When did the constitution become law?

Notre Dame Law Review

Volumn 77, Issue 1, 2001, Pages 1-36

  Lawson, Gary ^a   Seidman, Guy ^b  

^a BOSTON UNIVERSITY   (United States)

^b INTERDISCIPLINARY CENTER   (Israel)

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[No Author keywords available]

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EID: 26644454854     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (147)

1. U.S. CONST. art. VII.
2. Virginia ratified the Constitution on June 25, 1788 without definitively knowing about the events in New Hampshire. See 2 GEORGE TICKNOR CURTIS, HISTORY OF THE ORIGIN, FORMATION, AND ADOPTION OF THE CONSTITUTION OF THE UNITED STATES 578 (New York, Harpet & Bros. 1865).
3. 18 U.S. (5 Wheat.) 420 (1820).
4. See 16 AM. JUR. 2D Constitutional Law § 43 (1998) ("The Constitution of the United States did not take effect at once on its being ratified by the necessary number of conventions in nine states."); 16 C.J.S. Constitutional Law § 35 (1984) ("The Constitution of the United States did not become operative until . . . a day for commencing proceedings under the Constitution had been appointed by Congress."). The sparse law review commentary that mentions the effective date of the Constitution also follows Owings without comment. See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475, 556 (1995);
5. Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001, 1003 n.5 (1991);
6. Hans W. Baade, Time and Meaning: Notes on the Inlertemporal Law of Statutory Construction and Constitutional Interpretation, 43 AM. J. COMP. L. 319, 337 n.144 (1995).
7. 34 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 281 (Roscoe R. Hill ed., 1937).
8. Oneida Indian Nation v. New York, 520 F. Supp. 1278, 1284-85 (N.D.N.Y. 1981).
9. Id. at 1288.
10. See infra note 9.
11. In all, there were four decisions on the merits. See Oneida Indian Nation, 520 F. Supp. at 1278, aff'd in part & rev'd in part, 691 F.2d 1070 (2d Cir. 1982), on remand, 649 F. Supp. 420 (N.D.N.Y. 1986), aff'd, 860 F.2d 1145 (2d. Cir. 1988) (Originally the district court dismissed the case for failure to state a claim upon which relief could be granted. The circuit court then remanded the claim based on interpretation of the treaties and Articles of Confederation for an evidentiary hearing, but affirmed dismissal of all other claims. On remand the district court dismissed the claim holding that Congress did not have the authority under the Articles of Confederation nor intent to prohibit the state purchase of land. The circuit affirmed.). Additionally, there was a passel of decisions on procedural issues. See Oneida Indian Nation v. New York, 102 F.R.D. 450 (N.D.N.Y. 1984) (disqualifying counsel), remanded, 757 F.2d 19 (2d Cir. 1985); Oneida Indian Nation v. New York, 102 F.R.D. 445 (N.D.N.Y. 1983) (denying motion to intervene), rev'd, 732 F.2d 261 (2d Cir. 1984).
12. See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 41-44 (1991);
13. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 49-68 (1998); Ackerman & Katyal, supra note 4, at 539-58;
14. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 462-87 (1994);
15. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1047-60 (1988).
16. See Ackerman & Katyal, supra note 4, at 539-58.
17. See id. at 557.
18. We leave it to the combatants in those debates to determine whether and how it does so.
19. It would appear that much of what we "know" about the Norman Conquest is in fact error. See FRANK MCLYNN, 1066: THE YEAR OF THE THREE BATTLES passim (1999). But the date of October 14, 1066 for the Battle of Hastings has thus far survived the test of time.
20. Or for mourning, if one thinks that the Anti-Federalists had the better of the argument.
21. 1 THE DOCUMENTARY HISTORY OF THE FIRST FEDERAL ELECTIONS 1788-1790, at 24 (Merrill Jensen & Robert A. Becker eds., 1976) [hereinafter FIRST FEDERAL ELECTIONS].
22. We have been unable to locate the precise moment at which the Confederation Congress authenticated New Hampshire's ratification. On July 2, 1788, the Confederation Congress referred the nine existing ratifications to a committee "to examine the same." Id. at 29. On July 9, the Congressional Committee on Putting the Constitution into Operation reported that nine states "have duly ratified the aforesaid Constitution." Id. at 33.
23. U.S. CONST. art. VII.
24. See FIRST FEDERAL ELECTIONS, supra note 16, at 6. Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled. Id. (quoting RESOLUTIONS OF THE CONVENTION SUBMITTING THE CONSTITUTION TO THE CONFEDERATION CONGRESS (17 Sept. 1787)).
