International Executive Agreements: Democratic Procedure under the Constitution of the United States

By Wallace McClure | Go to book overview

Chapter 12 THE POWER OF THE PRESIDENT COMBINED WITH THE POWER OF CONGRESS

ONE of the most vigorous and scholarly of authorities on the constitutional aspects of international relations, publishing, in 1902, his admirable treatise on The Treaty-making Power of the United States,1 set forth his general creed as follows:

The author fully appreciates that any attempt to extend Federal jurisdiction to matters which are not clearly expressed in the Constitution carries with it the onus probandi to its fullest extent. He is, however, so firmly convinced that the government of the United States is completely endowed with all the essential attributes of nationality and sovereignty in regard to National affairs that he feels fully justified in expressing the following opinion:

First: That the treaty-making power of the United States, as vested in the Central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that Government as an attribute of sovereignty, and that it extends to every subject which can be the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treaty-making power in any manner whatever and vested that power exclusively in, and expressly delegated it to, the Federal Government.

Second: That this power exists in, and can be exercised by, the National Government, whenever foreign relations of any kind are established with any other sovereign power, in regulating by treaty the use of property belonging to States or the citizens thereof, such as canals, railroads, fisheries, public lands, mining claims, etc.; in regulating the descent or possession of property within the otherwise exclusive jurisdiction of States; in surrendering citizens and inhabitants of States to foreign powers for punishment of crimes committed outside of the jurisdiction of the United States or of any State or territory thereof; in fact, that the power of the United States to enter into treaty stipulations in regard to all matters, which can properly

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1
By Charles Henry Butler, I, 4-6, sec. 3.

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