "If the Treaty under discussion does not violate any part of the Constitution as written, or any implied limitation on the treaty-making power arising out of the implied reserved rights of the citizens of the United States, the single question remains: Does it violate any implied limitation on the treaty-making power arising out of implied reserved rights of the States? "If the treaty-making power is necessarily limited by the nature of a Federal State, then it will be necessary to go outside the Constitution to ascertain the nature of those limitations, and whether they prohibit the Central Government from making the treaty in question. On the other hand if there is nothing in the nature of a Federal State, in which the Central Government has all the treaty-making power, to impose implied restrictions on the subjects which may be dealt with under that power, such an investigation will be unnecessary. The broad question whether any limitations on the treaty-making power arise of necessity from the Federal nature of our State has never been thoroughly discussed. Treaties-12 But the most important single question which tests the question of the existence of such a limitation on the right of our Federal Government by treaty to cede the territory of a State without its consent, has been the subject of many positive and conflicting assertions. Chancellor Kent in his Commentaries; Justice McLean in Lattimore v. Poteet, and Mr. Butler in his work on the Treaty-making Power, are all of the opinion that such a power exists. On the other hand, Woolsey, in his work on International Law, and the late Justice Field, of the Supreme Court, deny the power. "The greater power includes the less. If it can be shown that there is nothing in the nature of a Federal State to prevent the treaty-making power from ceding part or all of the territory of a State to a foreign power, there is certainly nothing in the nature of such a State to prevent the subjects of a foreign power from being given by treaty the right to attend the public schools of the State. In the second case a State is merely required to devote a part of its property, set aside for the education of native residents, to the education of foreign residents; but in the first the State itself is destroyed. |