25. RESOLUTIONS OF THE CONVENTION SUBMITTING THE CONSTITUTION TO THE CONFEDERATION CONGRESS (1787). Id.
26. Id. at 131.
27. U.S. CONST. art. VII.
28. 18 U.S. (5 Wheat.) 420 (1820).
29. Id. at 421.
30. Id.; see also Act of Dec. 2, 1788, 1788 Va. Acts ch. LX. The statute made reference to the tract vested in "John C. Owing." All of the records in the Supreme Court, however, used the name "Owings." We assume in this Article (for no reason that we can defend) that the lawyers in the case spelled Owings's name correctly.
31. U.S. CONST. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts.").
32. See id. Owings could not, of course, raise any claims under the Federal Constitution for the taking of property without just compensation, because there was no provision in the original constitutional text barring state takings of property.
33. See id. at 422-23.
34. Marshall's recounting left much to be desired. Marshall incorrectly fixed the date of assembly of the First Congress as March 3, 1789; it was actually March 4. And he dated the September 13, 1788 implementing resolution of the Confederation Congress as "in September or October, 1788." Owings, 18 U.S. (5 Wheat.) at 422.
35. Id.
36. U.S. CONST. art. I, § 7, cl. 2.
37. See Owings, 18 U.S. (5 Wheat.) at 422-23.
38. See id.
39. See John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955 passim (1999)
40. [hereinafter Yoo, Globalism];
41. John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218 passim (1999)
42. [hereinafter Yoo, Treaties and Public Lawmaking].
43. Cf. Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 YALE L.J. 677, 683 (1993) (arguing that Congress and the States may revoke proposals or ratifications of constitutional amendments until, but not after, the necessary three-quarters of the States have ratified).
44. HERBERT APTHEKER, EARLY YEARS OF THE REPUBLIC: FROM THE END OF THE REVOLUTION TO THE FIRST ADMINISTRATION OF WASHINGTON (1783-1793), at 106 (1976).
45. HERBERT APTHEKER, EARLY YEARS OF THE REPUBLIC: FROM THE END OF THE REVOLUTION TO THE FIRST ADMINISTRATION OF WASHINGTON (1783-1793), 106 (1976). Id.
46. The Constitution empowers the House to "chuse [sic] their Speaker and other Officers." U.S. CONST. art. I, § 2, cl. 5. The Vice President is declared to be the President of the Senate. See id. art. I, § 3, cl. 4. But the Senate is empowered to "chuse [sic] their other Officers." Id. art. I, § 3, cl. 5.
47. See id. art. I, § 5, cls. 2-3 (empowering each House to determine its rules of proceeding and to keep a journal).
48. See id. art. I, § 5, cls. 1-2 (empowering each House to discipline, expel, and determine the qualifications of its members).
49. See id. art. VI, cl. 2.
50. For the House, "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," Id. art. I, § 2, cl. 1, and the Senators from each state were (until the Seventeenth Amendment) "chosen by the Legislature thereof." Id. art. I, § 3, cl. 1.
51. See id. art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.").
52. Id. art. II, § 4. The full sentence reads: "The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes, which Day shall be the same throughout the United States." Id.
53. See id. art. I, § 8, cl. 17 (giving Congress power "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States").
54. The full text of the relevant Convention resolution read: Resolved, That it is the opinion of this Convention, that as soon as the Conventions of nine States, shall have ratified this Constitution, the United States in Congress assembled should fix a day on which Electors should be appointed by the States which shall have ratified the same, and a day on which the Electors should assemble to vote for the President, and the Time and Place for commencing proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution. FIRST FEDERAL ELECTIONS, supra note 16, at 6-7.
55. See generally id. at 23-143 (providing letters, journals, and newspaper articles surrounding issues relating to the adoption of the Constitution).
56. See generally id. (detailing the debates concerning the Confederation Congress's election ordinance of Sept. 13, 1788).
57. Id.
58. Id. at 152 (emphasis added).
59. Governments execute many other kinds of instruments, such as licenses, charters, land patents, and contracts, but they pertain more to private than to public law. In any event, all of these instruments are also effective from the moment of issuance (though one can argue about precisely what events are necessary for "issuance" - as in the case, to pick a random example, of a commission of appointment to a government post). Indeed, we have been unable to think of an instrument that is not presumptively effective from the moment of execution.
