The New Cold War
America, China, and the Echoes of History
THE treaty-making power did not figure as one of the major problems of the convention which drafted our national Constitution, nor of the state conventions which considered that instrument, though it was in each instance the subject of debate. During the years which have since elapsed the American public have often been deeply interested in the provisions of particular treaties, but have not appeared to be much concerned with the constitutional questions involved in their making and enforcement. However, these questions have from time to time stirred executive and legislative members of our government and those whose writings are directed to the constitutional field. Such persons have often held distinctly variant views as to the proper coöperation of President and Senate in the making of treaties. They have also differed as to the scope of the treaty-making power in relation to those powers of legislation granted to Congress by the Constitution and the necessity of coöperation by the House in putting treaty provisions into effect, as well as to the right of the federal government to deal by treaty with subjects which fall within the ordinary scope of the legislative powers reserved to the several States. Here are problems of government of much interest and of really great importance. It is worth while to consider the proper interpretation of the Constitution on these points, what the practices have been, and how our present system of treaty making is working.
On one point there has been unanimity of opinion from the days of the Continental Congress, namely, that the treaty-making power must reside solely in the national government. The Continental Congress had no express authorization to enter into treaties, but even before the Declaration of Independence it did not hesitate to assume that it was authorized to exercise this power by implication from its character as the only national organ which had been set up to deal with external affairs, and from its power to direct the war for independence. On June 12, 1776, it chose a committee to prepare a plan of treaties to be proposed to foreign Powers, and in 1778 treaties of commerce and alliance with France were ratified by the Congress, apparently without any thought of submitting them to the several States. The exercise of this power by Congress was later approved by the Supreme Court of the United States. Numerous other negotiations for treaties were undertaken by representatives of the Continental Congress though no others came to fruition before the adoption of the Articles of Confederation. These Articles, proposed in 1777 but not adopted until 1781, vested in Congress the exclusive right to enter into treaties. Following this established precedent, the Constitution, which was proposed by the convention of 1787, granted the treaty making power to the national government, and expressly prohibited its exercise by the States.
The making of treaties is traditionally an executive function. In earlier days treaties were not infrequently the result of personal negotiations by kings and princes. Now in such a constitutional monarchy as that of Great Britain treaties are still negotiated and signed on behalf of the sovereign by representatives of the government of the day. They do not require the approval of Parliament in order to bind the state, but the practice is developing of allowing to Parliament an opportunity to discuss the terms of important international engagements before they are ratified.
The Continental Congress was a revolutionary body called together to conduct the struggle for independence being waged by the thirteen States. It did not attempt to legislate. The functions which it exercised were executive in character. It appointed Washington commander-in-chief of the army, it issued other military commissions as well as letters of marque and reprisal, it negotiated loans, it made requisitions upon the several States for men and money, and it negotiated treaties. The treaties with France, the only ones which became effective before the Articles of Confederation were adopted, were ratified by unanimous action of the Continental Congress.
The Articles of Confederation dealt at some length with the duties of the States themselves and with a machinery for arbitrating disputes between their citizens. They then provided for a Congress in which each State was to have one vote, and to which a very limited executive and legislative jurisdiction was granted. In apparent fear that even these limited powers would be abused, they provided that the important ones, both legislative and executive, including the making of treaties, should be exercised only by the assent of nine States, in other words, by two-thirds of the thirteen States represented in Congress.
In the Constitutional Convention, it having been decided that the legislature should be bicameral, and that election to the Senate should be by the state legislatures and not by popular vote, the great battle was waged between the large and small States over the question whether the representation in this chamber should be proportional or whether the States should be equally represented. The delegates from the small States made equal representation a condition of their support of the Constitution, and won. In the Senate, then, we have a body which in its make-up closely resembles the Congress under the Articles of Confederation. It is not surprising that those who were fearful of a strong executive should have proposed that appointments and treaties should be made by the Senate. Finally, however, it was agreed to vest both the treaty-making and the appointing powers in the President, but only "by and with the advice and consent of the Senate." This participation by the Senate met with opposition on the part of some of the delegates who did not believe in thus assigning to one chamber of Congress both legislative and executive functions. On the other hand there were those who urged that, as treaties were to have the force of law, they should be approved by the House as well as the Senate before ratification. The supporters of participation by the Senate in treaty making disagreed as to whether approval should be evidenced by a majority vote, by a two-thirds vote of the whole body, following the model of Articles of Confederation, or by a two-thirds vote of those present, which would save such embarrassment as Congress had experienced under the Articles, when it was often found impossible to obtain the attendance of delegates from nine States. Finally it was voted to incorporate in the Constitution the provision that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present consent."
