The treaty power and American federalism, Part II

Michigan Law Review

Volumn 99, Issue 1, 2000, Pages 98-132

  Bradley, Curtis A ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 0347420225     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290326     Document Type: Article

References (246)

1. Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390 (1998).
2. David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075 (2000).
3. For example, even though the scope of the treaty power has been vigorously debated throughout U.S. history - by serious scholars, prominent public officials, and federal judges - Golove proclaims that "the text and structure of the Constitution, as well as original intent, leave little room for serious debate." Id. at 1078.
4. Bradley, supra note 1, at 393.
5. Id. (quoting Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515,530 (1991)). For other examples of the nationalist view, see RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 302, 303 (1987) [hereinafter RESTATEMENT (THIRD)]; LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 189-93, 197 (2d ed. 1996); Gerald L. Neuman, The Global Dimension of RFRA, 14 CONST. COMMENTARY 33, 46 (1997).
6. Id. (quoting Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515,530 (1991)). For other examples of the nationalist view, see RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 302, 303 (1987) [hereinafter RESTATEMENT (THIRD)]; LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 189-93, 197 (2d ed. 1996); Gerald L. Neuman, The Global Dimension of RFRA, 14 CONST. COMMENTARY 33, 46 (1997).
7. Id. (quoting Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515,530 (1991)). For other examples of the nationalist view, see RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 302, 303 (1987) [hereinafter RESTATEMENT (THIRD)]; LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 189-93, 197 (2d ed. 1996); Gerald L. Neuman, The Global Dimension of RFRA, 14 CONST. COMMENTARY 33, 46 (1997).
8. Id. (quoting Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515,530 (1991)). For other examples of the nationalist view, see RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 302, 303 (1987) [hereinafter RESTATEMENT (THIRD)]; LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 189-93, 197 (2d ed. 1996); Gerald L. Neuman, The Global Dimension of RFRA, 14 CONST. COMMENTARY 33, 46 (1997).
9. Bradley, supra note 1, at 423, 433.
10. See City of Boeme v. Flores, 521 U.S. 507 (1997).
11. See, e.g., Neuman, supra note 5, at 52-53; Jeri Nazary Sute, Comment, Reviving RFRA: Congressional Use of Treaty-Implementing Powers to Protect Religious Exercise Rights, 12 EMORY INT'L L. REV. 1535, 1535-38 (1998).
12. Brief of Amici Curiae on Behalf of International Law Scholars and Human Rights Experts in Support of Petitioners at 28-30, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-0005, 99-0029). The Supreme Court held that a portion of the Act was invalid because it exceeded Congress's powers; the Court did not mention the treaty argument. United States v. Morrison, 529 U.S. 598 (2000).
13. See, e.g., Martin Flaherty, Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L. REV. 1277, 1279 (1999); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1260 (1995); Thomas Healy, Note, Is Missouri v. Holland Still Good Law? Federalism and the Treaty Power, 98 COLUM. L. REV. 1726 (1998); see also Neuman, supra note 5, at 52 (suggesting that the New York anti-commandeering decision may not be applicable to the treaty power); Gerald L. Neuman, The Nationalization of Civil Liberties Revisited, 99 COLUM. L. REV. 1630, 1650-55 (1999) (making same suggestion regarding the Printz anti-commandeering decision).
14. See, e.g., Martin Flaherty, Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L. REV. 1277, 1279 (1999); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1260 (1995); Thomas Healy, Note, Is Missouri v. Holland Still Good Law? Federalism and the Treaty Power, 98 COLUM. L. REV. 1726 (1998); see also Neuman, supra note 5, at 52 (suggesting that the New York anti-commandeering decision may not be applicable to the treaty power); Gerald L. Neuman, The Nationalization of Civil Liberties Revisited, 99 COLUM. L. REV. 1630, 1650-55 (1999) (making same suggestion regarding the Printz anti-commandeering decision).
15. See, e.g., Martin Flaherty, Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L. REV. 1277, 1279 (1999); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1260 (1995); Thomas Healy, Note, Is Missouri v. Holland Still Good Law? Federalism and the Treaty Power, 98 COLUM. L. REV. 1726 (1998); see also Neuman, supra note 5, at 52 (suggesting that the New York anti-commandeering decision may not be applicable to the treaty power); Gerald L. Neuman, The Nationalization of Civil Liberties Revisited, 99 COLUM. L. REV. 1630, 1650-55 (1999) (making same suggestion regarding the Printz anti-commandeering decision).
16. See, e.g., Martin Flaherty, Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L. REV. 1277, 1279 (1999); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1260 (1995); Thomas Healy, Note, Is Missouri v. Holland Still Good Law? Federalism and the Treaty Power, 98 COLUM. L. REV. 1726 (1998); see also Neuman, supra note 5, at 52 (suggesting that the New York anti-commandeering decision may not be applicable to the treaty power); Gerald L. Neuman, The Nationalization of Civil Liberties Revisited, 99 COLUM. L. REV. 1630, 1650-55 (1999) (making same suggestion regarding the Printz anti-commandeering decision).
17. Congress has substantial power, of course, to create supreme federal law in both the domestic and foreign affairs contexts. See, e.g., Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288 (2000) (finding that Congress had preempted a state statute that was designed to restrict trade with Burma). In addition, some treaties do not depend on the creation of supreme federal law for their efficacy, and those treaties would be unaffected by my proposed construction even if they exceeded Congress's powers. Cf. Head Money Cases, 112 U.S. 580, 598 (1884) ("[A treaty] depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.").
18. 252 U.S. 416 (1920).
19. See, e.g., Golove, supra note 2, at 1080 ("In Part I, I set out the basic textual and structural arguments that support the nationalist view."). Occasionally, including in the title of his article, Golove refers to the "nationalist conception." He appears to treat that phrase as synonymous with "nationalist view."
20. Id. at 1083.
21. Holland, 252 U.S. at 433 ("Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention."); see also Thomas Reed Powell, Constitutional Law in 1919-20, 19 MICH. L. REV. 1, 13 (1920) (noting that the Court's "hint that there may be no other test to be applied than whether the treaty has been duly concluded indicates that the Court might hold that specific constitutional limitations in favor of individual liberty and property are not applicable to deprivations wrought by treaties"). Some of the concerns regarding this language were resolved in Reid v. Covert, in which a plurality of the Court stated that, notwithstanding Holland, the treaty power was limited by the individual rights protections in the Bill of Rights. 354 U.S. 1, 16 (1957).
22. Golove, supra note 2, at 1084.
23. Golove contends that "[n]othing in the constitutional text suggests that treaties are free of the requirements of the separation of powers," Golove, supra note 2, at 1098 n.53, but that is also true of the requirements of federalism. The text provides that treaties are the supreme law of the land and that states may not enter into treaties, but it does not provide that there are no federalism limits on the scope of the treaty power. Golove further argues that separation of powers principles are different because they "do not limit the subject matter or content of treaties," but rather "only require that certain subject matters not be regulated in certain ways...." Id. at 1097 n.53. To the extent I understand this distinction, it appears to be inaccurate. If separation of powers limitations apply to the treaty power, they prevent treaties from making certain domestic changes (such as the creation of domestic criminal law or the appropriation of money) without the involvement of the House of Representatives. See, e.g., Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980); The Over the Top, 5 F.2d 838, 845 (D. Conn. 1925). Analogously, federalism limitations, if they apply to the treaty power, prevent treaties from making certain domestic changes without the states' consent.
24. Golove, supra note 2, at 1085.
25. Id. at 1086.
26. Golove argues that these decisions are different from the other federalism decisions because they concern only lack of power, not "affirmative constitutional immunities of states." Id. at 1087. Golove makes a similar distinction in an effort to explain the Supreme Court's use in the nineteenth century of the "equal footing" doctrine to limit the treaty power. Id. at 1231 n.519. As discussed below, Golove's formalistic distinction, which he never defends, appears to be at odds with recent Supreme Court decisions. See infra Part III.
