tence.

With the making of international agreements on the other hand foreign nations are entitled to assume no such Presidential omnipoThe United States cannot be bound by new engagements until the organs designated by the Constitution have acted. In the meeting of international responsibilities, international law is prior, in the making of international engagements the Constitution is prior.

PART III.

CONSTITUTIONAL LIMITATIONS UPON THE FOREIGN RELATIONS POWER.

CHAPTER V.

LIMITATIONS UPON STATE POWERS.

40. Position of the Foreign Relations Power under Constitutional Law.

From the standpoint of international law the essential element in the foreign relations power of any state is the authority recognized by foreign states as representing the state and competent to meet its international responsibilities. We have seen that in the United States this authority is the President acting through the Department of State. Foreign states with claims or complaints need know nothing of constitutional powers or limitations. They are entitled to present their cases to the President through the State Department and to demand of him satisfaction according to the measure of international law and treaty. If he is unable to obtain it the United States is liable to such measures of redress as international law may permit the claimant state.

In sharp contrast, is the position of the foreign relations power under constitutional law. The question is not of responsibility but of power. Under constitutional law the foreign relations power consists of those organs of government competent to perform the various acts connected with the conduct of foreign relations.

These acts may be classified as (1) the meeting of international responsibilities, (2) the making of international agreements (3) the making of national decisions of international importance. The first includes the observance and enforcement of international law and treaty. The second includes the settlement of international controversies and the making of treaties. The third includes the recognition of facts and the declaration of policies of international significance. Before considering the constitutional authority for performing these acts, however, it will be well to recall certain fundamental principles of the Constitution.

41. Relation Between State and National Powers.

1

Under American constitutional law the legal competence of any organ is determined by two factors, the authorization of power and restrictions upon the exercise of power. With one hand the people are supposed to have granted certain powers expressed in written constitutions, to be exercised by governmental organs, for the general welfare, but with the other hand they are supposed to have taken away in part the powers thus granted through restrictions upon their exercise expressed in bills of rights, guarantees and prohibitions for the protection of private individuals, subordinate governmental areas and particular organs of the government. The authority for all powers exercised by organs of

1" The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legislative authority." Cooley, Constitutional Limitations, 6th ed., p. 39, citing McLean, J., in Spooner v. McConnell, I McLean 347, Waite, C. J., in Minor v. Happersett, 21 Wall. 162, 172, etc. For influence of the theories of popular sovereignty and the social contract on the constitutional fathers, see Merriam, Am. Political Theories, N. Y., 1903, p. 38; Willoughby, Am. Constitutional System, N. Y., 1904, p. 23 et seq.

2 The theory of constitutional limitations derived from the dogma of separation of powers and from the supposed division of sovereignty between the state and nation was prominent in the federal convention, but the Federalist (No. 84) thought a bill of rights unimportant. The Jeffersonian Republicans took a different view and succeeded in having the first ten amendments attached to the Constitution, thereby following the usual custom in state constitutions. See Cooley, op. cit., chap. ix, p. 311 et seq. For influence of theories of separation of powers, divided sovereignty, and natural rights upon the constitutional fathers, see Merriam, op. cit., pp. 107, 146, and Willoughby, loc. cit.

the national government comes from the federal Constitution either by express or implied delegation. The authority for all powers exercised by state governments comes from their own Constitutions and may include all governmental powers the exercise of which does not conflict with the full exercise of its delegated powers by the national government, and is not expressly prohibited by the federal Constitution. This theory of the division of governmental authority between national and state governments is set forth in the tenth amendment and the sixth article of the federal Constitution.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The system may be characterized by the three phrases: national delegated powers, state residual powers, and national supremacy.3

42. Constitutional Prohibitions of State Power.

Restrictions upon the exercise of state power may exist by virtue of (1) express or implied constitutional prohibitions or (2) as a result of action taken by national governmental organs. Constitutional restrictions may be expressed in the state's own Constitution or in the federal Constitution. In the latter are several express restrictions upon the exercise of state power. Some are for the protection of private rights such as the prohibition of laws impairing the obligation of contracts, ex post facto laws and laws depriving persons of life, liberty and property without due process of law. Others are intended to insure the centralization of power in matters of national interest, especially in the control of foreign relations. Such are the prohibitions against treaty making, war making, import, export and tonnage duties. In addition are 3 See Willoughby, Const. Law, pp. 53, 78.

