Missouri v. Holland: The Intellectual History That Preceded The Holding

Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread.

I have criticized Justice Holmes for concluding — in one unreasoned sentence — that treaties 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 simply not so, as I demonstrated in my last post — citing a leading treatise, the most important congressional debate, a U.S. Supreme Court opinion, and, for good measure, an editorial in a prominent New York newspaper (which purports to express the general consensus of the time).

Rick seems to have two responses to this contrary evidence. First, he says it tends to support Ilya’s position, not mine. Second, it’s still not enough; Rick would like to see more. These are, I think, unpersuasive responses.

On the first point, it is not so; take a look at the sources and decide for yourself. But even if Rick were right about this, that would be of no help to him. Again, Ilya and I agree (with Justice Scalia) on the fundamental point that a treaty cannot increase the legislative power of Congress. All the sources cited clearly support that general point. They are all flatly inconsistent with Rick’s claim that a treaty can increase the legislative power of Congress.

On the second point, about weight of authority, surely I have met my burden. Rick said his position was “close to universally accepted” before 1920, while citing no authority. I cited one powerful counterexample in each of the three categories that Rick suggested (treatise, congressional debate, supreme court case), plus an editorial for good measure. In response, Rick again offers zero citations — other than the ipse dixit in Missouri v. Holland itself — for the proposition that a treaty can increase the power of Congress.

Rick says only this: “For the evidence on the other side, showing how central it was to the Constitution’s design and structure that the U.S. be able to honor its treaty commitments and for the historical understanding of the treaty power, see the articles referred to in my earlier posts by Dan Hulsebosch and David Golove.” But we all agree about this general historical claim. What Rick needs is evidence of the claim at issue (which is, as Curt Bradley explains, a non sequitur): the claim that a treaty can increase the legislative power of Congress. As to that, Rick again offers no authority whatsoever. Neither, by the way, does David Golove. See Executing the Treaty Power at 1888-89.

Moreover, Rick surely bears a much greater burden than I do here. After all, he is trying to assert that his position was so well established in 1920 as to require no reasoning whatsoever in Missouri v. Holland. I need to show only that some respectable arguments were in the air on the other side. Surely a leading treatise, published just five years before, squarely in the opposite camp — let alone a Supreme Court case and all the rest — suffices to prove that point.

I would think we could agree — as the current Supreme Court apparently agrees — that the question merits at least some analysis. Happily, an opinion with no reasoning whatsoever has very little stare decisis force. If nothing else, we should celebrate that the Court is poised, at last, to give the question the de novo analysis it deserves.

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