The Conventional Wisdom Before Missouri v. Holland: Was It “Close To Universally Accepted” That a Treaty Could Increase The Legislative Powers of Congress?

I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is a bold claim to make without citation. I’m afraid that it is incorrect on each point.

First, treatises. Just five years before Missouri v. Holland, a leading treatise on the treaty power was written by Henry St. George Tucker — law professor, dean, congressman, ABA president. Tucker considered the precise claim at issue here: “that when a treaty may need legislation to carry it into effect, has embraced a subject which Congress cannot legislate upon, because not granted the power under the Constitution, that the treaty power may come to its own assistance and grant such right to Congress, though the Constitution, the creator of both, has denied it.” The treatise emphatically rejected this proposition, and for just the right reason: “[s]uch interpretation would clothe Congress with powers beyond the limits of the Constitution, with no limitations except the uncontrolled greed or ambition of an unlimited power.” Henry St. George Tucker, Limitations on the Treaty-Making Power, s 113, at 129-30 (1915).

Second, congressional debates. The most important such debate about the treaty power was the one surrounding the Louisiana Purchase. The debate is too involved to recreate here, and a wide variety of positions were expressed, but suffice it to say that there was no consensus that a treaty could increase the legislative power of Congress. One of the most clear-eyed Senators powerfully expressed the contrary view, apparently concluding: (1) the treaty itself was constitutional because non-self-executing; (2) Congress’s power to execute the treaty must be found among the list of Congress’s powers; the power does not instantly and automatically arise from the treaty and/or the Necessary and Proper Clause; (3) if Congress lacks the present power to execute the treaty, it does not follow that the treaty is void; it follows, rather, that the treaty calls for a constitutional amendment. See Executing the Treaty Power at 1926-27.

Third, Supreme Court cases: In 1836, the Court said this: “The Government of the United States … is one of limited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.” Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736 (1836) (emphasis added).

Fourth, for good measure, here is a caustic editorial on just this point in the New York Tribune (Dec 8, 1879): “it will be a new discovery in constitutional law,” the Tribune sneered, “that the President and Senate can, by making a treaty, enlarge the power of Congress to legislate affecting internal affairs.”

So, it was hardly “universally accepted,” before Missouri v. Holland, that a treaty could increase the legislative power of Congress; if anything, the conventional wisdom seemed to lean the other way. In any event, as of 1920, the issue certainly deserved far more than one unreasoned sentence in Missouri v. Holland.

Happily, the stare decisis force of an opinion turns, in part, on the quality of its reasoning — and it diminishes substantially if the opinion provides no reasoning whatsoever. This is why it is such good news that the Court is now poised to give this important question the analysis it deserves.

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