27. See RESTATEMENT (THIRD), supra note 5, § 302 cmt. d (stating that, because of Holland, "the Tenth Amendment, reserving to the several States the powers not delegated to the United States, does not limit the power to make treaties or other agreements"); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW. PRINCIPLES AND POLICIES § 3.5.1, at 205 (1997) ("The Court [in Holland] ... rejected the claim that state sovereignty and the Tenth Amendment limit the scope of the treaty power."); id. § 4.6, at 273 (because of Holland, "treaties cannot be challenged as violating the Tenth Amendment and infringing state sovereignty"); RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 6.5, at 575 (3d ed. 1999) ("Any Tenth Amendment limitation on the federal treaty power was flatly rejected in the landmark case of Missouri v. Holland."); Carlos Manuel Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1343 (1999) ("[U]nless Missouri v. Holland is reconsidered, it appears that there are no limits on the treaty power grounded in state sovereignty.").
28. See RESTATEMENT (THIRD), supra note 5, § 302 cmt. d (stating that, because of Holland, "the Tenth Amendment, reserving to the several States the powers not delegated to the United States, does not limit the power to make treaties or other agreements"); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW. PRINCIPLES AND POLICIES § 3.5.1, at 205 (1997) ("The Court [in Holland] ... rejected the claim that state sovereignty and the Tenth Amendment limit the scope of the treaty power."); id. § 4.6, at 273 (because of Holland, "treaties cannot be challenged as violating the Tenth Amendment and infringing state sovereignty"); RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 6.5, at 575 (3d ed. 1999) ("Any Tenth Amendment limitation on the federal treaty power was flatly rejected in the landmark case of Missouri v. Holland."); Carlos Manuel Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1343 (1999) ("[U]nless Missouri v. Holland is reconsidered, it appears that there are no limits on the treaty power grounded in state sovereignty.").
29. See RESTATEMENT (THIRD), supra note 5, § 302 cmt. d (stating that, because of Holland, "the Tenth Amendment, reserving to the several States the powers not delegated to the United States, does not limit the power to make treaties or other agreements"); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW. PRINCIPLES AND POLICIES § 3.5.1, at 205 (1997) ("The Court [in Holland] ... rejected the claim that state sovereignty and the Tenth Amendment limit the scope of the treaty power."); id. § 4.6, at 273 (because of Holland, "treaties cannot be challenged as violating the Tenth Amendment and infringing state sovereignty"); RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 6.5, at 575 (3d ed. 1999) ("Any Tenth Amendment limitation on the federal treaty power was flatly rejected in the landmark case of Missouri v. Holland."); Carlos Manuel Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1343 (1999) ("[U]nless Missouri v. Holland is reconsidered, it appears that there are no limits on the treaty power grounded in state sovereignty.").
30. See RESTATEMENT (THIRD), supra note 5, § 302 cmt. d (stating that, because of Holland, "the Tenth Amendment, reserving to the several States the powers not delegated to the United States, does not limit the power to make treaties or other agreements"); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW. PRINCIPLES AND POLICIES § 3.5.1, at 205 (1997) ("The Court [in Holland] ... rejected the claim that state sovereignty and the Tenth Amendment limit the scope of the treaty power."); id. § 4.6, at 273 (because of Holland, "treaties cannot be challenged as violating the Tenth Amendment and infringing state sovereignty"); RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 6.5, at 575 (3d ed. 1999) ("Any Tenth Amendment limitation on the federal treaty power was flatly rejected in the landmark case of Missouri v. Holland."); Carlos Manuel Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1343 (1999) ("[U]nless Missouri v. Holland is reconsidered, it appears that there are no limits on the treaty power grounded in state sovereignty.").
31. See, e.g., Golove, supra note 2, at 1114-15 (Thomas Jefferson); 1140 (James Madison); 1235 (John Calhoun).
32. See, e.g., id. at 1193-1205, 1243-54.
33. Id. at 1235; see also id. at 1091 (quoting Calhoun).
34. JOHN C. CALHOUN, A DISQUISITION ON GOVERNMENT AND A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES 203 (Richard K. Cralle ed., 1851).
35. Id.; see also id. at 253 ("[T]he supremacy of laws and treaties is expressly restricted to such as are made in pursuance of the constitution, or under the authority of the United States; which can, in no case, extend beyond the delegated powers.") (emphasis added).
36. See Letter to Henry Wheaton from John Calhoun (June 28, 1844), in XIX THE PAPERS OF JOHN C. CALHOUN 211 (1990) ("From the beginning and throughout the whole existence of the Federal Government [the treaty power] has been exercised constantly on commerce, navigation, and other delegated powers to the almost entire exclusion of the reserved which, from their nature rarely ever come in question between us and other nations.").
37. Moreover, Calhoun actually did believe that there were some (modest) states' rights-related limitations on the treaty power: [The treatymakers] can enter into no stipulation calculated to change the character of the government; or to do that which can only be done by the constitution-making power; or which is inconsistent with the nature and structure of the government, - or the objects for which it was formed. Among which, it seems to be settled, that it cannot change or alter the boundary of a State, - or cede any portion of its territory without its consent. CALHOUN, supra note 25, at 204.
38. There are many similar examples of this problem in Golove's article. For example, Golove emphasizes statements in the Jay Treaty debates rejecting states' rights limitations, while neglecting to mention the many statements during the debates suggesting that the treaty power was limited at least by subject matter. Cf. Bradley, supra note 1, at 414-15 (quoting some of these statements); see also Charles A. Lofgren, Missouri v. Holland in Historical Perspective, 1975 SUP. CT. REV. 77, 112 (explaining that there was a "consensus" in the Jay Treaty debates that the treaty power was limited by subject matter).
39. Golove, supra note 2, at 1100; see also id. at 1079 (asserting that "the most recent attacks on Missouri contend that its holding finds no support in history").
40. Bradley, supra note 1, at 450 (emphasis added).
41. Id. at 429.
42. Id. at 433-50 (critiquing the textual and structural arguments in Holland).
43. See, e.g., Golove, supra note 2, at 1077 n.3, 1279.
44. See, e.g., id. at 1100, 1147 n.216, 1188.
45. Bradley, supra note 1, at 433.
46. Golove, supra note 2, at 1281; see also id. at 1086 ("A treaty that violates this [subject matter] limitation would be beyond the scope of the treaty power and thus would invade the sphere 'reserved' to the states by the Tenth Amendment.").
47. 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1396 (John P. Kaminski & Gaspare J. Saladino eds., 1993) [hereinafter 10 DOCUMENTARY HISTORY].
48. 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1396 (John P. Kaminski & Gaspare J. Saladino eds., 1993) [hereinafter 10 DOCUMENTARY HISTORY].
49. CALHOUN, supra note 25, at 203.
50. Statement of Charles Evans Hughes, 1929 AM. SOC'Y INT'L L. PROC. 194, 194-96.
51. Golove's proposed subject matter limitation is also ahistorical, a point which I return to in Part IV, infra.
52. Golove, supra note 2, at 1100 n.61, 1288-90.
53. Damrosch, supra note 5, at 530 (emphasis added).
54. BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 176 (3d ed. 1999) (emphasis added).
55. Louis Henkin, "International Concern" and the Treaty Power of the United States, 63 AM. J. INT'L L. 272, 273 (1969) (editorial comment).
56. RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 117(1)(a) & cmt. b (1965).
57. RESTATEMENT (THIRD), supra note 5, § 303 cmt. b (emphasis added).
58. Id. § 302 cmt. b.
59. Id. § 302 cmt. c.; see also Golove, supra note 2, at 1290 n.728.
60. Moreover, the sentence in the Restatement (Third) immediately preceding the one Golove quotes invokes international law in a way that directly contradicts Golove's own proposed subject matter test. Whereas Golove's test would look to the purpose of the U.S. treatymakers, see infra note 53, the Restatement (Third) says: "States may enter into an agreement on any matter of concern to them, and international law does not look behind their motives or purposes in doing so." RESTATEMENT (THIRD), supra note 5, § 302 cmt. c.
61. See, e.g., Golove, supra note 2, at 1289-90 (stating that the "international" subject matter requirement is "unjustifiable" and has been "widely rejected").