Political fears of that day undoubtedly had much to do with this adoption of the two-thirds rule. The proposal had already been made in Congress that we should abandon our claim to freedom of navigation of the Mississippi, a right which was dear to Virginia and the south and west. The inhabitants of these areas feared that this right might be bartered away through treaty by the States of the north and east if such action could be taken by majority vote. If this question had not been so prominent in 1787 it is possible that provision might have been made for the Senate's concurrence in treaty making, as well as in appointments, by a majority vote only, thus saving many a President from embarrassment in his negotiations with foreign countries.
There seems no question that the framers of the Constitution intended that the advice of the Senate should be taken on the terms of a treaty before these terms were agreed upon by the representatives of the contracting parties. Washington once tried meeting with the Senate to obtain their advice as to a treaty about to be negotiated, but this experiment was not repeated. Subsequently he frequently sent memoranda of proposed negotiations to that body for their consideration. This latter practice has been followed from time to time by other Presidents in order to get the Senate's advice in advance of treaty negotiations, but such instances constitute exceptions rather than the rule. It has not been found practicable for a body of the size and character of the Senate to give satisfactory consideration to the preliminary terms of a treaty, and to follow through the various steps of its negotiation. The early practice of submitting to the Senate the names of those who were to negotiate treaties was also abandoned after a quarter of a century. In most instances treaties have been negotiated by the Secretary of State, by one of our regular representatives abroad, or by some special agent representing the President personally. The appointment of such agents without confirmation by the Senate has been objected to by that body, but this has not affected executive practice. Generally the advice as well as the consent of the Senate is sought after the work of the negotiators is complete, although naturally the President or Secretary of State, during the course of negotiations, often consults the chairman or other members of the Senate's Committee on Foreign Relations. If the Senate has not been consulted before a treaty is signed, that body does not feel itself restricted merely to consenting or refusing to consent to its ratification. It may consent to the treaty; it may disapprove the whole instrument; it may withhold consent pending further negotiations which it advises; it may approve ratification upon condition that certain specified amendments are agreed to by the other contracting party; or it may consent to ratification of the treaty with express reservations as to the meaning of certain of its terms. If such interpretative reservations are not objected to by the other contracting party no further negotiations are required. But we have seen, in connection with presidential efforts to have the United States join the World Court, what diplomatic complications may be caused by senatorial reservations. The way of a President who seeks consent to the ratification of a treaty is indeed hard, if there is anything controversial in its subject matter or terms. He must obtain the votes of two-thirds of the Senators present, without such amendments or reservations as will defeat its purpose or meet with objection from the other government involved. Many a President and Secretary of State have found this a disheartening task.
Treaties are primarily agreements between two or more states, binding the governments of those states. Municipal law, on the other hand, incorporates rules of conduct for the individual within the state. Generally outside of the United States treaties are not held to affect the rights or duties of individuals. If a treaty is negotiated by the British Government as a result of which it is desired to impose duties or to confer rights upon individuals, an act of Parliament will be required to accomplish such purpose -- the treaty, no matter how specific, will not serve that end. But how would such a doctrine operate in a union in which all control over international affairs is vested in the national government, while the States reserve to themselves large spheres of legislative action? State legislation might conflict with treaty obligations, and the national government might have no power to legislate on the subject in question. The State legislation would constitute the rule which would control individual action, and the national government would be reduced to the embarrassing necessity of attempting to explain the constitutional situation to the other parties to the treaty, and of begging the States to conform their legislation to treaty obligations so that the good faith of the nation might not be impugned. It is interesting that, though the Articles of Confederation contained no declaration as to the status of treaties made by Congress, the necessity of their having controlling force throughout the country was very strongly felt, and the view was widely expressed that they had the force of law by implication. This was the view of John Jay, the Secretary for Foreign Affairs, and was strongly expressed in a resolution adopted by Congress. The courts of several States held that state statutes in conflict with the treaty of peace were unenforceable. Though statutes in conflict with the treaty were repealed in a number of States, the opinion was expressed by Jefferson, when he was Secretary of State, and by others, that this was done only to prevent confusion and to take invalid laws off the books.
