Volume 54 Issue 4 Dickinson Law Review - Volume 54, 1949-1950 6-1-1950 Treaties Under the Constitution and International Law Lester Harris Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Lester Harris, Treaties Under the Constitution and International Law, 54 DICK. L. REV. 417 (1950). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol54/iss4/4 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. DICKINSON LAW REVIEW TREATIES UNDER THE CONSTITUTION AND INTERNATIONAL LAW By LESTER HARRIS The Treaty Clause of the Constitution, Article 2, Section 2, reads as follows: "He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Sena- tors present concur." Under the treaty clause of the Constitution, the President initiates and car- ries on the treaty proceedings. Once the treaty has been found acceptable to him, he submits the treaty to the Senate for concurrence: "Not only is the federal power over external affairs in origin and essential character different from that over internal affairs but partici- pation in the exercise of power is significantly limited. In this 'vast ex- ternal realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a repre- sentative of the nation. He makes treaties with the advice and consent of the Senate, but he alone negotiates. Into the field of negotiation, the Senate cannot intrude, and Congress itself is powerless to invade it."I Therefore, when Senator Lodge and thirty-nine other Senators, more -than one-third of the Senate, resolved "that it was the sense of the Senate that peace terms should first be negotiated with Germany and that the proposal for a League of Nations should then be taken up 'for careful consideration',"3 the signers were acting unconstitutionally. The -act was a deliberate, and as it turned out later, a successful attempt on the part of a group of Senators to insert themselves into the negotiations of a treaty. So vast is the power of the President in the matter of treaties, excepting the consent and concurrence thereto by the Senate, that the President may, once the Senate has consented to the treaty, "put it in his desk never again to see the light of day, as h'e was free to determine in the first instance whether he would or would not negotiate it . .It is a power which inheres in him as the sole organ under the Constitution through whom our foreign relations and diplomatic intercourse are conducted . Why? Because the President, through the am- bassadors, ministers and consuls, and all of the agencies of the government, ex- * B. S., Bucknell, 1911; LL. B., Stetson, 1928; City Attorney, Winter Garden, Florida; Ar. ticles published in Florida Bar Journal and University of Miami Law Quarterly. 1 Mr. Justice Sutherland in United States v. Curtiss-Wright Export Corp., et al, 299 U. S. 304, 319. 2 BEMis, Dip. HIsT. oF U. S. oF A., p. 642. DICKINSON LAW REVIEW plores sources of information everywhere, it is his business to know whether any- thing has occurred since the Senate acted . ..which would render it for the pub- lic interest, that the ratification be not exchanged." s Further, the Treaty Clause of the Constitution is not limited expressly and though it does not extend "so far as to authorize what the Constitution forbids", it does extend to all proper subjects of negotiation between our government and other nations,' or as Congressman David John Lewis said in the House on Feb- ruary 17, 1917: "A law must be in 'pursuance' of the Constitution; a treaty is not re- quired to be.''5 The reason for this is obvious: "Laws operate on!y on land over which the government is exclu- sive sovereign, and can thus formulate them as to conform to the Con- stitution. But treaties opcrate upon other nations, and must, therefore, conform to the wills of all the signatory powers. '6 "I think it is perfectly idle to consider (said Charles Evans Hughes, then President of the American Society of International Law) that the Supreme Court will ever hold that any treaty made in a constitutional manner in relation to the external concerns of the nation is beyond the power of the sovereignty of the United States or is invalid under the Constitution where no express prohibition of the Constitution has been violated." 7 "The learned Justice (Story) added th,-t he had some years pre- viously had a conversation with Chief Justice Marshall on the subject. He was unequivocally of the opinion that the treaty-making power did extend to cases of cession of territory. "s International law is a part of the law of the land. There is nothing in the Constitution nor in International Law prohibiting the Union from entering a World League and at the same time delegating to such League the power of con- trol over contingents of our armed forces. "International Law (said Mr. Justice Gray) is a part of our law and must be ascertained and administered by the Courts of Justice as often as questions of right are duly presented for their determination. "9 By reason of the above theory of law, the U. S. Supreme Court upheld the legality of the "Migratory Bird Treaty" with Canada, despite "invisible radiations from the general terms of the 10th Amendment." 10 8 Speech, Senator Spooner, Foreign Relations Committee, Cong. Rec. Vol. 40, Pt. 2, pp 1418-1419. , Asakura v. City of Seattle, 265 U. S. 332. 5 Cong. Rec. Vol. 54, Pt. 4, p 3508; and Holland v. Missouri, 252 U. S. 416. 6 Hackworth, Vol. 5, D. 1. L., p 6. 7 Speech, April 26, 1929. 8 1 Kent 167-284; Moore, INT. L. D., 173-174; 133 U. S. 276. 9 "The Paquete Habana" v. U. S.,175 U. S. 677-694. 10 Missouri v. Holland, 252 U. S. 416. TREATIES UNDER THE CONSTITUTION AND INTERNATIONAL LAW "No doubt", wrote Mr. Justice Holmes (in a majority opinion), "the great body of private relations usually falls within the control of the state, but a treaty may override the power. We do not have to invoke the later development of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell, 3 Cranch 454. " 1 On July 3, 1900, Secretary of State John Hay sent out a circular to the Great Powers stating: "In the critical posture of affairs in China it is deemed appropriate to define the attitude of the United States as present circumstances per- mit this to be done. We adhere to the policy initiated by us in 1857 of peace with the Chinese nation, of furtherance of lawful commerce, and of protection of lives and property of our citizens by all means guaran- teed under extraterritorial treaty rights, and by the law of nations. If wrong be done to our citizens we propose to hold the responsible authors to the uttermost accountability . .The purpose of the President (Mc- Kinley) is, as it has been heretofore, to act concurrently with the other powers." 12 "August 8, 1900, Mr. Jackson, American Charge at Berlin, inquir- ed, at the solicitation of the German government whether the United States would put its forces under the Chief Command of Field Marshal Count von Waldersee, Japan and Russia having already expressed their willingness to do so. In accepting this proposal the Department of State declared that the United States would be gratified to secure the command of so distinguished and experienced an officer as Count Waldersee for any combined military operationsin -which tie American troops take part, after the arrival of that distinguished officer in China, to attain the pur- pose declared by this government in the circular note delivered to the powers under date of July ... In World War I, American troops served under the overall command of Marshal Foch of France, and in World War II, all allied troops in Western Europe served under the command of the American General Eisenhower by agreement between the Chief Executives of the nations concerned. The American Congress had nothing to do with the above military agreements. "As between treaties and laws they are placed under the same foot- ing under our Constitutional processes. Both are declared to be the law of the land, and no superior efficacy is given to one over the other. If in- consistent the last one in date will control."'" Therefore, if an act of Congress may override a treaty or a treaty override an act of Congress, we need not be surprised if a custom has grown up in the union wherein treaties and acts of Congress are used interchangeably. The Con- stitution does not forbid this practice. II Ibid. 12 Circular of July 3, 1900. MOORE, INT. LAW DiG., Vol. 5, 481-482. 13 MOORE, INT. LAW DIG., Vol. 5, 483. 14 U. S. v. Thompson, 258 Fed. 257; Whitney v. Robertson, 124 U. S. 190; Horner v. U. S., 143 U. S. 570. DICKINSON LAW REVIEW Under the Constitution a treaty may be accepted only after it has been con- sented to and concurred in by a two-thirds majority of the Senators present. Since the votes of some Senators are often controlled by their political and economic predilections, it follows that treaties under the Constitution may be defeated on purely personal grounds.