The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1906-11-16

CdlI1Ofnla mas the same right TO
separate japanese, Chinese, negroes
and Indians from her citizens in her
public schools that she has to separ-
ate males and females, men over 81
years Of age and boys under that age,
or degraded persons from those who
are Virtuous, or infected persons from
those who have good health.
These rights are classed among the
police powers of the state which COL
gress has no right to control. Nor
have the president and the senate the
power to regulate and control these
rights by treaty with foreign govern
ments.
Treaties to be constitutional when
they affect the rights of the people at
large must apply equally to all the
= people of the United States. Treaties
are classed as the supreme law of the
land in the constitution, and SO are
acts of congress-; but acts of congress
are paramount to treaties, but no
treaty can repeal or affect an act of
congress-.
1T pCIICC pO" VI Tie SJIICo
relating to public education and many
other things are in fact an essential
part Of the sovereignty of the states,
with which congress has no right to
interfere, and which certainly can not
be interferred with by a treaty with
any foreign power.
y + = # = p + -
while the Root doctrine has been
Lo;J~1 -, I,o,Iy IN, ~ arc n, =, 'on1ry
idea the principle it involves has
been fought out many times On the
floor of the senate and frequently con-
sidered by both the foreign relations
and judiciary committees of the senate.
1t was fought out in the judiciary
committees Of the house in 1885, when
John Randolph Tucker was authorized
TO report q resolution to the effect mat
the president, by and with the advice
and consent Of the senate, can not ne
gOtiate treaties with foreign govern
ments by which the duties levied Dy
congress can be changed or ~abrOgated,
and that such treaties to be operative
as law must have the sanction of an
act of congress.
The sixth article Of the constitu-
ton. upon which the Root doctrine is
based, declares:
This constitution, and the laws OF
the United States which shall have
been made in pursuance thereof, all
treaties made or which shall be made
under the authority Of the United
States, shall be the supreme law OF me
land; and the judges in every state
shall be bound thereby, anything in the
constitution or laws Of any state to the
contrary Notwithstanding
This article Of the constitution does
not declare that treaties shall be me
supreme law OF the land but that TINS
constitution and the laws Of the United
States and the treaties shall DO tne
supreme law OF h land.
1.-The fact seems to have been over
looked that the tenth amendment K
tho constitution Of the United State'
says.
The powers not delegated to tn
United States by the constitution no
prohibited BY it to the states are pre-
served to the states, respectively, 0
to the people,
The ninth amendment to the con
stitution also has an important re-
ing upon the subject when it says:
1.-The enumeration in the cOnstitu
ton of certain rights shall not be con
strued to deny or disparage others re
tanned by the people ,
The Japanese government con1enG
that the treatment that has bee
accorded Japanese in California cen
stitutes n violation Of Article or N
treaty of 1894 between the JapdneS
Empire aud the United States. IN
article provided that citizens or Japa
in the United States should ENJOY equa
privileges with citizens OF the OnltS
States. In some quarters the suSges
ton has been made that so Tar a
the California situation is concerne(
This norton of the treaty of 1894 wit
Japan is unconstitutional. Laws {
the United States are the supreme Ia
of the land so long as they are nt
declared by the United States suprem
court TO be unconstitutional. IL
not at all certain that the partlcnla
section of the treaty with Japan II
voked by the Japanese goVernmer
would be upheld in the suprem
court and might be declared TO
unconstitutional, in which event tns
treaty would not be the supreme la
of the land.
The president is the active instr
ment in the t~reaty-mdhlnS po"el. l.
has the power to make a treaty
which two-thirds Of the senators COZ
sent. The power is delegated TO II
president by and with the advice on
consent of the senate, and is express
Iy prohibited to the states. III
Dover is not only prohibited to tt
state and delegated to the preside1
and senate. but there is no part {
the constitution which expressly &
vides the power with any otneF a.
partment or oficer of the government
II has further been claimed in beha
of this power that treaties made III
der the authority of the United Stats
shall be the supreme Law OF Il
land
These clauses constitute the III
title of the treaty-making power. y
other clause refers to it, and the nj
ture and extent of the power tner'
$4,000 .o1& IN fhoCn r. aon no.