Putting Missouri v. Holland on the Map

I. INTRODUCTION While I can think of no fitter setting for a symposium on this important topic, it must be admitted that geographically speaking, Missouri v. Holland disappoints. One thrills to the prospect of a divisive dispute between the State of Missouri and a province of the Netherlands--perhaps a sub-national compact on flood control gone sour? It quickly becomes apparent, though, that "Holland" is merely a lower-level federal official. And Missouri's particulars play a limited role in the case, as suggested by the fact that Kansas came to its side in the Supreme Court proceedings. (1) Those who are not students of American history, (2) or at least sports fans, (3) may not appreciate the rarity and generosity of Kansas' gesture. Yet Missourians were, of course, front and center in the case. Ray Holland, the federal game warden, roamed Missouri and several neighboring states in pursuit of lawbreakers. Frank McAllister, Missouri's Attorney General, was an inveterate duck hunter and committed opponent of the reenacted federal ban on spring shooting who appears to have been on bad terms with Holland. Holland, hearing rumors that McAllister was encouraging others to break the law, apprehended the Attorney General and four friends while they were hunting near Nevada, Missouri; McAllister, found with a bag of seventy-six ducks, reportedly compounded his problems by giving a false name. He was prosecuted and fined, and in retaliation sought to enjoin the federal law on constitutional grounds. The proceedings ultimately generated Missouri v. Holland and victory for Holland--probably a particularly bitter pill for McAllister to swallow, given that he himself had argued the case on behalf of Missouri. (4) More broadly, Missouri and its citizens were fixed and leading opponents to the Migratory Bird Treaty and its implementing legislation. In part this was due to the migratory patterns of ducks, which skipped the Midwest when traveling south in the fall; this meant that federal limits on spring shooting would deprive Missourians of what they considered their fair share of ducks (or, perhaps more accurately, impair the ability of Missourian duck clubs to afford members like McAllister exclusive access to the ponds and small lakes that were most attractive during the spring).5 Opposition to federal intervention was driven by Missouri's Senator James A. Reed, who maintained his own feud with the leading conservationist advocate, William Hornaday. (6) Reed singled out Hornaday as the man to blame for the entire initiative, and either "insane" or a "common slanderer and a common scoundrel." (7) Not to be outdone, when treaty ratification seemed assured Hornaday crowed, "Praise God, from whom all blessings flow; and now the spring-shooters of Missouri can go to hell!" (8) It's hard to say where Missouri's spring shooters eventually wound up, but it was ingenious for Hornaday to speculate--however baselessly--about their migratory pattern. Keeping things figurative, we might try to understand Missouri v. Holland's migration as well--focusing on just one aspect of the decision, its suggestion that congressional power may be enhanced by a treaty. I want to first put Justice Holmes' opinion on the map by identifying the claims he was making and the claims that might have been made on the facts of the case. (9) That exercise, I think, best informs attempts to reckon where Missouri v. Holland came from, and where it went afterwards. Doing so, I conclude, also undermines contemporary criticisms and defenses of the Court's decision. II. MISSOURI V. HOLLAND IN CONTEXT Given the symposium's focus, I will provide only what background is necessary to understand the relevant parts of Missouri v. Holland. (10) The basics are easily stated. After nearly ten years of attempts, Congress adopted legislation--the Migratory Bird Act of 1913, also known as the Weeks-McLean Act--that extended federal protection to migratory birds and attempted to regulate their hunting. …