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[A decade later, when Mr. Madison drafted and reported upon the Virginia resolutions of 1798, he was firm in the opinion that all the states as such, and not The People of all the states, might deal with "usurpations" by the federal government, but that passed in the negative at Appomattox.]

III

The Treaty-Making Power

The power of the President "by and with the advice and consent of the Senate, to make treaties, providing two-thirds of the Senators present concur." (Constitution, Art. II, Section 4.)

The provision that "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 the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." (Cons., Art. VI.)

It is frequently noted that while this section provides that United States laws to be valid must be "in pursuance" of the constitution. different language is used with respect to treaties, which are supreme law if made "under the authority of the United States."

The explanation made at the time of this change of phraseology was that it was desired to continue in force the treaties made and in force under the Articles of Confederation. These treaties evidently were not made in pursuance of a constitution which was not in existence, but were made "under the authority of the United States."

But while the United States in Congress assembled had ample authority to make treaties it had almost no power except that of persuasion to enforce them within any state. The inability to enforce the obligations of treaties was one of the important reasons for the movement to establish a stronger central government.

The meaning of the clause evidently depends on the meaning of the word "authority."

Was it the authority conferred by the constitution and to be construed in connection with all other clauses of the constitution?

Or was it the authority inherent in the conception of a sovereign power competent to pledge the faith of the nation in respect to all matters which might become subjects of discussion between the United States and foreign nations?

As the debates under the general welfare and similar clauses considered alleged "usurpations" which might come from "construction" of any clause of the constitution, and as they have been sufficiently

illustrated by quotations under the commerce clause, in this subdivision quotations will be made only when referring especially to the treaty power.

From the Journal of the Federal Convention

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May 29.Resolution of Edmund Randolph: “The legislature ought to be empowered * * to negative all laws passed by the several states, contravening, in the opinion of the national legislature, any treaty subsisting under the authority of the Union." (Mr. Randolph's resolution No. 6.)

MR. PINCKNEY'S Draft: "All acts made by the legislature of the United States, pursuant to this constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land; and all judges shall be bound to consider them as such in their decisions." (Mr. Pinckney's draft, Art. VI.)

June 15. (THE NEW JERSEY PLAN): "That all acts of the United States in Congress assembled made by virtue and in pursuance of the powers hereby vested in them, and by the Articles of Confederation, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far as those acts or treaties shall relate to the said states or their citizens; and the judiciaries of the several states shall be bound thereby in their decisions, anything in the respective laws of the individual states to the contrary notwithstanding." (Mr. Patterson's Proposition No. 7.)

June 19. Report of Committee of Whole:

"That the National Legislature ought to be empowered

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to negative all laws passed by the several states contravening, in the opinion of the National Legislature, * any treaties subsisting under the authority of the Union." (Rep. Com. of Whole, Resolution VI.)

July 23 to 26. Report of Committee of Whole as amended in convention and referred to Committe of Detail:

"That the legislative acts of the United States made by virtue and in pursuance of the articles of Union, and all treaties made and ratified. under the authority of the United States, shall be the supreme law of the respective states, so far as those acts or treaties shall relate to the said states, or their citizens and inhabitants; and the judiciaries of the several states shall be bound thereby in their decisions, anything in the respective laws of the individual states to the contrary notwithstanding." (Amended report of Com. of Whole. Resolution VII.)

August 6. Report of Committee of Detail:

"The acts of the Legislature of the United States made in pursuance of this constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several states and of their citizens and inhabitants; and the judges in the several states shall be bound thereby in their decisions; anything in the constitution or laws of the several states to the contrary notwithstanding." (Draft of Constitution, Art. VIII.)

On August 28 this language was slightly modified in convention.
September 12. Report of Committee of Style:

In this report the paragraph appears as it now stands in the constitution, and printed at head of this subdivision.

Madison's Notes

While, as will be noted, there were continuous changes in the language defining the treaty-making power there is nothing in the journals. or in the notes of Mr. Madison or others indicating much difference of opinion. There had been trouble in compelling the payment of debt contracted with British subjects before the revolution in accordance with the treaty of peace, but all factions in the convention seemed to recognize that the provisions of treaties lawfully made should be complied with and it was only a question of the best method of expression. I find nothing necessary to be quoted except the following:

"On motion of Mr. Madison, seconded by Mr. Gouverneur Morris, Article 8 was reconsidered and after the words 'all treaties made' were inserted, Nem. Con., the words 'or shall be made.' This insertion was made to obviate all doubt concerning the force of treaties pre-existing. by making the words 'all treaties made' to refer to them, as the words. inserted would refer to future treaties." (Madison, Debates, Aug. 25.)

