Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland (2) and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of greater concentration of power in the hands of the national, rather than state, government) presaged things to come. Returning to Missouri--the case and the place--is a perfect point of departure for examining what international law and federalism have become since Missouri v. Holland was decided in 1920.
II. MIGRATORY BIRDS, COLLECTIVE ACTION, AND THE IMPORTANCE OF BEING MISSOURIAN
In Missouri v. Holland the Supreme Court upheld federal regulation of bird hunting in Missouri on the ground that statutes enacted pursuant to the national treaty power could serve to preempt state regulations--even where the subject matter did not fall within the powers of Congress enumerated in Article 1, Section 8 of the Constitution. The case is often cited for the basic proposition that the national government may do through treaty what it otherwise may not do through national legislation. (3) More precisely, the case is described as holding that limitations on the legislative powers of the national government do not apply when the national government either (1) ratifies a treaty that is self-executing--a treaty that does not require implementing legislation to be given effect, or (2) enacts legislation that otherwise would be outside the enumerated powers of Congress so long as that legislation implements a valid non-self-executing treaty.
The story behind the case begins with a classic collective action problem: regulating the hunting of migratory birds. (4) When European settlers arrived on this continent hundreds of species of migratory birds dominated the North American skies. By the late 19th Century, the unregulated hunting of migratory birds for their meat and plumage (satisfying the then-high demand for feathers for women's millinery) had reduced populations of many species to desperately low levels. (5) Migratory birds were especially vulnerable due to their habit of nesting in great numbers, making them an easy target for market hunters looking to take the highest quantity in the most efficient manner possible. (6) The plight of the now-extinct Ectopistes migratorius, or passenger pigeon, is illustrative. They were once the most populous species of bird in North America; naturalists estimate that there were as many as five billion passenger pigeons in North America at the time of the arrival of the Europeans. (7) They were so numerous that flocks of the migrating birds could stretch up to a mile wide and over 300 miles long, (8) and were so densely clustered that they were reported to blot out the sun for hours or even days at a time. (9) Yet, by the end of the 19th Century, passenger pigeons had been hunted to the brink of extinction. (10)
Prior to 1900, no federal law regulated the capture of migratory birds. Instead, a patchwork of state and territorial laws regulated bird hunting and resale. The states and territories faced a classic tragedy of the commons. Bird hunting filled a commercial need, which incentivized states to permit capture and incentivized hunters to violate or evade the hunting rules in other states. Absent coordination of hunting rules among the states and territories, overhunting was leading to near-extinction of some bird populations, including insectivorous species essential to agriculture. …