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Jefferson wrote in his Manual of Parliamentary Practice: 5

"To what subjects this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty and cannot be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. (4) And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others."

This statement is both erroneous and incomplete, it seems, therefore, unfortunate that it should be reprinted in both Senate and House manuals without explanatory comment. It does not state all of the limitations which actually exist and the last two limitations stated do not exist. The last is effectively refuted by the statement quoted from Calhoun. The third is thus dealt with by Attorney General Griggs: "

"The regulation of fisheries in navigable waters within the territorial limits of the several States is, in the absence of a treaty, a subject of State rather than of Federal jurisdiction; but the government of the United States has power to enter into treaty stipulations on the subject, e.g., with Great Britain, for the regulation of the fisheries in the waters of the United States and Canada along the international boundary; and the fact that a treaty provision would annul and supersede a particular State law on the subject would be no objection to the validity of the treaty."

The limitation referred to last by Justice Field and first and second by Jefferson applies to the exercise of all powers in the field of foreign relations. They must be bona fide directed toward the conduct of international relations. Thus a purported declaration of war, really designed to excuse an invasion of the residual powers of the states, would doubtless be void; though it might be difficult to discover a court with sufficient temerity to declare it so, if con5 Art. 52, Moore, Digest, 5: 162.

• Senate, Manual, 1913, p. 149; Rules of H. of R., 1914, sec. 587, p. 252. Griggs, Att. Gen., 22 Op. 214 (1898), Moore, Digest, 5: 161-162. See also supra, sec. 50.

stitutional government had so lapsed in vigilance as to present the opportunity. Such acts can only be prevented by operation of the political checks upon government.8

68. Most Limitations Unimportant in Practice.

Although in theory constitutional limitations apply to the organs of government in the conduct of foreign relations, as well as domestic affairs, yet in practice it is discovered that many limitations, especially those for the protection of individual and states' rights, are applicable only within American territory and hence do not limit the exterritorial action of national organs. Furthermore, even when limitations are legally applicable, their enforcement is apt to belong to the political departments of government because of the disinclination of the courts to pass on "political questions." 10 Obviously the political departments are more likely to err on the side of an efficient exercise of national power than on the side of an excessive regard for constitutional limitations. Finally, even when such cases do come before the courts, they show an unquestionable tendency to interpret limitations less rigorously where foreign affairs are involved." 11 "In the exercise of its international and military power," says Freund, "the state is freed from many of the restraints under which it must conduct the peaceful government of its own citizens." 12 Though this can hardly be accepted in constitutional theory, except as explained above, undoubtedly, it is true in fact,13 and for reasons thus explained by Hamilton: 14

"As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power 8 Willoughby, op. cit., p. 504; Corwin, National Supremacy, pp. 302–308. 9 In re Ross, 140 U. S. 453.

10 Foster v. Neilson, 2 Pet. 253; The Prize Case, 2 Black 635; Texas v. White, 7 Wall. 700, Infra, sec. 107.

11 Dillon's case, 7 Sawyer 561, Fed. Cas. No. 3914 (1854); Moore, Digest, 5: 79; Supra, sec. 46.

12 Freund, The Police Power, Chicago, 1904, p. 4.

13 Note the long leash given to the military power during the Civil War as compared with the law as subsequently stated in Ex Parte Milligan, 4 Wall. 2; Rhodes, History of U. S., 4: 248 et seq.

14 The Federalist, No. 31, Ford ed., p. 194.

of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community."