62. See, e.g., id. at 1291 n.730.
63. Id. at 1090 n.41; see also id. at 1287, 1291 n.730. Golove describes this test as his "own interpretation" of the subject matter limitation on the treaty power. Id. at 1287; see also id. at 1090 n.41 ("I interpret this [subject matter] requirement to mean that the President and Senate can make any treaty which advances the national interests of the United States in its relations with other nations.").
64. See, e.g., Regan v. Wald, 468 U.S. 222, 242-43 (1984) (referring to the "traditional deference to executive judgment '[in] this vast external realm' ") (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)); Haig v. Agee, 453 U.S. 280, 292 (1981) ("Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.").
65. See, e.g., Golove, supra note 2, at 1095 (acknowledging that "the President and Senate have a virtual carte blanche" in determining "the scope of the national interests ... to safeguard and advance through foreign negotiations"); id. at 1262 n.623 (noting the "traditional - and continuing - judicial reluctance to second-guess the motives of the political branches, particularly in the field of foreign affairs"); id. at 1292 ("For obvious reasons, courts do not feel free to second-guess the political branches on whether a treaty furthers our foreign policy interests.").
66. Like most commentators, Golove would require that there be an actual agreement between nations rather than a "mock marriage." See, e.g., Golove, supra note 2, at 1090 n.41. But, as others have noted, that is not a subject matter limitation. See Henkin, supra note 45, at 274 (stating that the mock treaty limitation "does not suggest any limitations as to the subject matter of treaties").
67. See, e.g., Golove, supra note 2, at 1090 n.41, 1205 n.420, 1302-03 n.771.
68. Id. at 1078, 1298 n.756. Golove states that such a death penalty treaty "could plausibly be attacked as an abuse of the treaty power," but that, because it would "serve a foreign policy purpose," it would "thus be constitutional." Id. at 1298 n.756.
69. See, e.g., id. at 1092 n.45, 1302.
70. See Jack Goldsmith, International Human Rights Law and the United States Double Standard, 1 GREEN BAG 2D 365, 369-71 (1998) (explaining this point).
71. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28).
72. U.N. GAOR, Hum. Rts. Comm., 52d Sess., 1382d mtg. at 7, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994).
73. The Inter-American Court on Human Rights has stated that "modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States." Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion No. OC-2/82, Inter-Am. Ct. H.R., ser. A: Judgments and Opinions, No. 2, ¶ 29 (1982), reprinted in 22 I.L.M. 37, 47 (1983). And the European Court of Human Rights has described the European Convention on Human Rights as "[u]nlike international treaties of the classic kind" because "the Convention comprises more than mere reciprocal engagements between contracting States." Ireland v. United Kingdom, 25 Eur. Ct. H.R. (Ser. A) at 90 (1978).
74. See Standing Committee on Peace and Law Through United Nations, American Bar Association, Human-Rights Conventions and Recommendations, 1 INT'L LAW. 600, 600-01 (1967).
75. See Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 152-56 (1972); Louis Henkin, The Constitution, Treaties, and International Human Rights, 116 U. PA. L. REV. 1012, 1014-15 (1968); Henkin, supra note 45 and accompanying text.
76. See Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 152-56 (1972); Louis Henkin, The Constitution, Treaties, and International Human Rights, 116 U. PA. L. REV. 1012, 1014-15 (1968); Henkin, supra note 45 and accompanying text.
77. RESTATEMENT (THIRD), supra note 5, § 302 reporters' note 2. Of course, the Restatement (Third) uses the passive voice here, leaving it unclear exactly who did the abandoning. But that is another issue. See Bradley, supra note 1, at 432-33. Although Professor Louis Henkin was the Chief Reporter for the Restatement (Third), my criticisms of it do not, as Golove puts it, "call[] Professor Henkin's integrity into question." Golove, supra note 2, at 1290.
78. Despite insisting that human rights are proper subjects for the treaty power, Golove asserts at times that treaties must involve mutuality and reciprocity. See, e.g., Golove, supra note 2, at 1089, 1093, 1302. On this basis, Golove criticizes Professor G. Edward White for his suggestion that the migratory birds problem in Holland might have been addressed without resort to a treaty. See G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1, 71 & n.246 (1999). According to Golove, White "seems fundamentally to misunderstand the purpose of treaties," which, says Golove, concern "tragedy of the commons" problems that cannot be solved by unilateral acts. Golove, supra note 2, at 1259 n.624. It is Golove, however, who seems to "fundamentally misunderstand" the nature of human rights treaties, since those treaties do not, in fact, concern tragedy of the commons problems. The United States still has strong incentives to protect the human rights of its citizens even if China, for example, fails to do the same. Golove also errs in asserting that "[t]reaties and legislation are of essentially different characters, and to equate them is to make a category mistake of the first magnitude." Id. at 1093. By virtue of the Supremacy Clause, self-executing treaties ratified by the United States have the status of federal legislation. This distinguishes the treaty power from other Article II powers, such as the power to receive and appoint ambassadors. Moreover, under the well-settled "last-in-time" rule, treaties are accorded essentially the same domestic law status as federal legislation. Bradley, supra note 1, at 457. Golove's categorical distinction also fails to take account of modern multilateral treaties, many of which resemble and are designed to operate like domestic legislation. Id. at 396-97. Finally, his distinction is at odds with his own position on congressional-executive agreements, which allows statutes to take the place of treaties. See infra text accompanying notes 73-75.
79. Golove, supra note 2, at 1298.
80. Bradley, supra note 1, at 440-45.
81. Id. at 442-43.
82. Golove, supra note 2, at 1307-08.
83. RESTATEMENT (THIRD), supra note 5, § 303 cmt. e ("The prevailing view is that the Congressional-Executive agreement can be used as an alternative to the treaty method in every instance." (emphasis added)); id. § 302 cmt. d ("[T]he Tenth Amendment, reserving to the several States the powers not delegated to the United States, does not limit the power to make treaties or other agreements." (emphasis added)); HENKIN, supra note 5, at 217 (stating that the congressional-executive agreement "is a complete alternative to a treaty").
84. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 805 & n.12 (1995) (citing the Restatement (Third) for the proposition that "there is no significant difference between the legal effect of a congressional-executive agreement and the classical treaty approved by two thirds of the Senate" and stating that the Restatement (Third) "expresses the widely prevailing view"); David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791, 1799 (1998) ("The longstanding majority view, and the settled practice, is that treaties and congressional-executive agreements, whether ex ante or ex post, are wholly interchangeable." (emphasis added)).
85. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 805 & n.12 (1995) (citing the Restatement (Third) for the proposition that "there is no significant difference between the legal effect of a congressional-executive agreement and the classical treaty approved by two thirds of the Senate" and stating that the Restatement (Third) "expresses the widely prevailing view"); David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791, 1799 (1998) ("The longstanding majority view, and the settled practice, is that treaties and congressional-executive agreements, whether ex ante or ex post, are wholly interchangeable." (emphasis added)).
86. Ackerman & Golove, supra note 73, at 844.
87. Id. at 857-60. This transformation, according to Ackerman and Golove, involved, among other things, a recognition by the Supreme Court of broad unenumerated foreign affairs powers - most notably in Justice Sutherland's opinion for the Court in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Id. at 858-59. In his response to my article, however, Golove states that he does "not accept Justice Sutherland's notion of unenumerated foreign affairs powers and [is] skeptical about whether the Court today would still endorse his views." Golove, supra note 2, at 1089 n.36.
88. United States v. Morrison, 120 S. Ct. 1740 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997); United States v. Lopez, 514 U.S. 549 (1995).
89. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
90. See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996).
91. See, e.g., Bradley, supra note 1, at 394 ("I am not defending here the value of federalism, or judicial review of federalism, subjects that have generated enormous literature.").
