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Wednesday, July 10, 2002
I’ve got mail!

Phillipe Richards wins the prize (of little or no monetary value to be determined) for being the VERY FIRST person to mail a comment to me. I would treasure his letter for that reason, alone, but it gets better. In response to my humble mea culpa in connection with the Supremacy Clause, he says I was too quick to concede, and for taking that position, his prize will be increased many fold.

He points out a very interesting Supreme Court opinion authored by one of our most famous jurists, Oliver Wendell Holmes. The case involved a statute passed in 1918 by the Congress. It seems that in 1916, the US and Britain (then the sovereign of Canada) signed the Migratory Bird Treaty concerning, surprise, migratory birds which traversed parts of Canada and the US. The two countries agreed pursuant to the treaty that there would be specified closed seasons on hunting certain species of birds and to promulgate laws to carry out the treaty. When the US did so by enacting the aptly titled Migratory Bird Treaty Act of July 3, 1918, Missouri sued to have the statute declared unconstitutional.

It turns out that it had previously been established that “ownership” of wild animals resided with the states, and that Congress could not regulate hunting migratory birds because (a) that was not one of the enumerated powers granted to the federal government and (b) the power was reserved to the several States by the Tenth Amendment. Thus, Missouri argued, what the US could not accomplish directly, it cannot get done via the back door of a treaty. Holmes first implied that he did not agree with the prior decisions, but said that, regardless of whether those decisions were correct, they were not wholly dispositive of the issue before the Court. He wrote:

“Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention."

In other words, "under the authority of the United States" may mean something closer to "under the aegis of the US" than "pursuant to authority granted by the people to the US in the Constitution". Holmes continues:

"We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.”

Holmes then goes on to make an argument that sounds suspiciously like those advanced in cases about laws and regulations made under the authority of the Commerce Clause: the birds in question are only in any one state on a transitory basis, and relying on the states to protect them is futile, since the benefits of protection are widely disbursed and the burdens (such as the absence of a new landfill) are very local. This last is a variation on what I recall from my Stone Age course on game theory as Arrow’s Theorem (and others on the web have called the tragedy of the commons): a series of rational decisions can lead to an irrational outcome.

The final outcome in Holland was that the law made pursuant to the treaty was valid, when a similar law made prior to the treaty, had previously been declared invalid. I suspect that the treaty (and therefore the statute) would pass constitutional muster today under the power of Congress to regulate interstate commerce, which authority is much more broadly construed today than it was in the 1920s, when Holland was decided.

Both Justice Holmes and Mr. Richards take care to note that they do not believe that the federal government could repeal the Bill of Rights simply by entering into a treaty with another country, but assert that the language used in the Supremacy Clause differentiates between laws enacted by the US “pursuant to the Constitution” and treaties entered into “under the authority of the United States”, and that the difference must have some significance.

Well, OK. Obviously, the Supremacy Clause does have different language describing laws and treaties, and I agree that the difference should not be construed as meaningless. But Steven DenBeste’s point was that the treaties he was discussing directly violated one or more of those basic and most cherished rights held by Americans, which both Holmes and Richards assumed could not be bartered away via treaty.

So both Richards and DenBeste are still right. Does that mean I’m still wrong?
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