Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles of Confederation in the Virginia state legislature in 1777 – recurring time and time again throughout the Eighteenth, Nineteenth, and early Twentieth centuries, building to a climax in the Supreme Court’s famous 1920 decision Missouri v. Holland, continuing in the 1950s with the Bricker Amendment controversy, and reemerging as recently as last year in an article published in this Review – the issue has been among the most passionately disputed questions in our constitutional history. Although temporarily in hibernation, it threatens presently to break out again into full-blown conflict.