92. I am not alone in raising that question. Professor Erwin Chemerinsky, for example, notes in his recent treatise on constitutional law that "[i]f a particular law violates the Tenth Amendment ... by placing an undue burden on state governments, then it is questionable why the same action would be constitutional if undertaken through a treaty." CHEMERINSKY, supra note 21, at 274. Similarly, a recent casebook on constitutional law lists Missouri v. Holland as a potential candidate for rethinking or overruling in light of the Supreme Court's recent federalism jurisprudence. DANIEL A. FARBER ET AL., CASES AND MATERIALS ON CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 850 (2d ed. 1998). For other commentary considering the effect of the Supreme Court's federalism decisions on the scope of the treaty power, see, for example, Flaherty, supra note 10; Vázquez, supra note 21; James A. Deeken, Note, A New Miranda For Foreign Nationals? The Impact of Federalism on International Treaties that Place Affirmative Obligations on State Governments in the Wake of Printz v. United States, 31 VAND. J. TRANSNAT'L L. 997 (1998); Healy, supra note 10; Gavin R. Villareal, Note, One Leg to Stand On: The Treaty Power and Congressional Authority for the Endangered Species Act After United States v. Lopez, 76 TEXAS L. REV. 1125 (1998); and Omar N. White, Comment, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215 (2000).
93. I am not alone in raising that question. Professor Erwin Chemerinsky, for example, notes in his recent treatise on constitutional law that "[i]f a particular law violates the Tenth Amendment ... by placing an undue burden on state governments, then it is questionable why the same action would be constitutional if undertaken through a treaty." CHEMERINSKY, supra note 21, at 274. Similarly, a recent casebook on constitutional law lists Missouri v. Holland as a potential candidate for rethinking or overruling in light of the Supreme Court's recent federalism jurisprudence. DANIEL A. FARBER ET AL., CASES AND MATERIALS ON CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 850 (2d ed. 1998). For other commentary considering the effect of the Supreme Court's federalism decisions on the scope of the treaty power, see, for example, Flaherty, supra note 10; Vázquez, supra note 21; James A. Deeken, Note, A New Miranda For Foreign Nationals? The Impact of Federalism on International Treaties that Place Affirmative Obligations on State Governments in the Wake of Printz v. United States, 31 VAND. J. TRANSNAT'L L. 997 (1998); Healy, supra note 10; Gavin R. Villareal, Note, One Leg to Stand On: The Treaty Power and Congressional Authority for the Endangered Species Act After United States v. Lopez, 76 TEXAS L. REV. 1125 (1998); and Omar N. White, Comment, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215 (2000).
94. I am not alone in raising that question. Professor Erwin Chemerinsky, for example, notes in his recent treatise on constitutional law that "[i]f a particular law violates the Tenth Amendment ... by placing an undue burden on state governments, then it is questionable why the same action would be constitutional if undertaken through a treaty." CHEMERINSKY, supra note 21, at 274. Similarly, a recent casebook on constitutional law lists Missouri v. Holland as a potential candidate for rethinking or overruling in light of the Supreme Court's recent federalism jurisprudence. DANIEL A. FARBER ET AL., CASES AND MATERIALS ON CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 850 (2d ed. 1998). For other commentary considering the effect of the Supreme Court's federalism decisions on the scope of the treaty power, see, for example, Flaherty, supra note 10; Vázquez, supra note 21; James A. Deeken, Note, A New Miranda For Foreign Nationals? The Impact of Federalism on International Treaties that Place Affirmative Obligations on State Governments in the Wake of Printz v. United States, 31 VAND. J. TRANSNAT'L L. 997 (1998); Healy, supra note 10; Gavin R. Villareal, Note, One Leg to Stand On: The Treaty Power and Congressional Authority for the Endangered Species Act After United States v. Lopez, 76 TEXAS L. REV. 1125 (1998); and Omar N. White, Comment, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215 (2000).
95. I am not alone in raising that question. Professor Erwin Chemerinsky, for example, notes in his recent treatise on constitutional law that "[i]f a particular law violates the Tenth Amendment ... by placing an undue burden on state governments, then it is questionable why the same action would be constitutional if undertaken through a treaty." CHEMERINSKY, supra note 21, at 274. Similarly, a recent casebook on constitutional law lists Missouri v. Holland as a potential candidate for rethinking or overruling in light of the Supreme Court's recent federalism jurisprudence. DANIEL A. FARBER ET AL., CASES AND MATERIALS ON CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 850 (2d ed. 1998). For other commentary considering the effect of the Supreme Court's federalism decisions on the scope of the treaty power, see, for example, Flaherty, supra note 10; Vázquez, supra note 21; James A. Deeken, Note, A New Miranda For Foreign Nationals? The Impact of Federalism on International Treaties that Place Affirmative Obligations on State Governments in the Wake of Printz v. United States, 31 VAND. J. TRANSNAT'L L. 997 (1998); Healy, supra note 10; Gavin R. Villareal, Note, One Leg to Stand On: The Treaty Power and Congressional Authority for the Endangered Species Act After United States v. Lopez, 76 TEXAS L. REV. 1125 (1998); and Omar N. White, Comment, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215 (2000).
96. Bradley, supra note 1, at 392 n.9 (quoting South Carolina v. Baker, 485 U.S. 505, 511 n.5 (1988) (alteration in original)).
97. Golove, supra note 2, at 1083-88, 1279-86.
98. Id. at 1078. Similarly, Golove dismisses the Founders' emphasis on the limited and enumerated powers principle in a footnote, saying simply that the principle (and other points emphasized by the Founders) "provide[s] little or no interpretive guidance." Id. at 1149 n.222.
99. Id. at 1088.
100. Id. at 1281-82; see also id. at 1086-87.
101. Id. at 1083-84, 1285-86.
102. 469 U.S. 528 (1985).
103. Id. at 549.
104. Id. at 552.
105. See generally John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997) (describing the Court's steady movement away from Garcia since 1991).
106. 501 U.S. 452 (1991).
107. Id. at 457-58.
108. Id. at 460.
109. Id. at 464.
110. 505 U.S. 144, 161 (1992).
111. Id. at 173.
112. Id. at 155.
113. Id. at 181 (emphasis added). Justice Powell had made this same point in his dissent in Garcia: One can hardly imagine this Court saying that because Congress is composed of individuals, individual rights guaranteed by the Bill of Rights are amply protected by the political process. Yet, the position adopted today is indistinguishable in principle. The Tenth Amendment also is an essential part of the Bill of Rights. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 565 n.8 (1985) (Powell, J., dissenting).
114. See, e.g., New York v. United States, 505 U.S. at 188 ("The Constitution ... 'leaves to the several States a residuary and inviolable sovereignty' ... reserved explicitly to the States by the Tenth Amendment." (citation omitted)).
115. Id. at 156 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).
116. See, e.g., id. at 177 ("Whether one views the take title provision as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.").
117. Golove, supra note 2, at 1280-81 & n.702.
118. New York v. United States, 505 U.S. at 156.
119. 521 U.S. 898 (1997).
120. Id. at 923-24.
121. Id. at 935-36 (O'Connor, J., concurring) ("The Brady Act violates the Tenth Amendment ...."); id. at 936 (Thomas, J., concurring) ("The Court today properly holds that the Brady Act violates the Tenth Amendment ...."). The dissent in Printz argued, like Golove, that the Tenth Amendment "imposes no restriction on the exercise of delegated powers." Id. at 941 (Stevens, J., dissenting).
122. 528 U.S. 141 (2000).
123. Id. at 149 (emphasis added).
124. See United States v. Lopez, 514 U.S. 549, 552 (1995); City of Boerne v. Flores, 521 U.S. 507, 516 (1997). Golove dramatically invokes Chief Justice Marshall's famous national power decisions, stating that "few would doubt that Professor Bradley's view is inconsistent with the great opinions of the Marshall Court in, inter alia, McCulloch and Gibbons." Golove, supra note 2, at 1282 n.706. As the Court observed in Lopez, however, McCulloch and Gibbons themselves emphasized the limited and enumerated powers principle. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) ("This [federal] government is acknowledged by all to be one of enumerated powers."); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824) ("The enumeration presupposes something not enumerated ...."). The same can be said about another famous Marshall decision. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) ("The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.").
125. City of Boerne, 521 U.S. at 518 (quoting Oregon v. Mitchell, 400 U.S. 112, 128 (1970) (alteration in original)).
126. 120 S. Ct. 1740 (2000).
