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



There is, however, a prehminary point which should be ehici- 

 dated. It will have been observed that while considering the series 

 of cases illustrating and establishing the supremacy of treaty pro- 

 visions over State laws, the effect of the Tenth Amendment to the 

 constitution was not considered. It has, however, been made of 

 much importance by those who have advocated the supremacy of 

 State rights, which rights they have called by virtue of this amend- 

 ment, " the reserved rights of the States." The amendment is in 

 these words : 



" The powers not delegated to the United States by the Constitution, nor 

 prohibited by it to the States, are reserved to the States respectively, or to 

 the people." 



At the time of analyzing the cases referred to. this amendment was 

 purposely not discussed because it was deemed to be wholly im- 

 material. The constitutional debates, and the political literature of 

 that day show conclusively that the authors of the Constitution 

 regarded the Federal government as one essentiall); of enumerated 

 powers, apart from any and all amendments. The Tenth was 

 adopted merely as declaratory of the interpretation which must prop- 

 erly in all events have been given to the Constitution, and to free the 

 minds of certain persons who considered that the agreement of all 

 parties that the Federal government was one of enumerated powers 

 only, should be placed beyond the possibility of future and wrongful 

 breach. It was considered to have, and it did have, no repealing 

 or modifying force on the provisions of the Constitution itself. 

 Throughout the debates. Federal and State, leading to the adoption 

 of the Constitution or looking toward its amendment, one may search 

 in vain for any suggestion that the limitations therein provided had 

 any reference to the treaty power. The very language of the amend- 

 ment would seem to establish this fact. What are the powers re- 

 served to the States thereby? "The powers," first, says the amend- 

 ment, "not delegated to the United States," and second, adds the 

 amendment, not "prohibited by it to the States." Now, by the Con- 

 stitution the power to make treaties is specifically granted to the 

 Federal government in the Second Section of the Second Article, and 

 specifically prohibited to the States by the Tenth Section of the First 