While the Continental Congress might assert the supremacy of treaties over state laws, and state courts might give effect to this view, the Articles of Confederation vested no power in the national government to enforce treaties as laws, and as laws superior to state statutes. To remedy this defect the Constitution laid down the express provisions that "all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land," that "the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding," and that the jurisdiction of the federal courts shall extend to all cases arising under "treaties made, or which shall be made" under the authority of the United States. Some treaties entered into by the United States are mere agreements and do not deal with the rights or duties of individuals. Others, while contemplating the control of personal rights and duties, expressly provide that rules for that purpose shall be embodied in congressional legislation. Such treaties have not the character of law. But treaties which are framed to be self-executing, and which by their terms deal with the rights and duties of individuals, have the force of law. In so far as they conflict with state laws, state courts must give them effect and must hold the conflicting laws of the State invalid. Also, any question involving such a treaty may be taken into a federal court. As federal laws such treaties stand on the same footing as congressional statutes. A treaty will repeal an earlier statute with which it conflicts. By the same token a congressional statute which is in conflict with an earlier treaty will repeal such treaty so far as it constitutes law. However, in its character of an international agreement the treaty can only be abrogated by mutual agreement, and so such congressional repeal may from an international point of view constitute an embarrassing breach of a treaty obligation.
If the President, by and with the advice and consent of the Senate, two-thirds of those present concurring, has power to make treaties which have all the force of federal laws, being on a par with congressional statutes, and annulling conflicting provisions in the constitutions and laws of the States, it is of very great interest to consider the scope of this law-making power. It is a striking fact that no treaty has as yet been declared unconstitutional. It is also striking that in connection with the grant of the power to make treaties the Constitution embodies no restrictive terms or enumeration of subjects to be dealt with, as it does in granting to Congress the power of legislation. The President is given the power "to make treaties." That is all. And when the supreme law of the land is defined it is declared to consist of " this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States."
Notwithstanding the broad language used in the Constitution there is probably no one who will assert that the power to make law by treaty is unlimited, and that no treaty could be declared unconstitutional. Those things which the federal government is absolutely forbidden by the Constitution to do at all it certainly cannot do through the provisions of a treaty. In this category are those prohibitions in Article One, Section Nine, against suspension of the writ of habeas corpus, against bills of attainder or ex post facto laws, capitation or other direct taxes not in proportion to the census, the granting of titles of nobility, and the giving of preference to the ports of one State over those of another -- matters which, with the possible exception of the one last mentioned, can hardly be conceived of as subjects of treaties. Also in the category of those things which may not be done by treaty may be placed those acts which are forbidden to the federal government by the "bill of rights" contained in the first eight amendments, as well as by the Thirteenth Amendment which prohibits slavery, and the Fifteenth and Nineteenth Amendments which declare that the right of citizens of the United States to vote shall not be denied by the United States because of race, color or previous condition of servitude, or because of sex. Here again we have subjects which would not ordinarily find their place in any treaty.
It would seem equally true that affirmative self-executing provisions in the Constitution can no more be evaded by the treaty-making organs of the government than by the organs vested with legislative power. The Fourteenth Amendment declares that "all persons born . . . in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." It would be equally unconstitutional to provide by statute or by treaty that children of aliens born in the United States and subject to the jurisdiction thereof should not have the status of citizens. By force of the Constitution itself such children are citizens of the United States at the instant of birth, and neither congressional act nor treaty can prevent the Constitution having such effect.
