PRIVATE RIGHTS AND STATES' RIGHTS. 189 



that the Senate was made such an important element in treaty- 

 making.^^ This function the Senate has recognized, and, especially 

 in the period before the Civil War, has frequently exercised a veto 

 upon treaties thought to violate states' rights, or redrafted them 

 so as to permit of state consent before the treaty became effective 

 within its territory."" The practice of the Senate, the opinions 

 of statesmen and dicta of the courts indicate that, except for the 

 most cogent reasons, the treaty power ought to exercise its powers 

 in such way as not to interfere with the control by the states of 

 their own land, natural resources, and public services and not to 

 interfere unnecessarily with the enforcement by the state of its own 

 policy with reference to the protection of public safety, health, 

 morals and economic welfare. 



51. Effect upon Power to Make Decisions upon National Policy. 



States' Rights have not interfered with the making and carrying 

 out of national decisions. Such decisions as the declaration of 

 war, recognition of foreign states and governments, annexation of 

 territory, etc., being of external application, have never been alleged 

 to conflict with states' rights, unless the protests of the Hartford 

 Convention against the War of 1812 be so considered. ^°^ The 

 exercise of war powers, has conflicted with alleged states' reserved 

 powers. Thus the drafting of armies was attacked as an impair- 

 ment of the states' reserved power over its militia. ^°- Though the 



9^ Ralston Hayden, The States' Rights Doctrine and the Treaty Making 

 Power, Am. Hist. Rev., 22: 56; Corwin, National Supremacy, 141, 302. The 

 fathers seem to have considered the Senate a special bulwark of states' 

 rights, Farrand, op. cit., 2: 393; The Federalist, No. 64 (Jay), Ford ed., 

 p. 432; Elliot, Debates, 4: 137. 



^°o Hayden, op. cit., Am. Hist. Rev., 22: 56. For example see supra, 

 note 79. 



101 See proposed amendment to the Constitution requiring two-thirds vote 

 of both houses to declare war, MacDonald, Select Documents in American 

 History, N. Y., 1898, p. 206. 



^02 Constitution, Art. I, sec. 8, cl. 15, 16. The national government can 

 call forth the militia, as such, only " to execute the laws of the Union, sup- 

 press insurrections and repel invasions," which does not permit of use out- 

 side the territory (Wickersham, Att. Gen., 29 Op. 322), but under present 

 law the militia are not used as such but are reenlisted in the national army 

 when called out for national service. (Act June 3, 1916, 39 stat. 200, 

 211, sees. 70, 71, 73, III.) The power to raise armies (Constitution, I, sec. 8, 



