216 WRIGHT— CONSTITUTIONAL LIMITATIONS. 



Finally, judicial decisions on political questions have been alleged 

 to encroach upon the powers of the President and Congress. 



CHAPTER VIII. 

 Conclusion on Constitutional Limitations. 



67. Traditional Statements of Limitations upon the Treaty Power. 



As we have seen, limitations upon the power of national organs 

 are of three kinds, in defense of the rights and privileges of individ- 

 uals, the rights and privileges of the states, and the rights, privi- 

 leges and powers of the organs of the national government. The 

 observance of these limitations is considered essential to the preser- 

 vation respectively of individual liberty, the autonomy of the states, 

 and the separation of powers. 



These three types of limitations are expressed in the classic 

 statement of Justice Field in reference to the treaty power : ^ 



" The treaty power, as expressed in the Constitution, is in terms un- 

 limited except by those restraints which are found in that instrument against 

 the action of the government or of its departments, and those arising from 

 the nature of the government and of that of the States. It would not be 

 contended that it extends so far as to authorize what the Constitution 

 forbids, or a change in the character of the government or in that of one 

 of the States, or a cession of any portion of the territory of the latter, 

 without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 

 525, 541. But with these exceptions, it is not perceived that' there is any 

 limit to the questions which can be adjusted touching any matter which is 

 properly the subject of negotiation with a foreign country. Ware v. 

 Hylt'on, 3 Dall. 199; Chirac z: Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 

 100 U. S. 483; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 California 

 381." 



Jefferson and Calhoun each attempted to define the limits of the 

 treaty power in well-known statements. Calhoun wrote : - 



" It (the treaty-making power) is . . . limited by all the provisions of 

 the Constitution which inhibit certain acts from being done by the govern- 

 ment, or any of its departments ; of which description there are many. It 

 is also limited by such provisions of the Constitution as direct certain act's to 



1 Geofroy v. Riggs, 133 U. S. 258, 267 (1890). 



2 Calhoun, Discourse on Constitutional Government of U. S., Works, I : 

 203 ; Moore, Digest, 5 : 166. 



