In Geer v. Connecticut (1896), the Supreme Court held that a state owns its resident wild game and may regulate that game under its police powers. Congress later passed the Weeks-McLean Act (1913), which tightly regulated the hunting and marketing of certain migratory birds under the theory that those birds were only transitory dwellers in any one state.
A constitutional test of Weeks-McLean arose before Judge Jacob Trieber of the Eastern District of Arkansas (the first Jew to serve as a federal judge, for all you trivia wonks). Trieber relied heavily on Geer in his United States v. Shauver opinion. Because the national government didn’t own the wildlife within Arkansas’ borders, it couldn’t regulate it without some constitutional authorization. Trieber was “unable to find any provision in the constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game when in a state, and [was] therefore forced to the conclusion that the act is unconstitutional” as a violation of the Tenth Amendment.
The good lawyers in Congress knew that “all Treaties made . . . under the Authority of the United States” are the “supreme Law of the Land,” “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” so they entreated the State Department to negotiate with Britain (on behalf of Canada) a convention for the protection of migratory birds in the United States and Canada. In August 1916, President Wilson transmitted to the Senate a “Convention Between the United States and Great Britain for the Protection of Migratory Birds in the United States and Canada”:
The Migratory Bird Convention file also contains some interesting correspondence. Here’s a letter from Otto Widmann, Fellow of the American Ornithologists Union, to Missouri Senator William Stone (Chairman of the Senate Foreign Relations Committee):
“Knowing, as I do, that you always do the right thing in such matters, I did not think it necessary to write to you, but the Missouri Audubon Society wants me to call your attention to the great desirability of having the treaty between Canada and the United States in regard to international bird protection confirmed before Congress adjourns.”
This telegram, also sent to Senator Stone, is actually one of the more coherent ones you’ll find in the Archives:
“GIVE DUCKS A SHOW WE DONT WANT SPRING SHOOTING WE WANT GOVERNMENT PROTECTION GIVE US CHANCE TO VOTE ON TREATY WITH ENGLAND AND WE WILL SHOW A WHOLE LOT OF MISSOURIANS DONT COOPERATE WITH TOWN DUDES WHO WANT TO SHOOT DUCKS ON NESTS BEEN TOLD YOU AS HEAD OF FOREIGN COMMITTEE HAVE RIGHT TO LET US VOTE ON IT DONT KNOW WHETHER YOU ARE DUCK SHOOTER BUT IF YOU LIVED HERE YOU SOON KNOW BIRDS ARE GETTING SCARCE AND THAT SLAUGHTER IN SPRING IS DOING IT WE WILL BE MIGHTY THANKFUL IF YOU HELP OUT TREATY”
So Jos[h? José? Josew? Jos?] seems to be asking Senator Stone to cause a popular referendum on the Convention to be held in Missouri to prove that most Missourians don’t sympathize with the town thugs who butcher innocent birdies. Interesting.
The Convention is mostly remembered today for generating Missouri v. Holland (1920), which affirmed the constitutionality of 1918′s Migratory Bird Treaty Act, the Convention’s implementing legislation. Justice Holmes’ majority opinion first assailed the premise of Geer v. Connecticut: “Wild birds are not in the possession of anyone, and possession is the beginning of ownership. The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and, in a week, a thousand miles away. . . . The subject matter is only transitorily within the State, and has no permanent habitat therein.” Missouri v. Holland held that treaty-implementing legislation cannot be a legitimate target for claims that Congress has unconstitutionally exercised power reserved to the states. Seen another way, the case stands for the proposition that Congress can augment its legislative powers under the Constitution by passing laws necessary to fulfill treaty obligations.
The Supremacy Clause lists three varieties of “the supreme Law of the Land”: the Constitution itself, laws made pursuant to the Constitution, and treaties made under the authority of the United States. Nothing in the Constitution clearly compels the conclusion that duly made treaties inconsistent with some part of the Constitution are anything other than the supreme law of the land. Indeed, Missouri v. Holland allowed a treaty-executing law to alter the federal system, if only in a minor, obscure way. Senator John Bricker was outspoken in his fear that crafty foreigners might negotiate treaties with the United States in order to require Congress to abridge the constitutional rights of U.S. citizens. Accordingly, one iteration of his proposed constitutional amendment envisioned that “[a] provision of a treaty or other international agreement which conflicts with this Constitution, or which is not made in pursuance thereof, shall not be the supreme law of the land nor be of any force or effect.”
Congress never sent the Bricker Amendment to the states for ratification, but the Supreme Court did rule in Reid v. Covert (1957) that international agreements cannot abrogate individual constitutional rights: “[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” Black’s opinion reads an “in pursuance thereof” clause into the Constitution with respect to the supremacy of treaties—the Constitution itself places no “restraint” on the subject matter of treaties (they must merely be made under the “Authority of the United States”). Did Reid v. Covert implicitly overrule Missouri v. Holland, or did the Court simply fail to explain why international agreements may alter the federal system but not enhance the powers of government at the expense of individual rights?