127. Id. at 1748.
128. Id. at 1752.
129. Id. at 1753 n.7 ("As we have repeatedly noted, the Framers crafted the federal system of government so that the people's rights would be secured by the division of power.").
130. Id. at 1754 n.8.
131. Id. at 1755 (quoting Oregon v. Mitchell, 400 U.S. 112, 128 (1970) (alteration in original)). Missouri v. Holland was invoked in Morrison - by the dissent. See id. at 1770 n.18 (Souter, J., dissenting).
132. 517 U.S. 44 (1996).
133. Id. at 72.
134. Id. at 54.
135. 527 U.S. 706 (1999).
136. Id. at 748. Like the dissent in Morrison, the dissent in Alden cited Missouri v. Holland. Id. at 807 (Souter, J., dissenting). Shortly before this Article went to print, the Supreme Court decided Solid Waste Agency, Inc. v. United States Army Corps of Eng'rs, No. 99-1178, 2001 U.S. LEXIS 640 (Jan. 9, 2001). In that decision, the Court held that the Army Corps of Engineers had improperly construed a provision in the Clean Water Act as conferring federal authority over isolated, intrastate bodies of water that are used as habitats by migratory birds. Id. at *7. That construction of the Act, the Court reasoned, would "raise significant constitutional questions." Id. at *25. The Court noted that it was reaching this conclusion notwithstanding the statement in Missouri v. Holland that the protection of migratory birds is a "national interest of very nearly the first magnitude." Id.
137. The Court also applies federalism-protecting clear statement rules in all strands of its federalism jurisprudence. For recent examples, see Solid Waste Agency, Inc. v. United States Army Corps of Eng'rs, No. 99-1178, 2001 U.S. LEXIS 640 (Jan. 9, 2001); Jones v. United States, 120 S. Ct. 1904 (2000); and Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 S. Ct. 1858 (2000). The treaty power has not been immune from such clear statement rules, either before or after Holland. See Guaranty Trust Co. v. United States, 304 U.S. 126, 143 (1938) ("Even the language of a treaty wherever reasonably possible will be construed so as not to override state laws or to impair rights arising under them.") (collecting cases).
138. See, e.g., College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999) ("State sovereign immunity, no less than the right to trial by jury in criminal cases, is constitutionally protected.").
139. See Breard v. Greene, 523 U.S. 371, 376-77 (1998); see also Alden, 527 U.S. at 725 (noting that, when it approved the Eleventh Amendment, Congress considered and rejected an exception for cases arising under treaties).
140. Contrast this with the more defensible approach by Professor Martin Flaherty, who argues that the same scrutiny that I applied in my original article against the nationalist view should be applied to question the Supreme Court's federalism jurisprudence. Flaherty, supra note 10.
141. Golove, supra note 2, at 1310; see also id. at 1279 (describing my proposal as "entirely without support in the Constitution").
142. Id. at 1101; see also id. at 1081 ("Contrary to the speculations of even some of Holmes's most sensitive interpreters, the opinion ultimately rests on standard constitutional premises (text, structure, precedent, and history) - indeed, originalist premises - not on an extraordinary theory of inherent foreign affairs powers or even on a view of the Constitution as an evolving or living text." (emphasis added)). In fact, given that the Court in Holland did not even refer to the Founding materials, Golove is being quite creative in describing it as an originalist decision.
143. Id. at 1288, 1290-91.
144. Bradley, supra note 1, at 409-10.
145. Id. at 450.
146. Golove, supra note 2, at 1092 n.45.
147. See generally Symposium, Fidelity in Constitutional Theory, 65 FORDHAM L. REV. 1247 (1997) (discussing various types of originalism).
148. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 251-65 (1990).
149. Lawrence Lessig, Fidelity in Translation, 71 TEXAS L. REV. 1165 (1993); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995).
150. Lawrence Lessig, Fidelity in Translation, 71 TEXAS L. REV. 1165 (1993); Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995).
151. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
152. See, e.g., Ackerman & Golove, supra note 73; David Golove, From Versailles to San Francisco: the Revolutionary Transformation of the War Powers, 70 U. COLO. L. REV. 1491 (1999).
153. Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1271-74 (1999); Peter J. Spiro, The States and International Human Rights, 66 FORDHAM L. REV. 567, 576-78 (1997).
154. Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1271-74 (1999); Peter J. Spiro, The States and International Human Rights, 66 FORDHAM L. REV. 567, 576-78 (1997).
155. See RESTATEMENT (THIRD), supra note 5, pt. VII introductory note, at 144; MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 253-57 (3d ed. 1999). For a discussion of the pre-World War II international law protections for human rights, see LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 169-73 (1995).
156. See RESTATEMENT (THIRD), supra note 5, pt. VII introductory note, at 144; MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 253-57 (3d ed. 1999). For a discussion of the pre-World War II international law protections for human rights, see LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 169-73 (1995).
157. U. N. CHARTER, art. 1, para. 3 (stating that one of the purposes of the United Nations is to "promot[e] and encourag[e] respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion"); id. art. 55 (stating that the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"); id. art. 56 ("All Members pledge themselves to take joint and separate action in cooperation with the [United Nations] Organization for the achievement of the purposes set forth in Article 55.").
158. G. A. Res. 217(A)(III), U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948).
159. The International Covenant on Civil and Political Rights, among other things, grants a right of self-determination, guarantees equal treatment, protects the "right to life" as well as "liberty and security of person," prohibits certain criminal punishments (including certain uses of the death penalty), requires various criminal procedures, limits immigration-related measures, bars "arbitrary or unlawful interference with ... privacy, family, home or correspondence," and protects "the right to freedom of thought, conscience and religion" and the "right to freedom of association with others." G.A. Res. 2200A (XXI) U.N. GAOR (1966).
160. See, e.g., Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects, 63 WASH. L. REV. 1 (1988); Louis Henkin, Human Rights and State "Sovereignty", 25 GA. J. INTL. & COMP. L. 31, 36 (1995-96); John P. Humphrey, The Revolution in the Law of Human Rights, 4 HUM. RTS. 205 (1975); Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 AM. U. L. REV. 1 (1982).
161. See, e.g., Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects, 63 WASH. L. REV. 1 (1988); Louis Henkin, Human Rights and State "Sovereignty", 25 GA. J. INTL. & COMP. L. 31, 36 (1995-96); John P. Humphrey, The Revolution in the Law of Human Rights, 4 HUM. RTS. 205 (1975); Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 AM. U. L. REV. 1 (1982).
162. See, e.g., Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects, 63 WASH. L. REV. 1 (1988); Louis Henkin, Human Rights and State "Sovereignty", 25 GA. J. INTL. & COMP. L. 31, 36 (1995-96); John P. Humphrey, The Revolution in the Law of Human Rights, 4 HUM. RTS. 205 (1975); Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 AM. U. L. REV. 1 (1982).
163. See, e.g., Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects, 63 WASH. L. REV. 1 (1988); Louis Henkin, Human Rights and State "Sovereignty", 25 GA. J. INTL. & COMP. L. 31, 36 (1995-96); John P. Humphrey, The Revolution in the Law of Human Rights, 4 HUM. RTS. 205 (1975); Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 AM. U. L. REV. 1 (1982).
164. See, e.g., Treaties and Executive Agreements: Hearings on S.J. Res. 1 and S.J. Res. 43 Before a Subcomm. of the Senate Comm. on the Judiciary, 83d Cong. (1953).
165. See generally NATALIE HEVENER KAUFMAN, HUMAN RIGHTS TREATIES AND THE SENATE (1990); DUANE TANANBAUM, THE BRICKER AMENDMENT CONTROVERSY: A TEST OF EISENHOWER'S POLITICAL LEADERSHIP (1988).
166. See generally NATALIE HEVENER KAUFMAN, HUMAN RIGHTS TREATIES AND THE SENATE (1990); DUANE TANANBAUM, THE BRICKER AMENDMENT CONTROVERSY: A TEST OF EISENHOWER'S POLITICAL LEADERSHIP (1988).
