Congress
had passed laws regulating the hunting of migratory waterfowl on the basis
that such birds naturally migrated across State and International borders
freely and hence the regulation of the harvest of such birds could not
realistically be considered to be province solely of individual States.
Several
States objected to this theory and successfully sued to have the law
declared unconstitutional, on the basis that the Constitution gave
Congress no enumerated power to regulate migratory bird hunting, and hence
the regulation of such hunting, if there were to be any, was the province
of the States according to the 10th Amendment.
In
response, Congress, empowered the State Department to negotiate with the
Canadian government (actually being run out of the UK at that time) to
enact and ratify the Migratory Bird Treaty Act of 1918.
The
treaty, required the Federal government to enact laws regulating the
capturing, killing, or selling of the protected migratory birds.
As
an international treaty, the issue fell under the Federal Government's
power to regulate.
Missouri
then sued on the basis that the Federal government had no authority to
negotiate a treaty on this topic.
The
US Supreme Court held that the law was constitutional.
The
Supreme Court held that the treaties clause of the Constitution (Article
VI, clause 2), sometimes known as
the Supremacy Clause, makes treaties the supreme law of
the land, co-equal in status to the
Constitution itself, a finding that trumps any State concern with regard
to the provisions of any treaty, and further implying that treaty
provisions were not subject to questioning by the States under the
process of judicial review.
Many
persons saw this ruling as a dangerous implication that Congress or the
President could essentially amend the Constitution by the means of
treaties with other countries that would abrogate the rights of the people
or the States otherwise protected by American law.
In
the 1950s, conservative, isolationist lawmakers proposed a Constitutional
amendment (the Bricker Amendment) that would have stripped out the part
of the Constitution that said that treaties were the supreme law of
the land, co-equal in status to the
Constitution itself.It came
close to passing.
It
is theoretically possible that the Congress could make a Treaty with
Canada to, for example, remove the 1st Amendment and take away freedom of speech. Would that be
legal?If not, then why
should we assume that a Treaty that removes the power of the 10th
Amendment would be legal?