60. This does not mean that all treaties are necessarily self-executing. See sources cited supra note 34. But to the extent that treaties have independent legal force, that force radiates from the moment of ratification.
61. United States v. Reynes, 50 U.S. (9 How.) 127, 148 (1850).
62. The ensuing discussion is drawn from a number of sources, including T. BATY & J. H. MORGAN, WAR: ITS CONDUCT AND LEGAL RESULTS 398 (1915),
63. WILLIAM EDWARD HALL, INTERNATIONAL LAW 482-95 (J.B. Atlay ed., Oxford 5th ed. 1904),
64. and COLEMAN PHILLIPSON, TERMINATION OF WAR AND TREATIES OF PEACE 185-98, 214-17 (1916).
65. Gary Lawson & Guy Seidman, The Hobbesian Constitution: Governing Without Authority, 95 NW. U. L. REV. 581, 605 (2001).
66. We have elsewhere discussed at some length how treaties that transfer control or sovereignty of territory from one nation to another generally take effect immediately upon completion of the necessary ratifications. See id. at 604-07.
67. Treaty of Amity, Commerce, and Navigation, Nov. 19, 1794, U.S.-Gr. Brit., art. II, 8 Stat. 116.
68. For a similar analysis of the Treaty of Guadalupe Hidalgo that terminated the Mexican-American War, see Lawson and Seidman, supra note 55, at 605-06.
69. Treaty of Amity, Commerce, and Navigation, supra note 57, art. II, 8 Stat. at 117.
70. See DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 2 (1988) (noting that state constitutions are "[r]eferred to directly or by implication more than fifty times in forty-two sections of the U.S. Constitution").
71. Id. at 12.
72. GA. CONST. of 1789, art. IV, § 8.
73. N.C. CONST. of 1776, coda.
74. We have to say "presumably," because we have not been able to find a case, in any of the original states, that squarely presents the point.
75. MASS. CONST. of 1780, pt. 2, ch. VI, art. IX.
76. N.H. CONST. of 1784, pt. II, para. 17.
77. PA. CONST. of 1790, sched. §§ 2-4.
78. DEL. CONST. of 1776, art. 27.
79. S.C. CONST. of 1778, art. II.
80. VA. CONST. of 1776, paras. 11, 14.
81. As noted above, see supra note 50, we must base this conclusion on inference rather than authority.
82. N.J. CONST. of 1776, art. XXI; see also MASS. CONST. of 1780, part II, ch. VI, art. VI ("All the laws which have heretofore been adopted, used and approved in the province, colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall remain and be in full force."); N.Y. CONST. of 1777, art. XXXV (stating that English common and statutory law, as well as acts of the New York colonial legislature through April 19, 1775 "shall be and continue the law of this State"); S.C. CONST. of 1776, art. XXIX ("The resolutions of this or any former congress of this colony, and all laws now of force here, (and not hereby altered,) shall so continue until altered or repealed.").
83. See, e.g., N.J. CONST. of 1844, art. X; S.C. CONST. of 1778, art. II.
84. N.H. CONST. of 1776, pt. 3.
85. GA. CONST. of 1777, arts. II, LIII.
86. See PA. CONST. of 1776, Plan or Frame of Government for the Commonwealth of Pennsylvania § 9 ("The members of the house of representatives shall be chosen annually by ballot, by the freemen of the commonwealth, on the second Tuesday in October forever, (except this present year)."). The 1777 Vermont Constitution followed the Pennsylvania model in this respect, as it did in many others. See VER. CONST. of 1777, Plan or Frame of Government § VIII.
87. On the different stages, or "waves," of state constitutional development, see LUTZ, supra note 60, at 103-04.
88. This understanding did not disappear. Twentieth-century drafters were, if anything, even more acutely aware of the need for constitutions to provide specifically for transitional mechanisms because of the presumptive rule of immediate effectiveness. See COMM. ON STATE GOV'T, MODEL STATE CONSTITUTION 21-22, 51-52 (5th ed. 1948) (recommending, and explaining the need for, a transitional schedule in new constitutions).
89. See Arnold v. United States, 13 U.S. (9 Cranch) 104, 119 (1815); LaFontant v. INS, 135 F.3d 158, 160-61 (D.C. Cir. 1998).
90. Act of July 4, 1789, ch. II, § 1, 1 Stat. 24, 24 (making most duties effective "from and after the first day of August next ensuing"); id. ch. II, § 2, 1 Stat. at 26 (duties on hemp imposed "from and after the first day of December, which shall be in the year one thousand seven hundred and ninety").
