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Treaties and the States.—As it so happened, the first case in which the Supreme Court dealt with the question of the effect of treaties on state laws involved the same issue that had prompted the drafting of Article VI, paragraph 2. During the Revolutionary War, the Virginia legislature provided that the Commonwealth’s paper money, which was depreciating rapidly, was to be legal cur[p.473]rency for the payment of debts and to confound creditors who would not accept the currency provided that Virginia citizens could pay into the state treasury debts owed by them to subjects of Great Britain, which money was to be used to prosecute the war, and that the auditor would give the debtor a certificate of payment which would discharge the debtor of all future obligations to the creditor.274 The Virginia scheme directly contradicted the assurances in the peace treaty that no bars to collection by British creditors would be raised, and in Ware v. Hylton275 the Court struck down the state law as violative of the treaty that Article VI, paragraph 2, made superior. Said Justice Chase: “A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the constitution of a State . . . must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States shall be superior to the Constitution and laws of any individual State; and their will alone is to decide.”276

In Hopkirk v. Bell,277 the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitation to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate.278 Such a case was Hauenstein v. Lynham,279 in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same, and to export the proceeds of the sale.280


Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.281 But in Oyama v. California,282 a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of the Fourteenth Amendment, a view which has since received the endorsement of the California Supreme Court by a narrow majority.283 Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923, between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation.284

Treaties and Congress.—In the Convention, a proposal to require the adoption of treaties through enactment of a law before they should be binding was rejected.285 But the years since have seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the ef[p.475]fects of statutes, in connection with the treaty power. For purposes of this section, the question is whether entry into and ratification of a treaty is sufficient in all cases to make the treaty provisions the “law of the land” or whether there are some types of treaty provisions which only a subsequent act of Congress can put into effect? The language quoted above286 from Foster v. Neilson287 early established that not all treaties are self–executing, for as Marshall there said, a treaty is “to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.”288

Leaving aside the question when a treaty is and is not self– executing,289 the issue of the necessity of congressional implementation and the obligation to implement has frequently roiled congressional debates. The matter arose initially in 1796 in connection with the Jay Treaty,290 certain provisions of which required appropriations to carry them into effect. In view of the third clause of Article I, Sec. 9, which says that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . .”, it seems to have been universally conceded that Congress must be applied to if the treaty provisions were to be executed.291 A bill was introduced into the House to appropriate the needed funds and its supporters, within and without Congress, offered the contention that inasmuch as the treaty was now the law of the land the legislative branch was bound to enact the bill without further ado; opponents led by Madison and Gallatin contended that the House had complete discretion whether or not to carry into effect treaty provisions.292 At the conclusion of the debate, the House voted not only the money but a resolution offered by Madison stating that it did[p.476]not claim any agency in the treaty–making process, “but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.”293 This early precedent with regard to appropriations has apparently been uniformly adhered to.294

Similarly, with regard to treaties which modify and change commercial tariff arrangements, the practice has been that the House always insisted on and the Senate acquiesced in legislation to carry into effect the provisions of such treaties.295 The earliest congressional dispute came over an 1815 Convention with Great Britain,296 which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation as the convention might require for effectuation. The Senate and some members of the House were of the view that no implementing legislation was necessary because of a statute, which already permitted the President to reduce duties on goods of nations that did not discriminate against United States goods; the House majority felt otherwise and compromise legislation was finally enacted acceptable to both points of view.297 But subsequent cases have seen legislation enacted,298 the Senate once refused ratification of a treaty, which purported to reduce statutorily–determined duties,299 and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity of some form of congressional implementation.

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by the Secretary of State, it is said, in summary of the practice and reasoning from the text of the Constitution, that the limitation on the treaty power which necessitate legislative implementation may[p.477]“be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . .”300 The same thought has been expressed in Congress301 and by commentators.302 Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for the courts.