69. Important Limitations from Separation of Powers.

In fact the only important legal limitation upon the foreign relations power seems to be that, resulting from the doctrine of separation of powers, that all acts must be performed by the organ designated for that purpose by the Constitution. With a proper application of the understandings of the Constitution this limitation does not interfere with an adequate meeting of international responsibilities and carrying out of national policies except in one case. This is where the achievement of these ends requires that powers be vested in an international body created by treaty. As we have seen there is no difficulty in vesting such a body with authority to decide on questions of fact and law since the treaty power, or the treaty power supplemented by congressional legislation have been held fully competent to create agencies for these purposes.15 A difficulty might arise, in case such a body were given appellate jurisdiction over the Supreme Court but this could be eliminated either by treaty provision for starting original action in the international tribunal or, in certain cases, by congressional provision for special tribunals within the United States, not exercising the judicial power of the United States, for the original hearing, from which appeal might be taken to the international court.16

A delegation of political power, that is legislative or treaty-making power, to such a body would be unconstitutional, but this never seems to have been contemplated. Bodies such as the Assembly and Council of the League of Nations, in which all binding political decisions require the assent of the American representative, would not violate this principle, since the American representative would presumably be instructed to withhold his consent or give merely tentative consent in any matter within the exclusive competence of Congress or the treaty-making power until those organs had acted.17

15 Supra, sec. 60, note 42; infra, secs. 225-227.

16 Supra, sec. 64.

17 Supra, sec. 63.

A too rigid application of the doctrine of separation of powers will inevitably produce friction between the departments and impair the ability of the government rapidly and efficiently to meet international responsibilities and to decide upon and carry out national policies. This difficulty may be greatly reduced through the regular observance by each organ of certain constitutional understandings, directing the method by which discretionary power ought to be exercised. Thus before making a decision each independent organ ought to consider the views of other independent organs whose cooperation will be necessary in order to carry out such decision; and after a decision has been made by any organ acting within its constitutional powers, all other independent organs ought to consider themselves bound to so exercise their powers as to give that decision full effect. The development of and adhesion to these understandings is most essential if foreign relations are to be carried on effectively by a government guaranteeing the separation of powers by its fundamental law. 18

PART IV.

THE POWER TO CONDUCT FOREIGN RELATIONS UNDER THE CONSTITUTION.

CHAPTER IX.

THE POSITION OF THE FOREIGN RELATIONS POWER IN THE CONSTITUTIONAL SYSTEM.

A. Source of National Powers.

70. Distribution of Powers Between States and National Govern

ment.

The Constitution establishes a federal government, certain powers being expressly or impliedly delegated to the national government, the rest, unless prohibited to the states, being reserved to the states respectively or to the people. Now the control of foreign 18 Infra, sec. 249.

affairs has been very largely vested in the national government. Its organs are given power to send and receive diplomatic officers, to make treaties, to grant letters of marque and reprisal, to declare and conduct war, to assume jurisdiction in cases involving foreign diplomatic officers, foreign states or the interpretation of treaties, to pass laws relating to foreign commerce, naturalization, piracies and offences against the law of nations and any other laws that may be necessary and proper for carrying any of these powers into execution.

On the other hand, the states are expressly forbidden to enter into any treaty, alliance, or confederation or, unless Congress consent, into any agreement or compact with a foreign power; to grant letters of marque and reprisal or without the consent of Congress to engage in war unless invaded or in imminent danger thereof; to lay tonnage, import or export duties, except for executing their inspection laws. The only powers connected with foreign relations which the states seem competent to exercise without congressional consent relate to the meeting of international responsibilities. The states have power to provide aliens within their borders the protection and to assure them the other rights, guaranteed by international law and treaty, and state judges are expressly enjoined to observe treaties as the supreme law of the land, anything in the state constitution or laws to the contrary notwithstanding. Full power to enforce treaties and international law within the state could doubtless be conferred upon national officers and courts by act of Congress under the necessary and proper clause, but the legislation at present in force is not complete and state authorities alone must be relied on to meet certain international responsibilities.

71. Theory of Sovereign Powers in National Government.

In view of the almost complete prohibition of the states from the control of foreign relations, it has been argued that the national government must necessarily have all powers in this field enjoyed by sovereign nations. Thus said Justice Field in the Chinese Exclusion Cases: 1

1 Chinese Exclusion Cases, 130 U. S. 581.

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