91. See Act of Apr. 30, 1790, ch. IX, § 14, 1 Stat. 112, 115.
92. Lest there be any doubt, the statute prescribed that "the manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead." Id. ch. IX, § 33, 1 Stat. at 119.
93. See U.S. CONST. art. I, § 9, cl. 3; id. art. I, § 10, cl. 1.
94. It has long been held that the ex post facto clauses apply only to criminal laws. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-91 (1798) (Chase, J.); id. at 396-97 (Paterson, J., concurring); id. at 399-400 (Iredell, J., concurring). We accept that conclusion here without seriously engaging it.
95. See id. at 396-97 (Paterson, J., concurring).
96. We say "notions of due process" to accommodate the fact that due process constraints applied to federal legislative action before ratification of the Fifth Amendment in 1791. The requirement in the sweeping clause, see U.S. CONST. art. I, § 8, cl. 18, that executory laws be "necessary and proper" contains the substance of most of what was codified in the Bill of Rights in 1791. See Gary Lawson, The Bill of Rights as an Exclamation Point, 33 U. RICH. L. REV. 511, 513-14 (1999).
97. See 44 HALSBURY'S LAWS OF ENGLAND 567 (R. Peter Moore ed., 4th ed. 1983);
98. HENRI LEVY-ULLMANN, THE ENGLISH LEGAL TRADITION: ITS SOURCES AND HISTORY 243-44 (1935).
99. Needless to say, we are talking about the original meaning of due process limitations. A litigant today in the position of our hypothetical 1790 counterfeiter might well have a very strong claim under modern assumptions about due process.
100. Finally, one should note that judicial orders - another form of governmental instrument - are enforceable when they are issued, unless the court or legislature in some fashion stays the mandate.
101. See U.S. CONST. art. VII ("Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution.").
102. Of course, to explain, much less defend, this understanding of original meaning would require a book. One of us is planning such a book, though it will not be forthcoming any time soon. For some very preliminary thoughts on the meaning and mechanics of originalism, see generally Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 550-59 (1994);
103. Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning, 86 GEO. L.J. 569 (1998);
104. Gary Lawson, On Reading Recipes . . . and Constitutions, 85 GEO. L.J. 1823 (1997).
105. Rhode Island was also in the cast, but only as a bit player.
106. Letter from Comte de Moustier to Comte do Montmorin (June 25, 1788), reprinted in 18 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 189, 192 (John P. Kaminski & Gaspare J. Saladino eds., 1995) (original spelling retained) [hereinafter Kaminski & Saladino].
107. Ezra Stiles Diary, June 25, 1788, in Kaminski & Saladino, supra note 93, at 194 (original spelling retained).
108. This is reflected in the ambivalence of historians concerning the significance of New Hampshire's ratification. See HERBERT APTHEKER, EARLY YEARS OF THE REPUBLIC 102 (1976) ("New Hampshire ratified on June 21, 1788 and since she was the ninth State to do so, her action in a formal sense satisfied the requirements for ratification as established by the Philadelphia convention . . . .") (emphasis added);
109. ANDREW C. MCLAUGHLIN, A CONSTITUTIONAL HISTORY OF THE UNITED STATES 202 (1935) ("The New Hampshire convention . . . adopted the Constitution, June 21, 1788. But the all-important states of New York and Virginia were still in doubt."); RICHARD B. MORRIS, THE FORGING OF THE UNION 1781-1789, at 312 (1987) ("Although New Hampshire, the ninth state, ratified the Constitution four days ahead of Virginia, thus putting the charter into effect, a key battle remained to be waged to attach New York to the Union. Without New York the nation would remain split asunder.") (emphasis added).
110. Letter from Phillipe Andre Joseph de Letombe to Comte de la Luzerne (June 26, 1788), in Kaminski & Saladino, supra note 93, at 194, 194-95.
111. See Letter from George Washington to Charles Coteworth Pinckney (June 28, 1788), in Kaminski & Saladino, supra note 93, at 207, 207.
