Page 158 - Law of Peace, Volume ,

Pam 27-161-1

that the two powers would take or propose to their lawmaking bodies
that necessary measures for carrying the treaty out. 39 Stat. 1702. The Here a national interest of very nearly the fmt magnitude is involved;
above mentioned act of July 3,1918, entitled an act to give effect to the It can be protected only by national action in concert with that of ariother
convention, prohibited the killing, capturing or selling any of the migrat- power. The subject matter is only transitorily within the State and has no
ing birds included in the terms of the treaty except as permitted by permanent habitat therein. But for the treaty and the statute there soon
regulations compatible with those terms, to be made by the Secretary of might be no birds for any powers to deal with. We see nothing in the
Agriculture. Regulations were proclaimed on July 31, and October 25, Constitution that compels the Government to sit by whiie a food supply
1918. 40 Stat. 1812, 1863 . . . mhe question raised is the general one is cut off and the protectors of our forests and our crops are destroyed; It
whether the treaty and statute are void as an interference with the rights is not sufficient to rely upon the States. The reliance is vain, and were it
resewed to the States. othenvise, the question is whether the United States is forbidden to act.
To answer this question it is not enough to refer to the Tenth We are of opinion that the treaty and statute must be upheld. .. .
Amendment, reserving the powers not delegated to the United States, No treaty has ever. been held unconstitutional by the
because by Article 2, Section 2, the power to make treaties is delegated
expressly, and by Article 6 treaties made under the authority of the Supreme Court. 92 The Court has, however, in compan-
United States, along with the Constitution and laws of the United States ion cases greatly affecting certain aspects of military
made in pursuance thereof, are declared the supreme law of the land. If justice, emphatically declared that both treaties and laws
the treaty is valid there can be no dispute about the validity of the statute enacted pursuant to them mustcomply with the provision-
under Article 1, Section 8, as a necessary and proper means to execute
the power of the Government. The language of the Constitution as to ing of the Constitution.
the supremacy of treaties beii general, the question before us is nar- REID v. COVERT
rowed to an inquiry into the ground upon which the present supposed KINSELLA v. KRUEGER
exception is placed. Supreme Court of the United States, 1957
It is said that a treaty cannot be valid if it infringes the Constitution, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148
that there are limits, therefore, to the treaty-making power, and that
[Two wives of American servicemen stationed in the United
one such limit is that what an act of Congress could not do unaided, in Kingdom and Japan respectively had been convicted by United States'
derogation of the powers reserved to the States, a tfeaty cannot do. An military courts of the murder of their husbands. The Supreme Court
earlier act of Congress that attempted by itself and not in pursuance of a held that civilian dependents accompanying members of the armed
treaty to regulate the killing of migratory birds within the States had forces overseas in time of peace could not be constitutionally tried by
been held bad in the District Court. United States v. Shauver, 214 F. military courts.]
154. United States v. McCullagh, 221 F. 288. Those decisions were sup- BLACK,J. .. . At the time of Mrs. Covert's alleged offense,
ported by arguments that migratory buds were owned by the States in an executive agreement was in effect between the United
their sovereign capacity for the benefit of their people, and that under States and Great Britain which permitted United States' military courts
cases like Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. to exercise exclusive jurisdiction over offenses committed in Great Bri-
793, this control was one that Congress had no power to displace. The tain by American servicemen or their dependents. For its part, the
same argument is supposed to apply now with equal force. United States agreed that these military courts would be willing and able
Whether the two cases cited were decided rightly or not they cannot to try and to punish all offenses against the laws of Great Britain by such
be accepted as a test of the treaty power. Acts of Congress are the persons. In all material respects, the same situation existed in Japan
supreme law of the land only when made in pursuance of the Constitu- when Mrs. Smith killed her husband. Even though a court-martial does
tion, while treaties are declared to be so when made under the authority not give an accused trial by jury and other Bii of Rights protections,
of the United States. It is open to question whether the authority of the the Government contends that article 2(11) of UCMJ, insofar as it pro-
United States means more than the formal acts prescribed to make the vides for the military trial of dependents accompanying the armed forces
convention. We do not mean to imply that there are no qualif~cations to in Great Britain and Japan, can be sustained as legislation which is
the treaty-making power; but they must be ascertained in a different necessary and proper to cany out the United States' obligations under
way. It is obvious that there may be matters of the sharpest exigency for the international agreements made with those countries. The obvious
the national well being that an act of Congress could not deal with but and decisive answer to this, of course, is that no agreement with a
that a treaty followed by such an act could, and it is not likely to be foreign nation can confer power on the Congress, or on any other
assumed that, in matters requiring national act, "a power which must branch of Government, which is free from the restraints of the Con-
belong to and somewhere reside in every civilized government" is not stitution.
to be found. . . . Article VI, the Supremacy Clause of the Constitution, declares:
The treaty in question does not contravene any prohibitory words to This Constitution, and the Laws of the United States which shall be
be found in the Constitution. The only question is whether it is forbid- made in Pursuance thereof; and all Treaties made, or which shall be
den by some invisible radiation from the general terms of the Tenth made, under the Authority of the United States, shall be the supreme
Amendment. We must consider what this country has become in decid- Law of the land; .. .
ing what the amendment has resewed. There is nothing in this language which intimates that treaties and laws
The State as we have intimated founds its claim of exclusive authority enacted pursuant to them do not have to comply with the provisions of
upon an assertion of title to migratory buds, an assertion that is em- the Constitution. Nor is there anything in the debates which accom-
bodied in statute. .. .If we are to be accurate we cannot put the case of panied the drafting and ratification of the Constitution which even sug-
the State upon higher ground than that the treaty deals with creatures gests such a result. These debates as well as the history that surrounds
that for the moment are within the state borders, that it must be carried the adoption of the treaty provision in Article VI make it clear that the
out by officers of the United States within the same territory, and that reason treaties were not limited to those made in "pursuance" of the
but for the treaty the State would be free to regulate this subject itself. Constitution was so that agreements made by the United States under
As most of the laws of the United States are carried out within the the Articles of Confederation, including the important peace treaties
States and as many of them deal with matters which in the silence of which concluded the Revolutionary War, would remain in effect. It
such laws the State might regulate, such general grounds are not enough would be manifestly contrary to the objectives of those who created the
to support Missouri's claim. . . . No doubt the great body of private rela-
tions usually fall within the control of the State, but a treaty may over- 92. But c$, Byrd, Treaties and Executive Agreements in The United
ride its power. States (1960).