The Twentieth Century American / Being a Comparative Study of the Peoples of the Two Great Anglo-Saxon Nations

by Harry Perry Robinson

This, I say, is the general opinion of thinking men in other countries; but, however desirable it may be that the General Government should have the power to compel the individual States to comply with the requirements of the national undertakings, it is difficult, so long as the several States continue jealous of their sovereignty without regard to the national honour, to see how the end is to be arrived at.

The first obvious fact is that all treaties are made by the President "by and with the advice and consent of the Senate" and no treaty is valid until ratified by a vote of the Senate in which "two thirds of the Senators present concur." The Senate occupies a peculiar position in the scheme of government. It does not represent either the nation as a whole nor, like the House of Representatives, the people as a whole. The Senate represents the individual States each acting in its sovereign capacity[287:1]; and the voice of the Senate is the voice of those States as separate entities. When the Senate passes upon any question it has been passed upon by each several State and it is not easy to see how any particular State can claim to be exempt from the responsibility of any vote of the Senate as a whole.

It would appear to follow of necessity that when the Senate has by a formal two-thirds vote ratified a treaty, every State is bound to accept all the obligations of that treaty, not merely as part of the nation but as a separate unit. The provision in the Constitution which makes the vote of the Senate on any treaty necessary can have no other intent than to bind the several States themselves. As a matter of historical accuracy it had no other intent when it was framed.

In the particular case of the Japanese treaty, the time for the State of California to have made its attitude known was surely when the treaty passed the Senate. The California Senators, or the people of the State, had then two honest courses open to them. They could have let it be known unequivocally that they did not propose to hold themselves bound by the action of the Senate but would, if any attempt were made to force them to comply with the terms of the treaty, secede from the Union; or they could have determined there and then to abide loyally by the terms of the treaty and no matter at what cost to the State, or at what sacrifice of their amour propre, to see that all the rights provided in the treaty were accorded to Japanese within the State. Either of these courses would have been honest; and Japanese who came to California would have come with their eyes open. The course which was followed, of allowing them to settle in the State in the expectation of receiving that treatment to which the faith of the United States was pledged, and then denying them that treatment, was distinctly dishonest.

If, however, the State of California, or any other individual State, refuses to acknowledge the responsibilities which it has assumed by the vote of the Chamber of which its representatives are members, there appears no way in which the Federal Government can compel such acknowledgment except those of force and what the believers in the extreme doctrine of State Sovereignty consider Constitutional Usurpation.

It has in many cases been necessary as the conditions of the country have changed so to interpret the phrases of the Constitution as to give to the General Government powers which cannot have been contemplated by the framers of that instrument. In this case there is every evidence, however, that the framers did intend that the General Government should have precisely those powers which it now desires—or that the individual States should be subject to precisely those responsibilities which they now seek to evade—and if any sentence in the Constitution can be so interpreted as to give to the General Government the power to compel States to respect the treaties made by the nation, it seems unnecessary to shrink from putting such interpretation upon it.

Under the Constitution, Congress has the power to "regulate commerce with foreign nations"—and commerce is a term which has many meanings—as well as "to define and punish offences against the law of nations" and to "make all laws which shall be necessary for carrying into execution the foregoing powers." The President is invested with the power, "by and with the advice of the Senate, to make treaties," and he is charged with the duty of taking "care that the laws be faithfully executed." It would seem that among these provisions there is specific authority enough to cover the case, if the will to use that authority be there. And I believe that in a large majority of the people the will is there.

It would appear to be competent for Congress to "define" any failure on the part of the citizens of any State to comply with whatever requirements in the treatment of foreigners may be imposed on them by a treaty into which the nation has entered, as an "offence against the law of nations." This power of "definition" on the part of Congress is quite unhampered. So also is the power "to make all laws which shall be necessary and proper for carrying into execution" the powers of definition and punishment. And it would be the duty of the President and the Federal Courts to take care that the laws were executed.

If there would be any "usurpation" involved in such an interpretation of the phrases of the Constitution it is certainly less—much less, when regard is had to the intention of the framers of the Constitution—than other "usurpations" which have been effected, and sometimes without protest from the individual States; as, for instance, by the expansion of the right to regulate commerce between the several States into an authority to deal with all manner of details of the control of railways of which the framers of the Constitution never contemplated the existence. It cannot even remotely be compared with such an extension of the Federal power as would be involved in the translation of the authority to "establish post-offices and post-roads" as empowering the government to take an even larger measure of control over those railroads than can be compassed under the right to regulate commerce—a translation which seems to have the approval of President Roosevelt.

Incidentally it may be remarked that it would be peculiarly interesting if, at this day, that authority to construct post-roads should thus be invoked to give the General Government new powers of wide scope, when we remember that it was this same provision of the Constitution which stood sponsor for the very earliest steps which, in the construction of the Cumberland Road and other military or post routes, the young republic took in the path of practical federalism.