The State Conventions

In none of the northern state conventions was there much special discussion of the treaty power as likely to interfere with jurisdictions reserved to the states. At least very little such discussion got into the reports. There must have been some, however, for we find, July 7, John Lansing, a member of the New York convention and an opponent of the constitution, suggesting the following as one of the amendments to be recommended from New York:

"Resolved, as the opinion of this committee, that no treaty ought to operate so as to alter the constitution of any state; nor ought any

commercial treaty to operate so as to abrogate any law of the United States." (New York Debates, July 7.)

It was not recommended.

Also among the amendments proposed for the support of the Maryland convention was the following, which did not receive the approval of the convention:

"That no treaty shall be effectual to repeal or abrogate the constitutions or bills of rights of the states or any part of them." (Elliot, Vol. II, p. 553.)

In the Pennsylvania convention James Wilson said:

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"There is no doubt, Sir, but, under this constitution, treaties will become the supreme law of the land; nor is there any doubt but the President and Senate have the power of making them. In England, if the King and his ministers find themselves during their negotiations embarrassed because an existing law is not repealed, or a new law is not enacted, they give notice to the legislature of their situation, and inform them that it will be necessary before the treaty can operate, that some law be repealed or some made. And will not the same thing take place here? Shall less prudence, less caution, less moderation, take place among those who negotiate treaties for the United States than among those who negotiate them for the other nations of the earth?" (Pennsylvania Debates, Dec. 11.)

The treaty clauses were exhaustively debated in the Virginia and North Carolina conventions, but very largely with reference to the power of the President and Senate to alienate American territory. Both these states then extended to the Mississippi river, where they adjoined Spanish territory, while the British still retained possession of the forts in what is now Michigan. But the discussions in those conventions covered all phases of the subject and as the same views were presented in both states it will be sufficient to quote from the Virginia debates.

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MR. PATRICK HENRY: "Mr. Chairman. Gentlemen say that the King of Great Britain has the same right of making treaties that our President has here. * * It is contended that if the King of Great Britain makes a treaty within the line of his prerogative it is the law of the land. I agree that this is proper and if I could see the same checks in that paper which I see in the British government I would consent to it. Can the English monarch make a treaty which shall subvert the common law of England and the constitution? Dare he make a treaty that shall violate Magna Charta or the Bill of Rights? Dare he do anything derogatory to the honor, or subversive of the great privileges of his people? No, sir. If he did it would be nugatory and the attempt would endanger his existence." (Virginia Debates, June 18.)

Gov. RANDOLPH: "Mr. Chairman, I conceive that neither the life or property of any citizen, nor the particular right of any state can be affected by a treaty. * * * Will not the President and Senate be restrained? Being creatures of the constitution can they destroy it?" [Does not the constitution say] "that nothing in this constitution shall be so construed as to prejudice any claims of the United States or of any particular state?" (Virginia Debates, June 18.) MR. GEORGE NICHOLAS: * * * "The worthy member says that they can make a treaty relinquishing our rights, and inflicting punishments because all treaties are declared paramount to the constitutions and laws of the states. An attentive consideration will show that they can do no such thing. The provision of the Sixth Article is that this constitution * * * and all treaties made under the authority of the United States, shall be the supreme law of the land. They can, by this, make no treaty which shall be repugnant to the spirit of the constitution or inconsistent with the delegated powers. The treaties they make must be under the authority of the United States to be within their province." (Virginia Debates, June 18.)

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MR. GEORGE MASON: * "The President and Senate can make any treaty whatsoever. We wish not to refuse, but to guard their power, as it is done in England. We wish an express and implicit declaration in this paper that the power which can make other treaties cannot, without the consent of the National Parliament dismember the Empire. The Senate ought not, alone, to have this power." (Virginia Debates, June 18.)

MR. FRANCIS CORBIN:

"It is as clear as that two

and two make four that the treaties are to be made binding on the states only. Is it not necessary that they should be binding on the states? Fatal experience has proved that treaties would never be complied with if their observance depended on the will of the states; and the consequence would be constant war. For if any one state could counteract any treaty how could the United States avoid hostility with foreign nations? Do not gentlemen see the infinite dangers that would result from it, if a small part of the community could drag the whole confederacy into war?" (Virginia Debates, June 18.)

MR. PATRICK HENRY: "We are told that state rights are preserved. Suppose the state right to territory be preserved; I ask and demand how do the rights of persons stand when they have power to make a treaty and that treaty is paramount to constitutions, laws and everything? * * * How are the state rights, individual rights, and the national rights secured? If you look for a similar security" [similar to that of the British Parliament] "in the paper on your table you look in vain. That paper is defective without some declaration of rights. It is unbounded without such restrictions." (Virginia Debates, June 18.)

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MR. MADISON: "Does it follow, because this power is given to Congress that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire or

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