mously accepted, declared that treaties were to be "laws."27 Francis Corbin, a strong supporter of the Constitution in the Virginia Ratification Convention of 1788, was somewhat more specific: "It is as clear that two and two make four, that the treaties The intent of the made are to be binding on the states only. "28 framers is best reflected in the Federalist Papers, which remain to this day the most informed commentary on the meaning and purposes of the U.S. Constitution. John Jay, writing in Federalist No. 64, maintained that "[a]11 constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; .... treaties] are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any 1,29 future period.... (It should not be forgotten that Jay became the nation's first Chief Justice.) Alexander Hamilton added, in Federalist No. 69, that the sovereign authority of the federal executive exceeds that of the state executive in one significant 30 area--that of the treaty power. A careful reading of the Constitutional Convention debates, the Federalist essays, and various sessions of the special state conventions called to determine the outcome of ratification, shows that the supremacy clause with respect to treaties was not a major issue. Though there was some small concern over technical inter31 pretation, there was no controversy over its wording. The first significant political figure to manifest serious concern about treaty implications was Thomas Jefferson. His Manual of Parliamentary Practice, published while he was Vice-President, posited the view that "surely the President cannot do by treaty what the whole government is interdicted from doing any way.. Although modern commentators have held this to be an extreme minority view (since it has been linked with the reserved powers language of the 33 .... 32 Tenth Amendment), Jefferson may have had something else in mind. Namely, "those subjects which are usually regulated by treaty and cannot otherwise be regulated."34 The better interpretation, and one which has been curiously avoided by academic analysts, is that the framers understood the supremacy clause as it relates to the treaty-making power only in domestic legislation. Hamilton, in Federalist No. 75, focusing on the treaty-making powers of the president, clearly indicates that treaties are the product of foreign relations and political negotiations between sovereigns. There is no mention of any do 35 mestic devolution." Foreign affairs in the constitutional sense meant matters customarily in the hands of a sovereign executive. Another reason the conduct of foreign policy was assigned to the president was the fear of possible excesses on the part of the legislative branch (recalling the colonial experience under the British Parliament). Since there was no intention on the part 36 of the founding fathers to make treaty subject-matter analogous to domestic legislation, there was no manifest concern as to its possibility. This can be seen not only in Madison's brief comments during the drafting session in Philadelphia on August 23, 1787, but also in the failure of the Anti-Federalists to oppose 37 the supremacy clause in its treaty function. 38 Article III, Section 2, of the United States Constitution gives to the courts the power to decide cases or controversies resulting from disputes arising from treaties: The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.... Hamilton's essay in Federalist No. 80 indicates that treaties were 39 meant to be adjudicated, if they were challenged. The rules and precedents governing the treaty-making power have in fact been derived from litigation since the Jay Court of the Washington presidential era. Not that many general rules have actually been established. A number of them remain obscure to this day. The writings of commentators and publicists have sometimes created implications that do not exist and have expounded theories which cannot be derived from the language of the cases themselves. This explains, in large part, the confusion still prevalent over the treaty-making power and its relation to domestic legislation. Many of the legal principles traditionally associated with the supremacy clause and the treaty power are drawn from generalized dicta. These claims have been periodically renewed every genera Burger Court, where the dicta of one case becomes the rule in another, the jurisprudential history of the treaty power demonstrates that the dicta of one generation is revived or repeated in the dicta of succeeding generations. This curious historical development began just seven years after the establishment of the American constitutional republic with the much-cited case of Ware v. Hylton (1796),40 which invalidated a Virginia statute as being contrary to the supremacy clause. Admittedly, the difficulty of dicta is that lawyers and jurists rarely agree on what comprises mere personal opinion or what the distinguished legal scholar, Karl Llewellyn, called "wayside remarks." These may not only "shed light on the remarker", but they may also "be very useful in the future to him, or to us. identification of dicta and its proper role is complicated, however, by the fact that "[w]hat one judge calls the 'true role employed in a decision, another judge may describe as 'dictum'".42 41 The Ware v. Hylton represents such a conundrum. In the first of five seriatim opinions delivered by a per curiam court, Chase, J., laid out the basic tenets of the treaty power as it relates to the several states. Article VI, declared Chase, J., transforms the treaty power into the supreme law of the land, state courts and state constitutions notwithstanding. No act of a state legislature can be allowed to conflict with a treaty and state legislation must give way to treaty provisions when a treaty has entered into force. As long as a treaty is made under the authority of the United States (i.e.