167. For example, some versions of the Bricker Amendment provided that "[a] treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty." TANANBAUM, supra note 144, at 224.
168. For example, some versions of the Bricker Amendment provided that "[e]xecutive agreements shall not be made in lieu of treaties." Id. at 222.
169. See TANANBAUM, supra note 144, at 180.
170. Treaties and Executive Agreements: Hearings Before a Subcomm. of the Senate Comm. on the Judiciary, 83d Cong., 825 (1953).
171. Hearing on S.J. Res. 1 Before a Subcomm. of the Senate Judiciary Comm., 84th Cong., 183 (1955).
172. U.S. State Dep't Circular No. 175, para. 2 (Dec. 13, 1955), reprinted in 50 AM. J. INT'L L. 784, 785 (1956).
173. See generally Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399 (2000) (describing this development).
174. U.S. Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 102d Cong., 138 CONG. REC. 8071, ¶ 11(5) (1992).
175. 523 U.S. 371 (1998).
176. Id. at 374.
177. Brief for the United States as Amicus Curiae at 51, Breard v. Greene, 523 U.S. 371 (1998) (No. 97-1390). In this respect, the circumstances of the Breard case are similar to those of an earlier case involving a different international tribunal. In the mid-1980s, two individuals on death row - one in South Carolina and one in Texas - filed complaints with the Inter-American Commission on Human Rights alleging that their death sentences violated international law. The Commission asked the U.S. State Department to stay the executions while it considered the complaints. The State Department declined to do so, explaining that, under the U.S. federal system, there was no basis for executive branch intervention in the implementation of the sentences. See Case 9647 (Roach & Pinkerton v. United States), Inter.-Am. C.H.R. 147, OEA/Ser.L/V/II.71, doc. 9, rev. 1, ¶¶ 11, 18 (1987).
178. Golove, supra note 2, at 1312. I should make clear that I am not myself a proponent of constitutional moments originalism, in part because the theory appears to me to be too manipulable, with proponents of this theory finding only the constitutional moments that they like. For this and other criticisms of the theory, see RICHARD A. POSNER, OVERCOMING LAW, ch. 7 (1995); Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759 (1992); and Tribe, supra note 10.
179. Golove, supra note 2, at 1312. I should make clear that I am not myself a proponent of constitutional moments originalism, in part because the theory appears to me to be too manipulable, with proponents of this theory finding only the constitutional moments that they like. For this and other criticisms of the theory, see RICHARD A. POSNER, OVERCOMING LAW, ch. 7 (1995); Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759 (1992); and Tribe, supra note 10.
180. See, e.g., Martin S. Flaherty, History "Lite" in Modem American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; John Phillip Reid, Law and History, 27 LOY. L.A. L. REV. 193 (1993); Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 CHI.-KENT L. REV. 909 (1996).
181. See, e.g., Martin S. Flaherty, History "Lite" in Modem American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; John Phillip Reid, Law and History, 27 LOY. L.A. L. REV. 193 (1993); Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 CHI.-KENT L. REV. 909 (1996).
182. See, e.g., Martin S. Flaherty, History "Lite" in Modem American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; John Phillip Reid, Law and History, 27 LOY. L.A. L. REV. 193 (1993); Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 CHI.-KENT L. REV. 909 (1996).
183. See, e.g., Martin S. Flaherty, History "Lite" in Modem American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; John Phillip Reid, Law and History, 27 LOY. L.A. L. REV. 193 (1993); Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 CHI.-KENT L. REV. 909 (1996).
184. See, e.g., Golove, supra note 2, at 1149 n.22, 1205 n.421, 1225 n.499, 1234 n.528.
185. See, e.g., id. at 1112, 1118-20, 1151 n.225, 1241-42 & n.552, 1272.
186. Id. at 1222.
187. Id. at 1236.
188. Id. at 1274, 1275.
189. See, e.g., id. at 1210-37, 1249-57.
190. Id. at 1111.
191. Id. at 1139-40.
192. Id. at 1182-83. Golove's main evidence for this assertion is that Madison visited Jefferson's house shortly before writing the statements in question. Id.
193. Id. at 1115, 1130-32.
194. Id. at 1179, 1187.
195. Id. at 1189-93.
196. Id. at 1117, 1120, 1150-51 n.225.
197. See, e.g., id at 1137 & n.178.
198. For example, Golove dismisses Attorney General William Wirt's states' rights views as "a too hasty judgment without adequate consideration and research," id. at 1205 n.421, but later relies on other statements by Wirt that seem more helpful to his arguments, see id. at 1222 n.490; dismisses Edward Livingston at one point, see id. at 1176 n.309, but embraces him at another, see id. at 1225; and relies on Hamilton Fish when he sounds nationalistic, see id. at 1239, but not when he expressly supports states' rights limitations on the treaty power, see id. at 1242 n.552.
199. Id. at 1102-03.
200. Report from John Jay (Oct. 13, 1796), reprinted in 4 SECRET JOURNALS OF
201. Golove, supra note 2, at 1120 n.120.
202. See, e.g., id. at 1153 n.234, 1216 n.465, 1228 n.510, 1243, 1247.
203. Golove does not cite a single Supreme Court decision before Holland clearly holding, or even clearly suggesting, that a treaty provision was beyond Congress's legislative powers yet nevertheless valid. Several Supreme Court Justices in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), made such a suggestion, but they were discussing Congress's (much narrower) powers under the Articles of Confederation rather than under the Constitution. Golove, supra note 2, at 1151-53.
204. Id. at 1210-37.
205. 8 F. Cas. 493, 494 (C.C.D.S.C. 1823).
206. Golove, supra note 2, at 1216.
207. Id. at 1222 nn.490-91 and accompanying text.
208. See Validity of the S.C. Police Bill, 1 Op. Att'y Gen. 659 (1824).
209. Golove, supra note 2, at 1222 n.490.
210. See Right of Aliens to Hold Property, 1 Op. Att'y Gen. 275 (1819). Wirt's successor, Attorney General John Berrien, also rejected the nationalist view. See 2 Op. Att'y Gen. 426 (1831).
211. See Right of Aliens to Hold Property, 1 Op. Att'y Gen. 275 (1819). Wirt's successor, Attorney General John Berrien, also rejected the nationalist view. See 2 Op. Att'y Gen. 426 (1831).
212. Id. at 1139.
213. See, e.g., SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 38-43 (1904); 1 GEORGE TICKNOR CURTIS, HISTORY OF THE CONSTITUTION OF THE UNITED STATES 280-85 (New York, Harper & Bros. 1860). Contrary to what Golove claims, these states' rights objections were not based on specific limitations in the Articles of Confederation. See Golove, supra note 2, at 1108-11. For example, objections were raised against an alien property provision in a proposed treaty with the Netherlands on the ground that, in James Madison's words, the provision might "encroach on the rights reserved by the federal articles to the individual States." James Madison, Report on Treaty with the Netherlands (July 12, 1782), in 4 THE PAPERS OF JAMES MADISON 411. Subsequently, John Adams decided not to attempt to include the real property component of this provision in the treaty because, as he explained to the Dutch ministers, "Congress had not authority to do this, it being a matter of the interior policy of the separate States." Letter from John Adams to Robert Livingston (Oct. 8, 1782), in 5 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 803, 804 (Francis Wharton ed., Washington, Government Printing Office 1889). Neither Madison nor Adams made any reference in these statements to specific limitations in the Articles, and it is hard to see how any of those limitations (which concerned state imposts and duties) would even be relevant. Golove further contends that Congress "disagreed with Adams's constitutional claim," Golove, supra note 2, at 1112-13, but there is nothing in the pages that Golove cites from the Journals of the Continental Congress showing any such disagreement. See id. at 1113 n.92 (citing 24 JOURNALS OF THE CONTINENTAL CONG. 66 (Jan. 23, 1783)).
