International Law Stories by John Noyes Laura Dickinson Mark Janis

Author:John Noyes,Laura Dickinson,Mark Janis
Language: eng
Format: epub
ISBN: 9781628107203
Publisher: West Academic
Published: 2016-11-09T05:00:00+00:00

Conclusion

It is doubtful that Crosby or any subsequent judgment of the Supreme Court will ever absolutely resolve the built-in constitutional conflict between the protection of the rights of the American states and those of the U.S. nation vis-à-vis the treaty power. Albeit Missouri v. Holland was a victory for the power of the national government to make international law free of the sovereign assertions of the fifty states, U.S. practice shows again and again that the politics of states’ rights remains a powerful political force. As with the Eisenhower administration at the time of the Bricker Amendment, modern American Presidents, as well as the Senate and House of Representatives, are and will sometimes be reluctant, for political if not legal reasons, to impose international rules in areas where the states traditionally exert sovereign powers. No doubt other countries will continue to be exasperated to learn that the U.S. national government will sometimes refuse to act internationally and instead defer to states’ rights.

What Missouri v. Holland does, however, establish is that when the national political will is strong enough to employ the treaty power to implement international rules against the states, the Supreme Court and the Constitution will permit it, so long as the treaty does not violate an explicit term of the Constitution and is reasonably “international” in 228

focus. This appears to be the lesson drawn not only from Missouri v. Holland in its immediate political context, migratory birds, but that drawn from the painful experiences of American political history, notably the Civil War, which has probably settled, once and for all, in Justice Holmes’s words, that we Americans have spent “much sweat and blood to prove that [we have] created a nation.”101

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