112. If one must have an obligatory contemporaneous document, the most relevant discussion that we have found is in two letters from Tenche Coxe and Nalbo Frazier to some merchants in Barbados. On July 10, 1788, Coxe and Frazier wrote that "the affairs of this Country are now placed upon a safe & promising footing by the Adoption of the New Constitution[.] [I]t is binding on the ten States that have adopted Letter from Tenche Coxe & Nalbo Frazier to James O'Neal (July 10, 1788), in Kaminski & Saladino, supra note 93, at 255 (emphasis added). On July 11, they wrote: [T]he various foreign Gentlemen connected in the American Trade will have great safety hereafter in their Connexions with this County from the final Adoption & ratification of the new form of Government. No papers tenders & no law impairing or staying the execution of Contracts can hereafter take place, and our State courts will not have to determine between foreigners & us; but an impartial federal Court . . . . Letter from Tenche Coxe & Nalbo Frazier to Stephen Blackett (July 11, 1788), in Kaminski & Saladino, supra note 93, at 255-56 (emphasis added). Taken out of context, the emphasized portions could be taken to suggest that the authors understood the Constitution's prohibitions on states to be immediately effective. But the subsequent reference to federal courts, which clearly could not operate until the machinery of the new government was in place, indicates that authors were not focusing on the possible differential effects of various constitutional provisions. Thus, aside from any questions about how much weight to attach to private commercial correspondence - even from so notable a figure as Tenche Coxe - there is no indication that anyone was thinking directly about the effective date of the Article I, Section 10 prohibitions on states.
113. Owings v. Speed, 18 U.S. (5 Wheat.) 420, 422 (1820).
114. Id.
115. Indeed, many of the Constitution's prohibitions on state action were foreshadowed by similar prohibitions in the Articles of Confederation.
116. 17 U.S. (4 Wheat.) 246 (1819).
117. See id. at 253-55.
118. See, e.g., Gregory E. Maggs, Karl Llewellyn's Fading Imprint on the Jurisprudence of the Uniform Commercial Code, 71 U. COLO. L. REV. 541, 579 (2000) ("As a central tenet of his jurisprudence, Llewellyn believed that people only had legal rights to the extent that the law provided them remedies.").
119. U.S. CONST. art. VI, cl. 2.
120. That is not to say that the founding generation unanimously expected state courts to entertain all possible cases arising under the Constitution. See Michael G. Collins, Article 111 Cases, State Court Duties, and the Madisonian Compromise, 1995 WIS. L. REV. 39, 52-78. But to the extent that there were thought to be "enclaves" of exclusive federal jurisdiction, claims under the Contracts Clause were unlikely candidates. See id. at 78-105 (discussing the types of cases for which the arguments for exclusive federal jurisdiction were most prominent).
121. See U.S. CONST. art. I, § 8, cl. 10 (giving Congress power "[t]o define and punish . . . Offences [sic] against the Law of Nations").
122. See Stewart Jay, The Status of the Law of Nations in Early American Law, 42 VAND. L. REV. 819, 820 (1989).
123. Act of Mar. 3, 1819, ch. 77, § 5, 3 Stat. 510, 513-14. The statute was upheld (over a vigorous dissent) as a constitutional exercise of the power to "define" the offense of piracy. See United States v. Smith, 18 U.S. (5 Wheat.) 153, 162 (1820).
124. Oneida Indian Nation v. New York, 520 F. Supp. 1278, 1286 (N.D.N.Y. 1981).
125. Id. at 1287.
126. Some of the relevant court opinions provide a fuller statement of the facts. See Oneida Indian Nation v. New York, 860 F.2d 1145, 1148-49 (2d Cir. 1988); Oneida Indian Nation, 520 F. Supp. at 1286-88.
127. State statutes of limitations for the recovery of real property do not apply to claims by Indian tribes. See Oneida Indian Nation v. New York, 691 F.2d 1070, 1083-84 (2d Cir. 1982).
128. The case also presented a host of issues concerning jurisdiction, justiciability, and remedies that are not relevant here. For a discussion of some of the remedial issues, see generally Joshua N. Lief, Note, The Oneida Land Claims: Equity and Ejectment, 39 SYRACUSE L. REV. 825 (1988).
129. It took four decisions to finalize that conclusion: the original district court decision rejecting the claims, see Oneida Indian Nation, 520 F. Supp. 1278; a court of appeals decision remanding for further consideration, see Oneida Indian Nation, 691 F.2d 1070; a second district court decision reaffirming the original disposition, see Oneida Indian Nation v. New York, 649 F. Supp. 420 (N.D.N.Y. 1986); and the final affirmance by the Second Circuit, see Oneida Indian Nation, 860 F.2d 1145.
130. See Oneida Indian Nation, 860 F.2d at 1149.
131. U.S. CONST. art. I, § 10, cl. 1.
132. See id. art. II, § 2, cl. 2. Congress has power to "regulate Commerce . . . with the Indian Tribes." Id. art. I, § 8, cl. 3. Whether that power is also exclusive is another story.