214. See, e.g., SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 38-43 (1904); 1 GEORGE TICKNOR CURTIS, HISTORY OF THE CONSTITUTION OF THE UNITED STATES 280-85 (New York, Harper & Bros. 1860). Contrary to what Golove claims, these states' rights objections were not based on specific limitations in the Articles of Confederation. See Golove, supra note 2, at 1108-11. For example, objections were raised against an alien property provision in a proposed treaty with the Netherlands on the ground that, in James Madison's words, the provision might "encroach on the rights reserved by the federal articles to the individual States." James Madison, Report on Treaty with the Netherlands (July 12, 1782), in 4 THE PAPERS OF JAMES MADISON 411. Subsequently, John Adams decided not to attempt to include the real property component of this provision in the treaty because, as he explained to the Dutch ministers, "Congress had not authority to do this, it being a matter of the interior policy of the separate States." Letter from John Adams to Robert Livingston (Oct. 8, 1782), in 5 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 803, 804 (Francis Wharton ed., Washington, Government Printing Office 1889). Neither Madison nor Adams made any reference in these statements to specific limitations in the Articles, and it is hard to see how any of those limitations (which concerned state imposts and duties) would even be relevant. Golove further contends that Congress "disagreed with Adams's constitutional claim," Golove, supra note 2, at 1112-13, but there is nothing in the pages that Golove cites from the Journals of the Continental Congress showing any such disagreement. See id. at 1113 n.92 (citing 24 JOURNALS OF THE CONTINENTAL CONG. 66 (Jan. 23, 1783)).
215. See, e.g., SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 38-43 (1904); 1 GEORGE TICKNOR CURTIS, HISTORY OF THE CONSTITUTION OF THE UNITED STATES 280-85 (New York, Harper & Bros. 1860). Contrary to what Golove claims, these states' rights objections were not based on specific limitations in the Articles of Confederation. See Golove, supra note 2, at 1108-11. For example, objections were raised against an alien property provision in a proposed treaty with the Netherlands on the ground that, in James Madison's words, the provision might "encroach on the rights reserved by the federal articles to the individual States." James Madison, Report on Treaty with the Netherlands (July 12, 1782), in 4 THE PAPERS OF JAMES MADISON 411. Subsequently, John Adams decided not to attempt to include the real property component of this provision in the treaty because, as he explained to the Dutch ministers, "Congress had not authority to do this, it being a matter of the interior policy of the separate States." Letter from John Adams to Robert Livingston (Oct. 8, 1782), in 5 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 803, 804 (Francis Wharton ed., Washington, Government Printing Office 1889). Neither Madison nor Adams made any reference in these statements to specific limitations in the Articles, and it is hard to see how any of those limitations (which concerned state imposts and duties) would even be relevant. Golove further contends that Congress "disagreed with Adams's constitutional claim," Golove, supra note 2, at 1112-13, but there is nothing in the pages that Golove cites from the Journals of the Continental Congress showing any such disagreement. See id. at 1113 n.92 (citing 24 JOURNALS OF THE CONTINENTAL CONG. 66 (Jan. 23, 1783)).
216. See, e.g., SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 38-43 (1904); 1 GEORGE TICKNOR CURTIS, HISTORY OF THE CONSTITUTION OF THE UNITED STATES 280-85 (New York, Harper & Bros. 1860). Contrary to what Golove claims, these states' rights objections were not based on specific limitations in the Articles of Confederation. See Golove, supra note 2, at 1108-11. For example, objections were raised against an alien property provision in a proposed treaty with the Netherlands on the ground that, in James Madison's words, the provision might "encroach on the rights reserved by the federal articles to the individual States." James Madison, Report on Treaty with the Netherlands (July 12, 1782), in 4 THE PAPERS OF JAMES MADISON 411. Subsequently, John Adams decided not to attempt to include the real property component of this provision in the treaty because, as he explained to the Dutch ministers, "Congress had not authority to do this, it being a matter of the interior policy of the separate States." Letter from John Adams to Robert Livingston (Oct. 8, 1782), in 5 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 803, 804 (Francis Wharton ed., Washington, Government Printing Office 1889). Neither Madison nor Adams made any reference in these statements to specific limitations in the Articles, and it is hard to see how any of those limitations (which concerned state imposts and duties) would even be relevant. Golove further contends that Congress "disagreed with Adams's constitutional claim," Golove, supra note 2, at 1112-13, but there is nothing in the pages that Golove cites from the Journals of the Continental Congress showing any such disagreement. See id. at 1113 n.92 (citing 24 JOURNALS OF THE CONTINENTAL CONG. 66 (Jan. 23, 1783)).
217. See, e.g., SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 38-43 (1904); 1 GEORGE TICKNOR CURTIS, HISTORY OF THE CONSTITUTION OF THE UNITED STATES 280-85 (New York, Harper & Bros. 1860). Contrary to what Golove claims, these states' rights objections were not based on specific limitations in the Articles of Confederation. See Golove, supra note 2, at 1108-11. For example, objections were raised against an alien property provision in a proposed treaty with the Netherlands on the ground that, in James Madison's words, the provision might "encroach on the rights reserved by the federal articles to the individual States." James Madison, Report on Treaty with the Netherlands (July 12, 1782), in 4 THE PAPERS OF JAMES MADISON 411. Subsequently, John Adams decided not to attempt to include the real property component of this provision in the treaty because, as he explained to the Dutch ministers, "Congress had not authority to do this, it being a matter of the interior policy of the separate States." Letter from John Adams to Robert Livingston (Oct. 8, 1782), in 5 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 803, 804 (Francis Wharton ed., Washington, Government Printing Office 1889). Neither Madison nor Adams made any reference in these statements to specific limitations in the Articles, and it is hard to see how any of those limitations (which concerned state imposts and duties) would even be relevant. Golove further contends that Congress "disagreed with Adams's constitutional claim," Golove, supra note 2, at 1112-13, but there is nothing in the pages that Golove cites from the Journals of the Continental Congress showing any such disagreement. See id. at 1113 n.92 (citing 24 JOURNALS OF THE CONTINENTAL CONG. 66 (Jan. 23, 1783)).
218. See, e.g., Letter from John Adams, Benjamin Franklin, and John Jay to Richard Oswald, British Commissioner, Nov. 4, 1782, in 1 AMERICAN STATE PAPERS at 219 (Walter Lowrie & Matthew St. Clair Clarke eds., Washington, Gales & Seaton 1832) ("[A]s this is a matter evidently appertaining to the internal polity of the separate States, the Congress, by the nature of our constitution, have no authority to interfere with it."). Golove asserts that the American officials were disingenuous in making this claim. The only evidence he offers for this assertion is that the officials ultimately agreed to treaty provisions that appeared to conflict with their claim. See Golove, supra note 2, at 1117-20. There is a difference, however, between insincerity and compromise.
219. See Preliminary Articles of Peace, Nov. 30, 1782, U.S.-Gr. Brit., art. 5, cited in 2 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 96, 98 (Hunter Miller ed., 1931) ("It is agreed that the Congress shall earnestly recommend it to the Legislatures of the respective States, to provide for the Restitution of all Estates, Rights, and Properties which have been confiscated, belonging to real British Subjects ....").
220. THE FEDERALIST No. 22 (Alexander Hamilton), at 144 (Clinton Rossiter ed., 1961).
221. Golove, supra note 2, at 1135; see also id. at 1141 ("Crucially ... this concern [over an unlimited treaty power] did not lead to proposals to limit the scope of the power.").
222. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 409 (Jonathan Elliot ed., 1866) (amendment proposed July 7, 1788) [hereinafter ELLIOT'S DEBATES].
223. 10 DOCUMENTARY HISTORY, supra note 38, at 1554 (amendments proposed by the Virginia Convention, June 27, 1788), and 4 ELLIOT'S DEBATES, supra note 191, at 245 (amendments proposed by the North Carolina Convention, Aug. 1, 1788). The language of both states' seventh proposed amendments were identical in this regard. North Carolina also proposed that no treaties contrary to existing federal statutes should be valid unless and until the statutes were repealed. See id. at 246 (proposed amendment 23). Although Golove refers to the Virginia resolution, he inaccurately describes it as merely procedural in nature. See Golove, supra note 2, at 1141.