The form of government established by the Constitution is clearly intended by the terms of that instrument to be altered only by amendments adopted in the way there provided. It is therefore universally agreed that changes in the form of government as established by the Constitution could not be made by treaty. For instance, a treaty could not establish a unicameral legislature, or make foreign-born persons eligible to the presidency, or affect the original jurisdiction of the Supreme Court. But what President and Senate would think of negotiating or consenting to such a treaty? Here again we are dealing with issues which really have no practical significance. Let us now turn to certain ones which are more important and which are raised by treaties normally entered into by the United States.
Under our constitutional system there is a division of the field of legislation between Congress and the States. The federal Constitution gave Congress power to legislate on certain expressly enumerated subjects of national importance, and then empowered it "to make all laws which shall be necessary and proper for carrying into execution . . . all powers vested by this constitution in the government of the United States, or in any department or officer thereof." Congress is also given power to enforce the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments, and the Eighteenth concurrently with the States. On the other hand it is provided in the Tenth Amendment that "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." Congress, then, has the legislative powers granted to it expressly or by reasonable implication by the Constitution, and the States have all other powers of legislation normally belonging to sovereign states and not denied to them.
Naturally there are interesting and difficult questions as to the limits of these fields of action, and as to their interplay. With these questions we are not here concerned. The problems which may concern us are those which have to do with the right of the President and Senate to make treaties having the force of law, and which deal with subjects within the sphere of legislative power delegated to Congress or with subjects within the sphere of legislative power reserved to the States. On each of these points there has been controversy. The House of Representatives and its committees have from time to time asserted a denial of the right to make treaties having the force of law dealing with subjects within the sphere of congressional legislation, and state authorities have periodically insisted that the treaty-making power cannot invade the fields reserved for state legislation. One can find writers in the field of constitutional law who have come to the support of each view, but when they have sought judicial sanction they have had to content themselves with meager dicta in early cases.
While the ordinary powers of legislation are divided by our Constitution between the national and state governments, all of the treaty-making power which the thirteen States had upon their declaration of independence, and which normally belongs to sovereign states, was granted by the Constitution to the President and Senate, with no enumeration and with no qualification, and all treaties made "under the authority of the United States" are declared to be the supreme law of the land. A sovereign state has by general custom the power to make treaties with other states with regard to any matter which is a proper subject of international agreement, that is, any matter which affects or concerns international relations. It would seem to follow, then, that our national government, through the President and Senate, should be able to enter into any treaty within the sphere of foreign relations, with the exceptions already considered, and that such treaty, if so framed as to be self-executing, will have the force of law even though the treaty deals with a matter which might also be the subject of congressional or state legislation.
This view has been attacked as inconsistent with the separation of powers intended by those who framed our Constitution. It is true that the first article of the Constitution opens with the declaration that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." It is equally true that Article Two opens with the statement that "the executive power shall be vested in a President of the United States of America," and that the first sentence of Article Three reads, "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." It was the purpose of the framers of the Constitution so to divide the powers of government that no branch should be able to usurp the essential functions of the others, but an absolute separation of executive, legislative, and judicial powers was not intended, as is shown by other constitutional provisions. The President shares in legislation. The Senate has part in the executive powers of appointment and treaty making. Impeachment trials are initiated by the House of Representatives and heard by the Senate. It is necessary that all parts of the Constitution should be harmonized. We must read the grant of legislative power to Congress with the grant of the treaty-making power to the President and Senate, and with the clear declaration that the "Constitution, and all laws made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
Though it has been asserted broadly on behalf of the House of Representatives that treaties which deal with any subjects upon which Congress is authorized to legislate cannot have the force of law, the actual controversies between the President and the House have centered about treaties requiring the appropriation of money or affecting tariff regulations. Treaties have never been framed to appropriate money from the treasury by their own force, and it would seem that a treaty should not attempt to make such appropriation, in view of the provision contained in the article dealing with congressional powers to the effect that "no money shall be drawn from the treasury but in consequence of appropriations made by law." Here it would seem that law is used as a synonym for statute, and is not intended to include a treaty. What has really agitated the executive and legislative branches of our government in this field has been as to whether a treaty calling for the payment of money imposes a legal duty upon Congress to make the necessary appropriation, or whether Congress may exercise its discretion in the matter. Congress has insisted upon its discretionary right, but has made the necessary appropriations. The view taken by Congress would seem to be correct, but if one were to conclude otherwise there is no machinery by which a legal duty to appropriate money could be enforced. Perhaps it is also a fair reading of the Constitution as a whole that treaties having the effect of law are not to be made dealing with the raising of revenue, since the Constitution expressly provides that "all bills for raising revenue shall originate in the House of Representatives." Certainly as a practical matter the House has won its fight for this interpretation, and treaties dealing with matters of tariff are subject to congressional action.
