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That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconsti

That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconstitutional? The treaty isn't unconstitutional, though. The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them. This is a much lower standard than the "forbidden unless the Constitution specifically authorizes it" applied to other acts of the federal government. And since the original case revolved around states wanting to regulate in preference to Congress, and Article VI says treaties have supremacy over state law, the treaty-based bird regulations stood up to scrutiny, because the treaty itself was held to be permitted by the Constitution. Also, in the modern day the original bird law might not have been struck down at all. The theoretical support for the law was in Congress' (specifically-enumerated) power to regulate interstate commerce, and rooted in the inherently state-line-crossing nature of the migrations. Interpretation of the interstate commerce power has swung back and forth like a pendulum several times over the history of the US. At the time of the original bird law it was being interpreted extremely narrowly; today it is typically read more broadly.

rtkwe 9y ago
From what little I've read on Supreme Court jurisprudence it seems like the Commerce Clause has just gotten more and more broadly read over the years. When has it really swung back to more narrowly read in a significant way?
- ameister14 9y ago
  since the 90's, starting with US v Lopez
- ubernostrum 9y ago
  During John Marshall's tenure on the court, it was read broadly in favor of Congress. But then we had the era of tortured readings of parts of the Constitution through which the Supreme Court basically tried to enforce a particular economic policy on the entire country. This was a time when progressive reformers were pushing for labor standards, bans on child labor, minimum wages and all the things we mostly take for granted today. And the Court hated that stuff philosophically, so they looked for ways to kill it. Sometimes the commerce clause would be read narrowly (if it could be used to strike down a federal regulation). Sometimes it would be read broadly but against the states (if it could strike down a state regulation). The Fourteenth Amendment was another popular choice of text at the time, with the Court reading it as having meant to establish not the equality before the law of black and white citizens, but rather a sanctity of contract and a condemnation of economic regulation beyond the wildest dreams of modern libertarians. This was the so-called "Lochner era" named after the keystone case of the Court's economic policy. The swing back to broad Congressional regulatory power began with Franklin Roosevelt threatening to "pack" the Supreme Court with judges who would support him, leading the conservative members of the Court to realize they would lose no matter what and finally starting to allow some economic regulation to occur. Then later in the 20th century the Court mostly stopped questioning assertions of the commerce power, except for some (in)famous flip-flops led by Scalia as he tried to find Commerce Clause justifications for striking down federal gun control while keeping federal drug prohibition.
eadmund 9y ago
> The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them. That's a risible standard, though: it renders the Tenth Amendment a dead letter. It doesn't make any sense for the Constitution to explicitly reserve all powers not granted to the United States to the several states or people, and at the same time grant the United States the ability to collude with foreign powers in taking those powers from the states and/or people. Yes, treaties are the supreme law of the land, but only if they are constitutional. The President & Senate could not enter a treaty which restores slavery, for example.

rtkwe 9y ago

From what little I've read on Supreme Court jurisprudence it seems like the Commerce Clause has just gotten more and more broadly read over the years. When has it really swung back to more narrowly read in a significant way?

ameister14 9y ago
since the 90's, starting with US v Lopez
ubernostrum 9y ago
During John Marshall's tenure on the court, it was read broadly in favor of Congress. But then we had the era of tortured readings of parts of the Constitution through which the Supreme Court basically tried to enforce a particular economic policy on the entire country. This was a time when progressive reformers were pushing for labor standards, bans on child labor, minimum wages and all the things we mostly take for granted today. And the Court hated that stuff philosophically, so they looked for ways to kill it. Sometimes the commerce clause would be read narrowly (if it could be used to strike down a federal regulation). Sometimes it would be read broadly but against the states (if it could strike down a state regulation). The Fourteenth Amendment was another popular choice of text at the time, with the Court reading it as having meant to establish not the equality before the law of black and white citizens, but rather a sanctity of contract and a condemnation of economic regulation beyond the wildest dreams of modern libertarians. This was the so-called "Lochner era" named after the keystone case of the Court's economic policy. The swing back to broad Congressional regulatory power began with Franklin Roosevelt threatening to "pack" the Supreme Court with judges who would support him, leading the conservative members of the Court to realize they would lose no matter what and finally starting to allow some economic regulation to occur. Then later in the 20th century the Court mostly stopped questioning assertions of the commerce power, except for some (in)famous flip-flops led by Scalia as he tried to find Commerce Clause justifications for striking down federal gun control while keeping federal drug prohibition.

eadmund 9y ago

> The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them. That's a risible standard, though: it renders the Tenth Amendment a dead letter. It doesn't make any sense for the Constitution to explicitly reserve all powers not granted to the United States to the several states or people, and at the same time grant the United States the ability to collude with foreign powers in taking those powers from the states and/or people. Yes, treaties are the supreme law of the land, but only if they are constitutional. The President & Senate could not enter a treaty which restores slavery, for example.