224. 10 DOCUMENTARY HISTORY, supra note 38, at 1554 (amendments proposed by the Virginia Convention, June 27, 1788), and 4 ELLIOT'S DEBATES, supra note 191, at 245 (amendments proposed by the North Carolina Convention, Aug. 1, 1788). The language of both states' seventh proposed amendments were identical in this regard. North Carolina also proposed that no treaties contrary to existing federal statutes should be valid unless and until the statutes were repealed. See id. at 246 (proposed amendment 23). Although Golove refers to the Virginia resolution, he inaccurately describes it as merely procedural in nature. See Golove, supra note 2, at 1141.
225. 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 598 (Merrill Jensen ed., 1976).
226. Golove, supra note 2, at 1134.
227. 10 DOCUMENTARY HISTORY, supra note 38, at 1389 (emphasis added). Golove contends that Nicholas was just invoking the standard Federalist argument about why there was no need for a Bill of Rights, Golove, supra note 2, at 1148, but this misses the point. The standard Federalist argument was that there was no need for a Bill of Rights because the powers delegated to the national government were sufficiently limited in scope that they would not give the national government the ability to take actions that would infringe on individual rights. Bradley, supra note 1, at 412 & n.124. By applying that argument to the treaty power, Nicholas was making clear that the Treaty Clause did not give the national government the ability to create preemptive federal law beyond the scope of its delegated legislative powers (and thus potentially infringe on individual rights). Nicholas had made a similar argument earlier in the debate about the Necessary and Proper Clause. 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1135 (John A. Kaminski & Gaspere J. Saladino eds., 1990).
228. 10 DOCUMENTARY HISTORY, supra note 38, at 1389 (emphasis added). Golove contends that Nicholas was just invoking the standard Federalist argument about why there was no need for a Bill of Rights, Golove, supra note 2, at 1148, but this misses the point. The standard Federalist argument was that there was no need for a Bill of Rights because the powers delegated to the national government were sufficiently limited in scope that they would not give the national government the ability to take actions that would infringe on individual rights. Bradley, supra note 1, at 412 & n.124. By applying that argument to the treaty power, Nicholas was making clear that the Treaty Clause did not give the national government the ability to create preemptive federal law beyond the scope of its delegated legislative powers (and thus potentially infringe on individual rights). Nicholas had made a similar argument earlier in the debate about the Necessary and Proper Clause. 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1135 (John A. Kaminski & Gaspere J. Saladino eds., 1990).
229. 10 DOCUMENTARY HISTORY, supra note 38, at 1385 (emphasis added). In quoting Randolph's statement in the text of his article, Golove places an ellipsis in place of the reference to the rights of states, and relegates that reference to a footnote. Golove, supra note 2, at 1147. In the footnote, Golove contends that Randolph was just referring to the issue of whether a treaty could cede state territory, id. at 1147 n.216, but neither Randolph's statement, nor the statement by Patrick Henry to which he was responding, was limited to that issue. See, e.g., 10 DOCUMENTARY HISTORY, supra note 38, at 1384-85 (statement by Patrick Henry) ("The Constitutions of these States may be most flagrantly violated without remedy.").
230. 10 DOCUMENTARY HISTORY, supra note 38, at 1385 (emphasis added). In quoting Randolph's statement in the text of his article, Golove places an ellipsis in place of the reference to the rights of states, and relegates that reference to a footnote. Golove, supra note 2, at 1147. In the footnote, Golove contends that Randolph was just referring to the issue of whether a treaty could cede state territory, id. at 1147 n.216, but neither Randolph's statement, nor the statement by Patrick Henry to which he was responding, was limited to that issue. See, e.g., 10 DOCUMENTARY HISTORY, supra note 38, at 1384-85 (statement by Patrick Henry) ("The Constitutions of these States may be most flagrantly violated without remedy.").
231. Id. at 1396.
232. Id. If Golove were correct in suggesting that the Anti-Federalist charges accurately reflected the scope of the treaty power, it would mean that the treaty power would not be subject to any constitutional limitations, since that was one of their charges. See Bradley, supra note 1, at 413. But Golove rightly rejects such a construction.
233. Golove, supra note 2, at 1147. Golove is referring to the statement by George Nicholas, quoted above.
234. See, e.g., Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 271 (1817); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236-37 (1796) (Chase, J.).
235. See, e.g., Orr v. Hodgson, 17 U.S. (4 Wheat.) 453 (1819); Fairfax Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1812).
236. 100 U.S. 483 (1879).
237. Golove, supra note 2, at 1244.
238. 100 U.S. at 490.
239. See, e.g., Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (stating that the treaty power could not effect "a change in the character of the [federal] government or in that of one of the States") (emphasis added); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872) (stating that the treaty power does not extend to subjects "inconsistent with the nature of our government and the relation between the States and the United States") (emphasis added); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840) (stating that the exercise of the treaty power must be "consistent with ... the distribution of powers between the general and state governments"); New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736 (1836) (noting that the federal government is "one of limited powers" and that its authority cannot be "enlarged under the treaty-making power").
240. See, e.g., Golove, supra note 2, at 1078 ("The 'states' rights view' predominated, if ever, only during the antebellum struggle, when the issue became entangled with the slavery question and the accompanying states' rights dogmas of the day."); id. at 1238 ("[T]he nationalist view, in the aftermath of the Civil War, would again gain quick recognition as the dominant construction of the treaty power.").
241. There were, as I explained in my original article, important academic dissenters during this period, most notably Henry St. George Tucker and William Mikell. See HENRY ST. GEORGE TUCKER, LIMITATIONS ON THE TREATY-MAKING POWER UNDER THE CONSTITUTION OF THE UNITED STATES (1915); William E. Mikell, The Extent of the Treaty Making Power of the President and Senate of the United States (II), 57 U. PA. L. REV. 528 (1909). In addition, many academic commentators who rejected states' rights limitations appeared to believe in subject matter limitations. See Bradley, supra note 1, at 421-22.
242. There were, as I explained in my original article, important academic dissenters during this period, most notably Henry St. George Tucker and William Mikell. See HENRY ST. GEORGE TUCKER, LIMITATIONS ON THE TREATY-MAKING POWER UNDER THE CONSTITUTION OF THE UNITED STATES (1915); William E. Mikell, The Extent of the Treaty Making Power of the President and Senate of the United States (II), 57 U. PA. L. REV. 528 (1909). In addition, many academic commentators who rejected states' rights limitations appeared to believe in subject matter limitations. See Bradley, supra note 1, at 421-22.
243. See Kurt H. Nadelmann, Ignored State Interests: The Federal Government and International Efforts to Unify Rules of Private Law, 102 U. PA. L. REV. 323 (1954); see also HAROLD W. STOKE, THE FOREIGN RELATIONS OF THE FEDERAL STATE 187-88 (1931).
244. See Kurt H. Nadelmann, Ignored State Interests: The Federal Government and International Efforts to Unify Rules of Private Law, 102 U. PA. L. REV. 323 (1954); see also HAROLD W. STOKE, THE FOREIGN RELATIONS OF THE FEDERAL STATE 187-88 (1931).
245. See James T. Shotwell, Historical Significance of the International Labour Conference, in LABOUR AS AN INTERNATIONAL PROBLEM 41 (E. John Solano ed., 1920); see also STOKE, supra note 208, at 189.
246. See Pitman B. Potter, Inhibitions Upon the Treaty-Making Power of the United States, 28 AM. J. INT'L L. 456 (1934). The fact that U.S. treatymakers perceived federalism limits on their ability to enter into labor treaties after Holland also tends to undermine one of Golove's most surprising claims: that the Court in Holland was self-consciously inviting the federal government to use the treaty power to circumvent the Court's earlier decision in Hammer v. Dagenhart, 247 U.S. 251 (1918), in which the Court had held that a child labor statute unconstitutionally invaded the reserved powers of the states. Golove, supra note 2, at 1080, 1269, 1304. Further undermining Golove's claim is the fact that the Court reaffirmed Hammer two years after Holland and specifically held that Congress could not use its taxing power to circumvent the Hammer decision. Bailey v. Drexel Furniture Co. (The Child Labor Tax Case), 259 U.S. 20, 39 (1922).