274 9 W. Hening, Statutes of Virginia (Richmond: 1821), 377– 380.
275 3 Dall. (3 U.S.) 199 (1796).
276 Id., 236–237 (emphasis by Court).
277 3 Cr. (7 U.S.) 454 (1806).
278 See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 489–490 (1880).
279 100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197–198 (1961), the International Monetary Fund (Bretton Woods) Agreement of 1945, to which the United States and Yugoslavia were parties, and an Agreement of 1948 between these two nations, coupled with continued American observance of an 1881 treaty granting reciprocal rights of inheritance to Yugoslavian and American nations, were held to preclude Oregon from denying Yugoslavian aliens their treaty rights because of a fear that Yugoslavian currency laws implementing such Agreements prevented American nationals from withdrawing the proceeds from the sale of property inherited in the latter country.
280 See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a state statute which denied to a non–resident alien wife of a person killed within the State, the right to sue for wrongful death. Such right was afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen’s Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato v. Royer, 270 U.S. 535 (1926).
281 Terrace v. Thompson, 263 U.S. 197 (1923).
282 332 U.S. 633 (1948). See also Takahashi v. Fish Comm., 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship was disallowed, both on the basis of the Fourteenth Amendment and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was relied upon.
283 This occurred in the much advertised case of Sei Fujii v. State, 38 Cal. 2d 718, 242 P. 2d 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55 and 56], said Chief Justice Gibson, “we are satisfied . . . were not intended to supersede domestic legislation.” That is, the Charter provisions were not self–executing. Restatement, Foreign Relations, op. cit., n.262, Sec. 701, Reporters’ Note 5, pp. 155–156.
284 Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 187 (1961).
285 2 M. Farrand, op. cit., n.4, 392–394.
286 Supra, text at n.265.
287 2 Pet. (27 U.S.) 253, 314 (1829).
288 Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): “When the stipulations are not self–executing they can only be enforced pursuant to legislation to carry them into effect. . . . If the treaty contains stipulations which are self–executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.”; S. Crandall, op. cit., n.264, chs. 11–15.
289 See infra, text at nn.312–316.
290 8 Stat. 116 (1794).
291 The story is told in numerous sources. E.g., S. Crandall, op. cit., n.264, 165–171. For Washington’s message refusing to submit papers relating to the treaty to the House, see J. Richardson, op. cit., n.42, 123.
292 Debate in the House ran for more than a month. It was excerpted from the Annals and separately published as Debates in the House of Representatives of the United States, During the First Session of the Fourth Congress upon the Constitutional Powers of the House with Respect to Treaties (Philadelphia: 1796). A source of much valuable information on the views of the Framers and those who came after them on the treaty power, the debates are analyzed in detail in E. Byrd, Treaties and Executive Agreements in the United States (The Hague: 1960), 35–59.
293 5 Annals of Congress 771, 782 (1796). A resolution similar in language was adopted by the House in 1871. Cong. Globe, 42d Congress, 1st sess. (1871), 835.
294 S. Crandall, op. cit., n.264, 171–182; 1 W. Willoughby, The Constitutional Law of the United States (New York: 2d ed. 1929), 549– 552; but see Restatement, Foreign Relations, op. cit., n.262, Sec. 111, Reporters’ Note 7, p. 57. See also H. Rept. 4177, 49th Congress, 2d sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).
295 S. Crandall, op. cit., n.264, 183–199.
296 8 Stat. 228 (1815).
297 3 Stat. 255 (1816). See S. Crandall, op. cit., n.264, 184– 188.
298 Id., 188–195; 1 W. Willoughby, op. cit., n.294, 555–560.
299 S. Crandall, op. cit., n.264, 189–190.
300 Anderson, The Extent and Limitations of the Treaty–Making Power, 1 J. Int. L.636,641 (1907).
301 At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was bound to provide, but did not indicate what in their opinion made some treaties self–executing and others not. 29 Annals of Congress 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed, that legislative implementation was necessary to carry into effect all treaties which contained “stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory. . . .” Id., 1019. Much the same language was included in a later report. H. Rept. No. 37, 40th Congress, 2d sess. (1868). Controversy with respect to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C.Cir.), cert. den., 436 U. S. 907 (1978).
302 T. Cooley, General Principles of Constitutional Law (New York: 3d ed. 1898, 175; Q. Wright, The Control of American Foreign Relations (New York: 1922), 353–356.
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