The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-06-20
SOME NEW BOOKS.


The Treaty Power and the states.
The second clause of Article vi. OF
The Constitution of the United States
Of Amsric~ declares: This Constitu-
ton, 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 the SUI
preme law Of the land" In his learned
exposition of the Limitations on the
Treaty Making Po,Uer tLitt,e. Brown
and Company Henry ST. GEORGE
TUCKER. formerly dean of the law
schools of Washington and Lee Uni
versity and George Washington Uni
versity. exhibits what seems to us a
%scantily justified apprehension Of pos
sible results of a prevalent error" be-
lief in exemption of the treaty power
from constitutional limitation. The
nature and extent Of the limitations to
which his power is subject seem so
clearly established by the presidents
and usages arrayed In lawyerlike fash
ION In the book Itself that 1t Is hard
to see just what is the occasion of the
defence Of the theory Of constitutional.
restriction. The question seems
academic rather than pressingly
practical. II the treaty making power.
the President by and with the ad-
yice NJ tho senate, ARTICLE II. Sec
t,on ? clause ., should he tempted
ever n transpresa Ito nroner bounds
noth,ns couId he more certain than
that some other mower IN orr Govern
man, invaded wound voice tie resent-
mani with such inv,ncih,e determina-
tion "A N en,is, universal sentiment
IN support of this authors conclusion
thar "Jf greater mower ia required the
remedy IA by constitutions amend
ment."
n there had not been 80 much and
m EARNEST debate IN the nature NJ the
'supremacy" OF the treaty. making
mower no one not given 10 pout,co-
LOGICAL fnesse would % that such
debate ever could occur. Article VI.
Clause 2 IA an omen door for sophistry.
but not for debate with common sense
on both sides-a condition essential to
the proitableness OF debate. But the
law must 20 on spinning its web out
of III own bowels. This is n three
fold supremacy. and the members of
its trinity have not equal rank. It
IA entirely reasonable to suppose that
thsy are indeed named in an order in
tended TO Indicate the ranking: first.
supreme OF the supremacies the Con-
stitution: next. the acts of Congress:
then the binding power Of treaties.
That binding power is conditioned by
the terms OF the Constitution itself.
In the early days Of the republic
the Hamiltonlans asserted that the
Constitution was the product Of one
body polite, the nation. giving GER
tain powers to the Federal Govern
ment and others to the States. and de-
nying certain powers to each, The
Jerersonians regarded the States as
Independent sovereigns creating the
Constitution, whereby each resigned
some of It's powers and retained only
those powers moi connected with the
maintenance of national entity. It
makes no difference which of these
PHILOSOPHERS as to source and direction
of flow of power is adopted the simple
fact remains that the government Of
this republic is a unique system in
its division and balance of powers: a
division frequently embarrassing to
nations who enter into treaty COM
pacts with us. "Of what avail is il
to know that the trainers Of the Con-
stitution securely preserved to the
people their sacred local rights from
the grasp Of Congress. the President
or the judiciary IL they can b. alb
eorbed under the treaty making
power?"
The constitutional convention dis
cussed the scope and extent OF the
power less than the selection OF a
proper repository. but historical in
tefest turns rather upon the interpre-
tation OF the word treaty" itself. The
grant OF treaty power is general. and
ia by the common rule Of construction
to be considered as limited nv specific
grants to other agencies. Prof. Tucker
reaeons his proposition with palms.
taking detail; almost too much pains
and too much detail. His citation of
authorities is comprehensive. his quo
tations generous and uniformly apt. his
argument clear and consecutive.
The first restraint upon the treaty
making power is imposed by the House
Of Representatives. In his principles
of Constitutional Law" Judge Cooley
SAYS: THE fuil treaty making power
ia IN the President and Sepate. hut
~. rJo,,. p.nrosan,o,,yo. 10. :.
----.-I-- --" =. ~ -. =.
po"e upoA - !" '""' 3D."
Hrsy IN its oiscretioh at any TIME re-
fuse TO give assent 10 legislation nec-
es8ary to give a treaty effect" OF