284 BURR— THE TREATY-MAKING POWER [April 20-. 



reserved to the States, as subjects of legislation. Two forces thens 

 enter the same field. Shall either dominate wholly? Shall each 

 prevail in part? Is compromise possible? 



It will therefore be the main purpose of this essay to examine 

 inductively the data available for the solution of these two prob- 

 lems: the power of President and Senate, first, as opposed to Con- 

 gress ; and, second, as opposed to the several States. Finally, when 

 the true relationships shall have been realized, an understanding of 

 the methods of enforcing rights recognized or granted by treaty 

 should naturally follow. But before an examination of the funda- 

 mental problems relating to the exercise of the treaty-making power 

 be attempted, one must pause for a preliminary observation, even 

 though it be a priori in its nature. The subject of treaties is rarely 

 touched upon by essayists or text-book writers without a statement 

 being made to the efifect that a treaty may not be made to change the 

 nature of our government, alter its departmental structure, or 

 operate to deprive one department of a delegated power. A treaty 

 could not, it is repeatedly said, provide that hereafter a particular 

 State should have three senators. The reason for this position set 

 forth in one form or another is always substantially to the effect 

 that a power granted under an instrument must not be so construed 

 as to change the instrument, or, in a more exaggerated instance, to 

 destroy it. That argument — although not without the appearance 

 and perhaps some reality of validity — misses the mark. 



On altogether simple lines the Constitution of the United States 

 was evolved. Certain fundamental principles were adopted and 

 formulated; applications of those principles, details of organization 

 were left to time and the nation that was to come. There was estab- 

 lished the executive department, the judicial, the legislative. To this 

 last were committed certain subjects of legislation — all others being 

 reserved to the States. The power of this new government to treat 

 with other sovereignties remained. It was confided to the Presi- 

 dent and Senate acting by a two-thirds majority of those present. 

 Then, by express provision, the power to enter into any treaty was 

 prohibited to the States. Why was not the treaty-making power 

 expressly inhibited from nullifying the other provisions of the 



