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Old April 7, 2010, 09:23 AM   #27
Bartholomew Roberts
Senior Member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 6,847
Well, Holland is a 1920 case if I recall correctly. If you look at the treaty making power from a 1920 view of Constitutional interpretation and then say that Congress has no power to make any treaty that would affect the states rights under the 10th Amendment, you have severely curtailed Congress's ability to make treaties and called into question several existing treaties at the time.

So while I agree that the majority opinion in Holland was wrong, I can understand why they reached the decision they did.

Despite the feel good words of Justice Black in Covert, he explicitly agreed with the Holland decision.
Well, I am no expert in this area or even well-read in it; but it strikes me that Justice Black recognizes the problems with Holland but at the same time is bound by stare decisis and wants to get as much support as possible for his opinion in Reid v. Covert, in which he had 4 votes and 2 concurrences.

He writes an opinion that narrows Holland considerably while at the same time purporting to uphold it. This isn't unheard of in Supreme Court cases (for example, substantive due process incorporation of the 14th Amendment to create the same rights Slaughterhouse denied).

The only real problem that I see Holland presenting is that like all horror movie monsters, until you see the body and cut off its head, you'd better treat it as if it could jump back to life any time - and there are certainly people out there who would like to see it revived. However, I do not think the current Court isn't going to be the one that attempts that.
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