Except for appropriations from the treasury of the United States and provisions for the raising of revenue, one can safely assert that treaties may be made having the force of law which deal with any subject upon which Congress may legislate, as long as this is at the same time an appropriate subject of international agreement. Among those subjects which fall within the concurrent powers of law-making by treaty and by congressional statute one may suggest immigration, extradition, the enforcement of prohibition upon foreign vessels within our waters, and the establishment of the status of the inhabitants of annexed territory. The Supreme Court has held that a federal statute repeals as law the provisions of an earlier treaty as to immigration, thus recognizing that the treaty did have the force of law in this field, and has declared that a later treaty dealing with immigration or extradition would repeal an earlier conflicting statute. The status of inhabitants of territory which we have acquired has been dealt with in the treaties of cession. Generally such treaties have not conferred citizenship upon the inhabitants whose allegiance is transferred, leaving that to be done, if at all, by congressional action, but Chief Justice Marshall declared of the treaty by which we got Florida that " this treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights and immunities of the citizens of the United States." The present Chief Justice of the United States, as Secretary of State, negotiated several treaties the avowed purpose and effect of which were to repeal so much of the Volstead Act as applied to foreign vessels carrying intoxicating liquor into our harbors in cases where the liquor was not intended to be landed or sold within our jurisdiction. The constitutionality of these treaties has not been seriously questioned.
One may reasonably deduce from these examples a general power in the President and Senate to make law by treaty on any subject, except appropriations and the raising of money, upon which Congress may legislate, as long as that subject is also a matter of international concern.
A recognition of a power vested in the President and Senate of law-making by treaty, which is concurrent with the law-making power of Congress, does not in any way oust Congress from the fields of legislation delegated to it by the Constitution, as is sometimes erroneously asserted. Congress may still legislate on all of the subjects within its delegated powers, and such legislation will repeal as law any earlier conflicting treaty provisions.
It is interesting to glance at the other side of the picture and to note that Congress has not hesitated itself to invade by joint resolution those fields normally reserved for treaty action, basing its right to act, not upon any express delegation of power, but upon a not too clear implication of authority. One such instance was the annexation of Hawaii, and the other was the declaration that we were at peace with Germany.
As a matter of fact the framers of treaties have been conservative in their use of the power to put international engagements in such form as to have the force of law. The practice of such restraint seems wise. It obviates a possible ground of jealousy and irritation between the House and the President. It may also prevent international embarrassment, which would be caused if a self-executing treaty were later repealed as law by congressional statute. In fact experience tends to support the wisdom of those who urged in the constitutional convention that, since treaties were to be part of the law of the land, they should be ratified only with the approval of both houses of Congress. It is probable that it would have been found easier to obtain support for treaties by a majority of both houses than it has been found to secure a two-thirds vote of the Senate, and with such a provision there would have been no ground for dissension between the President and the House as to the proper subject matters of international engagements. However, consideration today of any such change in the treaty-making power is purely academic, for two-thirds of the Senate would certainly not vote to surrender their highly prized control of international affairs.
Title and succession to property within a State, protection within its borders of health, safety, morals and the general welfare, and control of its natural resources, are wholly within the legislative power of the State itself so long as state action does not contravene constitutional limitations, such as those guaranteeing due process, equal protection and the inviolability of contracts, and so long as it does not unduly interfere with the exercise of national power, such as that over interstate and foreign commerce. These fields reserved to the States cannot be invaded by congressional legislation. But when we consider whether treaties can deal with subjects in these fields we must keep in mind again that, while legislative action is divided between the nation and the States, the whole treaty-making power is vested in the United States, and that treaties made "under the authority of the United States" are the supreme law of the land, "and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." It would seem to follow from these provisions that treaties which deal with proper subjects of international agreement are law superior to any conflicting laws in the several States, though they deal with subjects upon which Congress could not legislate.
