1912.] OF THE UNITED STATES. 363 



Article. A mediaeval theologian alone — and his logic is not the kind 

 used today — could demonstrate that with both exceptions named in 

 the amendment specitically existing, such amendment was none the 

 less effective in limitation of the treaty-making power. The re- 

 served rights of the States are necessarily and by virtue of the very 

 words of the Tenth Amendment, those rights which remain after 

 the grant, first, of the treaty-making power, and, second, of the 

 power to Congress to legislate upon certain subjects. The Tenth 

 Amendment, therefore, leaves the treaty-making power of the United 

 States unaltered and precisely as granted by the Constitution. 



The most cursory examination of the judicial opinions quoted 

 above on the supremacy of State police power, shows that this 

 supremacy was maintained alike over treaty provision and act of 

 Congress. No superior efificacy is claimed for act of Congress or 

 for treaty. It is Federal supremacy which is challenged, and the 

 manner of its manifestation is indifferent. It must of necessity be 

 so; for in the Sixth Article of the Constitution "the laws of the 

 United States which shall be made in pursuance " of the Constitu- 

 tion, and " all treaties made, or which shall be made, under the 

 authority of the United States " are placed on equal footing, and 

 given the same efficacy. The treaty power may deal with subjects 

 which have been the subjects of congressional legislation ; it may 

 deal also with subjects beyond the legislation of Congress. But the 

 question is not one of the extent of the treaty-making power, or of 

 congressional action ; that is determined ; the treaty-making power 

 must act upon subjects properly and customarily the subjects of 

 treaty ; congressional action must be within the constitutionally dele- 

 gated powers. The question is essentially one of the effectiveness 

 of treaty provision or of act of Congress when in conflict with State 

 police power ; and no more efficacy and no less can be claimed for 

 treaty provision than for act of Congress. Inasmuch as the doctrine 

 that the police power is an inviolable attribute of State sovereignty, 

 and beyond the sphere of activity of Federal treaty and Federal law 

 alike, it is essential that any analysis of the subject should extend to 

 both manifestations of Federal activity. What is true of the effec- 

 tiveness of one is inevitably true of the effectiveness of the other. 