-according to constitutional requirements), both state and federal courts are required to recognize treaty ascendancy. Iredell, J., and Cushing, J., were in exact accord, with Iredell adding it was "indispensable" that treaties "be published for the information of all."44 43 A major problem arises, however, with the statement of Justice Cushing at the end of his opinion (the last of the five), wherein he declared that the treaty in question was "of equal force with the constitution itself", and then went on to add: "and certainly 45 with any law whatsoever. This is dicta pure and simple which puts forward a claim not to be made again for another 140 years! expectancy. Justice Chase likewise exceded the bounds of precedent, common law, and customary international law when he declared that the "modern law of nations" is obligatory not only on Virginia's courts and citizenry, but also "in my opinion, on all the Courts 46 This sweeping assertion, again pure of the United States. dicta, was not to be heard again in the federal courts for a century and three-quarters, until Judge Kaufman's U.S. Court of Appeals decision in Filartiga v. Pena Irala, where he made mention of "numerous decisions in applying rules of international law (Kaufman actually men uncodified in any act of Congress."47 tioned only three, the only case on point being none other than Ware v. Hylton.) Thus, a different kind of precedent had been established--one which would plague the courts and the constitutional system right down until the present day. The use of dicta to bolster further dicta, disguised as rules of law, is not new to constitutional jurisprudence, but nowhere is it more apparent than in case law relating to the treaty-making power and the supremacy clause of Article VI. The assumptions and the intentions of the framers have been gradually eroded over nearly two hundred years by judicial predilection, but not by the appropriate application of stare decisis. In light of future events, it is also fascinating to note the plaintiff's advocate, John Marshall at oral argument in Ware v. Hylton, challenged the idea that the Senate could approve a treaty which would then operate to annul 48 a state's legislative act. More than a third of a century later, as Chief Justice of the United States, he would adopt a different view. Nowhere in the aforementioned opinions was there any reference to the Tenth Amendment. The same obtains for the landmark decision of Foster v. Neilson (1829). the apex of his historic 49 Chief Justice John Marshall, at leadership of the nation's highest court, chose a dispute over land granted by the Spanish crown to articulate a vast extension of the treaty power concept. Marshall' goal pure and simple was to nationalize American constitutional law. His instrument to achieve those ends, in the words of the disting by whose broad strokes was hewn the highroad of a national des- In the Foster case the Chief Justice succeeded in transforming a personal theory into a legal presumption that had consequences far beyond Marshall's original expectations. Foster v. Neilson introduced the principle of self-executing treaties without reference to any case and without reference to particular Anglo-American state practice. A treaty is a contract, Marshall declared, and not a legislative act. But the United States Constitution, he added, by means of the supremacy clause, makes a treaty "regarded in Courts of justice as equivalent to an act of the legislature, whenever it operates of itself 51 without the aid of any legislative provision." From this slim sentence of personal observation, American treaty practice was transformed. The new principle was based on nothing more than Marshall's own personal belief, rather than a standard within the contemplation of the framers. A half-century later, the majority opinion in Hauenstein v. Lynham (1879) quoted verbatim the passage on the domestic application of treaties by Justice Chase in Ware v. Hylton (1796). But then, the Hauenstein decision added, the court does not concur in everything Chase wrote in the cited extract, but only makes reference to the fact that "it shows the views of a powerful legal mind at that early period, when the debates in the convention which framed the Constitution must have been fresh in the memory of the 52 leading jurists of the country. In other words, the Ware case is useful for general interpretation and nothing more. Yet, a leading American treatise on constitutional law strongly implies that Ware represents a strict limitation on the tenth amendment, whereas Hauenstein never even mentioned the tenth amendment! Nor, with respect to the operation of the treaty power, did it mention any case but that of Ware--and the latter was subject to unspecified qualifications by the Hauenstein court. Thus, in little less than a century, the U.S. Supreme Court had established a pattern of constitutional analysis with reference to the treaty power and Article VI that was to continue down until the present day. Concern over what the Court was 53 |