The reciprocal rights of the citizens of different countries within their respective territories are the most usual and appropriate subject of treaties. We are therefore not surprised to find the Supreme Court upholding the treaty right of aliens to hold or to succeed to property within a State, though the treaty in question conflicts with state legislation. The same tribunal held a state statute void which prohibited the issuance of pawnbrokers' licenses to aliens, in so far as it conflicted with the treaty right guaranteed to the Japanese to carry on trade in the United States on equal terms with United States citizens. State courts have held that tax laws which are in conflict with treaties are unenforceable. Twenty-five years ago, when Elihu Root was Secretary of State, a controversy arose as to the right of California to segregate Chinese and Japanese children for educational purposes. Mr. Root was clear that a treaty with Japan guaranteeing to citizens of Japan treatment equal to that given citizens of any other country would invalidate state legislation requiring Chinese and Japanese children to attend separate schools. The controversy was settled without court action.
Before the Eighteenth Amendment it was held that a treaty with an Indian tribe by which land was ceded and became part of the territory of a State might prohibit the introduction of liquor into such territory, and to that extent prevent state legislation on that subject within state territory.
Although each State has the right to legislate for the protection of fisheries in the waters within its territory, including the littoral strip of sea along its shores, and though Congress has no power to enact such legislation, the United States entered into a treaty with Great Britain for the regulation of the fisheries in waters along the international boundary line between the United States and Canada, the waters on the American side being within the jurisdiction of the riparian States. No question as to the validity of this treaty seems to have been raised.
Congress attempted by legislation to protect migratory birds. Such legislation was attacked as unconstitutional. The lower federal courts held it invalid on the ground that it did not fall within any of the powers delegated to Congress, and declared that each State would have to legislate for the protection of such birds within its own territory. Before the question of the validity of the federal statute was passed upon by the Supreme Court a treaty was negotiated and ratified between Great Britain and the United States by which the two contracting parties agreed to enact legislation for the protection of birds migrating between the United States and Canada. Legislation ancillary to this treaty was passed by Congress, which was substantially the same as the earlier federal statute. The Supreme Court upheld the treaty because it dealt with a proper subject of international agreement, even though that subject was not within the scope of the legislative powers delegated to Congress, but was within the ordinary field of state legislation. "No doubt," as Justice Holmes said in delivering the judgment of the court, "the great body of private relations usually fall within the control of the State, but a treaty may override its power." Then the court made clear the further very interesting fact that Congress, under its power to "make all laws which shall be necessary and proper for carrying into execution . . . all . . . powers vested by this Constitution in the Government of the United States," may pass laws to give effect to a valid treaty which it could not constitutionally pass in the absence of such treaty.
It does not follow from these examples of treaties which supersede state laws that the President and Senate can at will, by the negotiation of treaties, usurp the law-making power intended by the Constitution, and specifically by the Tenth Amendment, to be reserved to the States. A treaty is an international agreement, and must have for its subject a matter of international concern. A treaty which did not have such subject would be outside the scope of the treaty-making power, and would properly be held invalid as law under our Constitution. But within the fields appropriate to international agreement treaties which are self-executing in form will have the force of law and will annul all conflicting state laws, and treaties which are not self-executing will give validity to statutes passed by Congress, though the statutes in question could not be passed in the absence of such treaties. As Elihu Root has said of the power to make treaties, "so far as the real exercise of the power goes, there can be no question of State rights, because the Constitution itself, in the most explicit terms, has precluded the existence of any such question." Although there plainly exists the power to make laws by treaty which shall supersede state laws, the fear of undue interference by treaty with the internal management of the States seems a bogey which should not frighten any reasonable man. There is no likelihood that a treaty will be negotiated with another state which does not deal with a matter of important mutual, and therefore of international concern, and no executive officer will care to submit to the Senate for its critical consideration a treaty which has not real international significance. As a last line of defense the State always has the right to a determination by the Supreme Court of the question whether a treaty is an unconstitutional attempt to meddle with matters wholly internal, or whether its subject matter is really appropriate to an international agreement.