The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-12-21
TIE TREATY MAKING POWER.

To THE EDITOR OF The SUN-Sh: Inc
recent speech OF Senator Rayner on the hmi-
tations to the treaty making power. In
which he criticised the policy OF the Admins
tration as to the exclusion OF the Japanese
from the San Francisco schools. will probably
call forth an exhaustive debate upon the sub
ject in the Senate.
The question is q most important one.
involving on the one hand the power Of the
United States to make treaties with foreign
nations and on the other the right OF the
states TO manage their own local Affairs to
suit themselves.
Article vi. OF the Constitution provides:
This Constitution and the laws Of the United
States which shall be made in pursuance thereof
and all treaties made or which shall be made under
the authority Of the United States. shall be tho
supreme law Of the land; and the Judges In every
State shall be bound thereby. anything in the Con-
stitutlon or laws OF any State to the contrary not
withstanding."
The phraseology Of this paragraph indicates
that its trainers Intended to draw a distinc-
ton between the laws Of the United States
made in pursuance Of the Constitution and
treaties made or which shall be made under
the authority OF the United States As to
the laws. only such as are made in pursuance
OF the Constitution are declared to be the
supreme law Of the land. but there Ia no such
limitation as 10 treaties. The limitation as
to them il comprised in the words: made or
which shall be made under the authority OF
the United States II so made they are to
be the supreme law OF the land.
As q matter OF fact. before the adoption
OF the Constitution treaties had been made
under the authority OF the United States.
and these treaties. which, OF course, were
not made in pursuance Of a Constitution
( that had no existence at the time they were
made, are declared to be che supreme law
Of the land. as well as all others which shall
be made under the authority OF the United
States. II Is clear. therefore. that the
trainers meant what they said in this section;
that they meant to dlnerentiate between laws
and treaties. requiring the first to be made
I'm pursuance OF the Constitution" and the
second to be made under the authority OF
the United States in order to be the SUI
preme' law OF the land. And so the Supreme
Court has uniformly held that the treaties
made with France in 1873 and with Great Brit
ain in 1883 were the supreme law OF the land.
although not made in pursuance OF the Con-
stitution adopted in 1897.
A consideration OF the difference between
laws and treaties and OF the provisions OF
the Constitution relating to the enactment
Of laws and the making OF treaties strongly
suggests the reasons which influenced the
trainers in adoptinN the phraseology OF the
article quoted above.
Laws are regulations made for the govern
ment of the individuals who constitute a
nation or who are residents within Its Juris-
diCtion or who are temporarily enjoying its
hospitality. They are intended to apply TO
lts internal affairs, and have no force beyond
it's territorial limits. The Constitution pro-
vides that the laws OF this country shall be
enacted by the two houses Of Congress with
the approval OF the President. or In case OF
his veto nv a two-thirds majority OF each
house. Certain limits are. however. pre-
scribed TO this legislation. Section 3 OF
Article I. enumerates the subjects upon
which II may leRislate. Section 0 OF the
same article prohibits Congress from acting
on the subjects therein mentioned. and
Section 10 prohibits the States from acting
on certain other subjects. Having provided
these limitations to the powers OF the ma
tional and State Governments. u IL then
declared in Article VI. that this Constitution
and the laws OF the United States made
in pursuance thereof shall be the supreme law
of the land"
But treaties are not laws unless made so
by supplementary legislation. They are
agreements between nations az such. and
are binding on them in the same way that
contracts are binding upon individuals.
They are dependent for their enforcement on
the good faith OF the contracting nations. or
where that fails on the uis major Of the In
Jured party.
ScftlOn z OI ATNltlt ] VI " NOuTNliublOh
provides that the President shall have power.
by and with the advice and consent Of the
Senate. to make treaties, provided two-thirds
Of the Senators present concur" The power
of the President to make treaties with the
concurrence OF two-thirds or the Senators Is
absolute and unqualified, There IA no limi-
tation az 20 the subject matter OF treaties.
The President and two-thirds OF the Senators
present may make any treaty which ommends
teaalg fN THAR fudgmaDfs and a fraafV Uhan
so made II made under the authority OF
the United States and IL the supreme law OF
the land.
The treaty making power was fully con-
sidered and discussed in the constitutional
convention. It was finally decided to COM
nit that power 10 the President and Senate.
for reasons that seemed good to the con-
~vention: 20 the Presid emit because he repre-
sented the whole nation, IN the Senate be-
cause 10 represented the States and would
naturally protect their rights and interests.
There were objections TO this arrangement.
Among others George Mason opposed II,
declaring that II this power were given TO
the President and Senate they might BY a
treaty with Spain cede the State OF Georgia
10 that nation and thereby disrupt the Union.
But the convention was not alarmed by this
startling picture Of possible disaster. It's
members knew that the treaty making power
must be committed TO some Federal agency.
and they chose the Presiden and Senate
a. the safest and most conservative. In
the State conventions called 10 ratify the
Constitution similar objections were made
by its opponents. In the Virginia convention
James Monroe declared his apprehension
that the Eastern and Northern States, in
the event of the adoption OF the Constitu-
ton with this treaty making section, might
combin to make a treaty with Spain relin=
gushing our right to the navigation OF the