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 currency 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.322 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. Hylton323 the Court struck down the state law as violating the treaty that Article VI, paragraph 2, made superior. Justice Chase wrote: “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.”324

In Hopkirk v. Bell,325 the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitations 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 In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate.326 An example is Hauenstein v. Lynham,327 in which the Court upheld the right of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.328

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute that excluded aliens ineligible for American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.329 But, in Oyama v. California,330 a majority of the Court opined that this legislation conflicted with the Equal Protection Clause of the Fourteenth Amendment, a view that has since been endorsed by the California Supreme Court by a narrow majority.331 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.332


9 W. HENING, STATUTES OF VIRGINIA 377–380 (1821). back
3 U.S. (3 Dall.) 199 (1796). back
3 U.S. at 236–37. back
7 U.S. (3 Cr.) 454 (1806). back
See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 489–90 (1880). back
100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197–98 (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. back
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., 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). back
Terrace v. Thompson, 263 U.S. 197 (1923). back
332 U.S. 633 (1948). See also Takahashi v. Fish & Game Comm’n, 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. back
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, “[w]e are satisfied . . . were not intended to supersede domestic legislation.” That is, the Charter provisions were not self-executing. RESTATEMENT, FOREIGN RELATIONS, supra, § 701, Reporters’ Note 5, pp. 155–56. back
Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 187 (1961). back