ABSOLUTISM THRU TREATY An early warning against the implications of the ruling of the late Justice Holmes of the Supreme court in Missouri vs. Holland, a case in 1920 involving the protection of migratory birds, appeared in the Illinois Law Review for April, 1931...
The history of the case began in 1913, with passage by Congress of the Weeks-McLean migratory bird act, declaring certain migratory birds to be within the custody and protection of the government of the United States.
Two state and two federal courts held this act unconstitutional, maintaining that power over the birds was vested solely in the states. In 1916 the department of agriculture urged the state department to conclude a treaty with Canada protecting migratory birds, and this was promptly done,
In 1918 Congress enacted the migratory birds treaty act, and this was what was declared constitutional by Justice Holmes. The treaty and act covered much the same ground as the Weeks-McLean act of 1913. ' Thus," says Prof. Black, " by virtue of the interposition of an underlying treaty, an act, that standing alone is manifestly unconstitutional, now passes the gantlet of judicial review and becomes the law of the land."
Justice Holmes maintained that this outcome was possible because, while legislation by Congress must be "in pursuance" of the Constitution, treaties need only be made " under the authority of the United States." Thus he contended that the provisions of a treaty, with effect as internal law, need not be controlled or governed by the Constitution or pursuant to its terms.
Here the justice was obliged to do violence to the intention of the men who drafted the Constitution in 1787. They used the phrase "under the authority of the United States " for a deliberate but limited reason.
There were treaties in existence, to which the United States was a party, before a Constitution was drafted in 1787. Among them was the treaty of Paris of 1783, recognizing the independence of the United States. Obviously, such treaties in existence which had been made by Congress under the Confederation could not be considered pursuant to a Constitution which post-dated them; yet it was in the national interest to declare that they represented a continuing obligation.
Hence the resort to the language "under the authority of the United States." It was to this narrow chink that Justice Holmes addressed his attention, 'with the object of widening it into a breach thru which assault forces could be poured in an attack on the inner defenses of the Constitution.
In doing so, he resorted to the argument that the treaty process was never intended to be consistent with all of the other provisions of the Constitution, altho distinguished constitutional authorities have always maintained that the Constitution must be construed as a unit, and that it was the clear intention of those who drafted it that all treaties effected after the Constitution would not be "under the authority of the United States " unless they were conformable to its Constitution.
By this decision, the treaty power became a loophole in the doctrine of limited government, and the President and the senate, if so minded, can avoid all of the safeguards carefully erected to protect individual rights and prevent arbitrary acts of government. Here, indeed, was a doctrine of unlimited power.
As has been said, "If the treaty power is unlimited, then our government would not be a government under the Constitution, but a government under the treaty power." "Has the treaty power, by virtue of this case, become the 'Wooden Horse' within the citadel of American constitutionalism that will ultimately consume and devastate all of the safeguards that have been so carefully erected to protect individual rights and to prevent arbitrary governmental acts? " asks Prof. Black.
Chicago Tribune
March 18, 1956
