The Firing Line Forums - View Single Post - Can a treaty ratified by the Senate trump the U.S. Constitution?

Al Norris · April 4, 2010, 05:29 PM

The Weeks-McLean Act of 1913 was a law designed (among other things) to regulate hunting of migratory birds throughout the U.S. It was challenged as interfering with States rights (10th amendment claims) and began failing in one Circuit decision after another.

Fearing that the law would become completely invalidated at the judicial level, the Congress empowered the State Dept. to negotiate with the United Kingdom (for Canada) for a treaty to regulate migratory birds (this was later expanded by a treaty with Mexico and other central and south American countries).

After the Treaty was ratified and came into being, the Migratory Bird Treaty Act of 1918 was passed. The law, based upon the treaty, was reasoned that the new powers of Congress, were given by Treaty and was therefore lawful under Art VI.

The State of Missouri then sued the federal government (Missouri v. Holland, 252 U.S. 416) for violating the tenth amendment (the basis for the successful Weeks-McLean challenges). However, the SCOTUS held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. This was also the first time a certain phrase was used, and it was coined by Justice Holmes, as he referred to the "living constitution."

While it may be said that the treaty did not violate the constitution, it did give the Congress a power it did not hold before. The SCOTUS acknowledged this.

So while the Court in the 50's and 60's might have implied (said in dicta) that a treaty may not violate the constitution, Holland has never been overturned.

It can certainly be said that granting a new power to the Congress, without an express amendment, is a violation of that constitution. So Holland stands alone and in tension with later Court decisions.

April 4, 2010, 05:29 PM	#10
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	The Weeks-McLean Act of 1913 was a law designed (among other things) to regulate hunting of migratory birds throughout the U.S. It was challenged as interfering with States rights (10th amendment claims) and began failing in one Circuit decision after another. Fearing that the law would become completely invalidated at the judicial level, the Congress empowered the State Dept. to negotiate with the United Kingdom (for Canada) for a treaty to regulate migratory birds (this was later expanded by a treaty with Mexico and other central and south American countries). After the Treaty was ratified and came into being, the Migratory Bird Treaty Act of 1918 was passed. The law, based upon the treaty, was reasoned that the new powers of Congress, were given by Treaty and was therefore lawful under Art VI. The State of Missouri then sued the federal government (Missouri v. Holland, 252 U.S. 416) for violating the tenth amendment (the basis for the successful Weeks-McLean challenges). However, the SCOTUS held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. This was also the first time a certain phrase was used, and it was coined by Justice Holmes, as he referred to the "living constitution." While it may be said that the treaty did not violate the constitution, it did give the Congress a power it did not hold before. The SCOTUS acknowledged this. So while the Court in the 50's and 60's might have implied (said in dicta) that a treaty may not violate the constitution, Holland has never been overturned. It can certainly be said that granting a new power to the Congress, without an express amendment, is a violation of that constitution. So Holland stands alone and in tension with later Court decisions.