282 BURR— THE TREATY-MAKING POWER [April 20, 



merated subjects, is vested in Congress composed of two houses, 

 one intended to be representative of the several States and the 

 -other of the people at large. The executive power is committed to 

 the President; the judicial power is established in the Supreme 

 Court, and in such inferior courts as may be ordained by Congress. 

 The treaty-making power occupies an anomalous position. It is 

 given to the President acting in conjunction with two-thirds of the 

 Senate, and the judicial power is declared to extend to cases arising 

 under treaties. Finally there is inserted the solemn declaration 

 that the Constitution, the laws of the United States, and all treaties, 

 shall be supreme law above the constitution and laws of each State. 

 The amendments to the Constitution neither expressly nor appar- 

 ently affect the treaty-making power or its exercise. The first ten 

 were adopted immediately after the ratification of the Constitution, 

 and of these all but the last two were intended and have been inter- 

 preted to operate as restraints on Federal action. These two con- 

 stitute a specific reservation to the States of all powers not dele- 

 gated to the United States nor prohibited to the States by the Con- 

 stitution. 



When one comes to deal with the problems arising out of the 

 exercise of the treaty-making power, it is essential to appreciate one 

 basic fact : that the treaty-making power is in its essence a power 

 to deal with parties — all other powers granted to the Federal 

 government or reserved to the States, are powers to deal with 

 subjects. About to enter into the consideration of controverted 

 problems, one seeks for words with which to emphasize and 

 throw into high relief this determining consideration. Always must 

 it be borne in mind as a significant factor in the problem, and to 

 recognize it, is often to find the answer. A treaty is a contract made 

 with another sovereignty. It is the fact that the contract is made 

 with a sovereign nation — that is, made with a certain party — which 

 constitutes it a treaty. On the other hand, it is the nature of the 

 subject legislated upon which brings it within the power of Con- 

 gress, or relegates it to the States. Attempts to reconcile, or rather 

 to make mutually consistent, the treaty clauses of the Constitution 

 and, for example, those clauses giving power of legislation to Con- 



