Missouri v. Holland
252 U.S. 416 (1920)

  •  Congress had passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across State and International borders freely and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual States.
  • Several States objected to this theory and successfully sued to have the law declared unconstitutional, on the basis that the Constitution gave Congress no enumerated power to regulate migratory bird hunting, and hence the regulation of such hunting, if there were to be any, was the province of the States according to the 10th Amendment.
  • In response, Congress, empowered the State Department to negotiate with the Canadian government (actually being run out of the UK at that time) to enact and ratify the Migratory Bird Treaty Act of 1918.
    • The treaty, required the Federal government to enact laws regulating the capturing, killing, or selling of the protected migratory birds.
    • As an international treaty, the issue fell under the Federal Government’s power to regulate.
  • Missouri then sued on the basis that the Federal government had no authority to negotiate a treaty on this topic.
  • The US Supreme Court held that the law was constitutional.
    • The Supreme Court held that the treaties clause of the Constitution (Article VI, clause 2), sometimes known as the Supremacy Clause, makes treaties the supreme law of the land, co-equal in status to the Constitution itself, a finding that trumps any State concern with regard to the provisions of any treaty, and further implying that treaty provisions were not subject to questioning by the States under the process of judicial review.
  • Many persons saw this ruling as a dangerous implication that Congress or the President could essentially amend the Constitution by the means of treaties with other countries that would abrogate the rights of the people or the States otherwise protected by American law.
    • In the 1950s, conservative, isolationist lawmakers proposed a Constitutional amendment (the Bricker Amendment) that would have stripped out the part of the Constitution that said that treaties were the supreme law of the land, co-equal in status to the Constitution itself.  It came close to passing.
  • It is theoretically possible that the Congress could make a Treaty with Canada to, for example, remove the 1st Amendment and take away freedom of speech. Would that be legal?  If not, then why should we assume that a Treaty that removes the power of the 10th Amendment would be legal?