133. See ARTS. OF CONFEDERATION, art. VI(1) ("No State without the consent of the United States in Congress assembled, shall . . . enter into any conference, agreement, alliance or treaty with any king, prince or foreign state.").
134. The language of Article I, Section 10 is more categorical than the language in Article VI of the Articles of Confederation: it is a flat prohibition on state treaties, rather than a requirement of congressional consent, and it contains no specific mention of treaties with "any king, prince or foreign state," which language could conceivably exclude treaties with Indian nations or tribes. Moreover, the Indian Commerce Clause of Article I, see U.S. CONST. art. I, § 8, cl. 3 (giving Congress power "[t]o regulate Commerce . . . with the Indian Tribes"), is not subject to the substantial reservation of state authority contained in the analogous grant in the Articles of Confederation. See ARTS. OF CONFEDERATION, art. IX(4) (giving the Confederation Congress "sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any States, provided that the legislative right of any State within its own limits be not infringed or violation").
135. See Oneida Indian Nation, 860 F.2d at 1159-60.
136. For an argument that agreements with Indians might not be treaties in the full constitutional sense, see Karen D. Kendrick-Hands, Note, State Sovereignty and Indian Land Claims: The Validity of New York's Treaties Prior to the Nonintercourse Act of 1790, 31 SYRACUSE. L. REV. 797, 816-19, 835-39 (1980). The claim is substantial: it has considerable support in founding-era materials and may be the only view that makes sense of the doctrine of discovery, as it applies to title descended from European conquests in North America. Nonetheless, it is probably wrong. Congress did not require Indian land sales to take place through treaties "entered into pursuant to the constitution" until the Indian Trade and Intercourse Act of 1793. See Indian Trade and Intercourse Act of 1793, ch. 19, § 8, 1 Stat. 329, 330. The original 1790 version of the Intercourse Act required merely that such sales "be made and duly executed at some public treaty, held under the authority of the United States." Indian Trade and Intercourse Act of 1790, ch. 33, § 4, 1 Stat. 137, 138 (emphasis added). The word "at" indicates that the term "treaty" in the 1790 act merely meant a public meeting of some kind-a usage that was not uncommon in the eighteenth century. See Kendrick-Hands, supra at 816-17 & n.153. If, however, Indian treaties were not treaties in the constitutional sense, then Congress had no authority in 1793 to require their use - as it has done for the past 200 years. See 25 U.S.C. § 177 (1994) ("No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."). Congress cannot make something a constitutional "treaty" if it doesn't already fit the description.
137. Oneida Indian Nation v. New York, 520 F. Supp. 1278, 1323 (N.D.N.Y. 1981).
138. The district court, echoing the thoughts of Ms. Kendrick-Hands, see Kendrick-Hands, supra note 122, at 836-37, suggested that federal legislation was necessary in order to deprive the states of their right to acquire title to Indian lands. See Oneida Indian Nation, 520 F. Supp. at 1323 n.45. This makes sense, however, only if agreements with Indians are not "treaties" in the constitutional sense. The prohibition on state treaties is part of a single clause that contains most of the original Constitution's denials of state power. See U.S. CONST. art. I, § 10, cl. 1. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. Id. The Treaty or Alliance Clause no more requires federal legislative implementation than does the Bill of Attainder Clause, the Contracts Clause, or the Titles of Nobility Clause. If the state can acquire Indian title through some means other than a treaty, that is a different matter. But there is little to be said for the view that the Treaty or Alliance Clause is not self-executing.
139. For a spirited debate over the extent to which treaties are self-executing under the Constitution, see Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land", 99 COLUM. L. REV. 2095, 2099 (1999);
140. Carlos Manuel Vazquez, Laughing at Treaties, 99 COLUM. L. REV. 2154, 2155 (1999);
141. Yoo, Globalism, supra note 34, at 1960-61;
142. Yoo, Treaties and Public Lawmaking, supra note 34, at 2218-19.
143. Is that not strong evidence of a public understanding that the Constitution was not, in any sense, effective until (at least) March 4, 1789? It is perhaps evidence, but not strong evidence. Everyone treated the selection provisions for the staffing of the new government as being effective from the moment of ratification. There is no good distinction between those provisions and the Article I, Section 10 prohibitions. If Virginia legislators thought otherwise, that was (or should have been) their misfortune.
144. U.S. CONST. art. I, § 10, cl. 2.
145. 17 U.S. (4 Wheat.) 316 (1819).
146. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
147. See generally Lawson & Seidman, supra note 55.