Ten Cases in Ten Days

In lieu of posting the ten most influential albums of my formative years, I'm posting ten judicial opinions that have shaped my view of constitutional law. My third case is Missouri v. Holland, 252 U.S. 416 (1920).

In 1916, the United States and Great Britain signed a treaty to protect migratory birds. As part of the treaty, Congress passed the Migratory Bird Treaty Act (“MBTA”), which outlawed killing, capturing or selling birds included in the treaty. After federal prosecutors charged two Missouri hunters with killing protected birds, Missouri’s Attorney General sued the federal government to block enforcement of the legislation. He contended that the MBTA violated the Tenth Amendment, under which all “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.”

The Supreme Court disagreed. Writing for the majority, Justice Oliver Wendel Holmes, Jr. began with the text of the Constitution itself: Article 1, section 8 empowers Congress “[t]o make all laws which shall be necessary and proper for carrying into execution … all other powers vested by this Constitution in the government of the United States.” Article II, section 2 grants the President (with advice and consent of the Senate) the power to make treaties with other countries. And Article VI, sometimes referred to as the “Supremacy Clause,” provides that the Constitution, laws, and treaties of the United States “shall be the supreme law of the land … anything in the Constitution or laws of any State to the contrary notwithstanding.” In other words, federal legislation necessary to the enforcement of a valid treaty supersedes state law.

But what makes a treaty “valid”? What kind of treaties, if any, are forbidden by the general terms of the Tenth Amendment? For Justice Holmes, the text of the Constitution was not sufficient to answer these questions. He had to “consider what this country has become in deciding what [the Tenth] amendment has reserved.” While states may have a sovereign interest in regulating bird hunting within their borders, birds do not stay in one place for long. “But for the treaty and the statute,” wrote Justice Holmes, “there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed…. We are of the opinion that the treaty and statute must be upheld.”

Missouri v. Holland is really a case about constitutional interpretation. Note that the text of the Constitution provided the starting point but not the final answer. For Holmes, the Constitution was a living thing “the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. Cases before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

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