4 Constitution, Art. I, sec. 10, cl. 1, Amendment XIV.

5 Ibid., Art. I, sec. 10.

several prohibitions implied from the nature of the federal union such as the prohibitions against secession and the taxation of agencies of the national government. Other prohibitions have been implied from the necessarily exclusive character of certain powers delegated to the national government such as the power to regulate foreign commerce, except purely local regulations, and to provide for the naturalization of aliens.s

43. Action of National Organs Limiting State Powers.

State powers may also be restricted in their exercise by the principle of national supremacy. As national organs exercise more and more of their concurrent powers, state powers are correspondingly reduced. For example when Congress passes bankruptcy statutes or statutes fixing standards of weights and measures, the state's power in these fields is lost and state statutes on the subject automatically cease to operate though if the national statute is repealed they automatically come into force again."

The state police power has been greatly restricted by the more complete exercise by the national government of its powers to regulate interstate commerce, to establish postoffices and post roads and to tax.10 No less remarkable, however, has been the reduction of state powers through the exercise of national powers relating to foreign relations. Thus wars have justified legislation by Congress such as recently illustrated by the draft acts, acts authorizing railroad, telegraph, food and fuel control, and acts punishing espionage and disloyal conduct. These have all entered fields. ordinarily within state control. Similar reductions of state power but in less degree have resulted from a state of neutrality and the consequent operation of laws punishing offenses against neutrality, authorizing national censorship of telegraph and radio communication and a closer supervision of commercial transactions. Even Texas v. White, 7 Wall. 700 (1868).

7 McCulloch v. Md., 4 Wheat. 316, 432; Dobbins v. Erie County, 16 Pet. 435.

8 Willoughby, op. cit., pp. 73-74; J. P. Hall, Constitutional Law, pp. 254, 288; Cooley v. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259. Willoughby, op. cit., pp. 74, 779.

10 See Cushman, The Police Power of the National Government, 1920, reprinted from the Minn. Law Rev., vols. 3, 4.

in time of peace the exercise of foreign relations powers has shown a tendency to narrow state power. Thus Congress has extended the jurisdiction of federal courts over many cases involving treaty interpretation, over numerous controversies where aliens or persons especially protected by international law are parties, and over many offenses against international law and treaty. Congress has also given national officers authority to enforce such treaties as those protecting migratory birds, and fish in boundary waters, and those requiring extradition of criminals and prohibition of the white slave traffic. Many self-executing treaties have limited state power without congressional action such as those according property and personal rights to aliens.11

Although this limitation of state powers by action of national organs has been a patent phenomenon, its constitutionality has been questioned, especially so far as effected through exercise by the national government of its power over foreign relations. Thus it has been alleged that all state powers are not merely residual but that some, for instance the police power, are "reserved" powers incapable of limitation by any exercise of its delegated powers by the national government. It will readily be seen that this notion is wholly incompatible with the principle of national supremacy and while it has great historic importance, it never commanded wholehearted support from the courts and at present enjoys no legal recognition.12 The concept of "reserved" powers is, however, of importance as an "understanding" of the Constitution. In practice both Congress and the treaty-making power have sometimes refrained from fully exercising their powers out of respect for state susceptibilities, and the courts have sometimes given rather strained interpretations to treaties for the same reason.1

13

We may conclude that state exercises of power in the field of foreign relations have been so restricted that such powers hardly exist at all.

11 See Corwin, National Supremacy, N. Y., 1913; Sutherland, Constitutional Power and World Affairs, N. Y., 1919.

12 Infra., secs. 48-51.

13 Infra, sec. 50.