SEGREGATION OF JAPANESE STUDENTS powers, it may be municipally inoperative because it deals with matters in the states as to which the Federal government has no power to deal. That a treaty, however, can give to aliens such rights has been repeatedly affirmed by the Supreme Court of the United States. " 1 In the decisions of the Supreme Court of the United States relating to the suprem acy of a treaty of the United States over the statutes of a particular state there has been constant recognition of the vastness of the scope of the treaty-making power.2 In the case of Geofroy v. Riggs,3 the court through Mr. Justice Field said: « "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the govern ment or of its departments, and those aris ing from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to author ize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenivorth Rail road Co.v. Lowe, 114 U.S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." While the constitutional limitation has been frequently admitted, it is of great prac tical significance that in no case has the Supreme Court ever denied the validity of a treaty. Adverting to this fact Mr. Charles Henry Butler says : "The Supreme Court possesses the greatest judicial powers that have ever been vested 1160 MS. Dom. Let. 441, cited in Moore's Dig. Int. Law, § 738. See also works of John C. Calhoun, edited by R. K. Cralle, N. Y., 1888, Vol. I, p. 252, cited in C. H. Butler's Treaty-Making Power, § 481. • Ware v. Hyiton, 3 Dall. 199: Chirac v. Chirac, 2" Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483• 133 U. S. 258 at 267.
45
in any court o"f any nation. It is not only fully conscious of the great powers which it possesses and of its right to use them, but it is extremely jealous, as it should be, of its rights and powers. One of the few declara tions that this court ever made in deroga tion of its own supreme judicial power was that if the Supreme Court possesses the power to declare a treaty void, it will never exercise it but in a very clear case indeed. That question has never been decided, be cause such a 'clear case' never has been presented to the court as would justify the exercise of the power, if it dees exist." And further, "The question is not likely to arise, as, in the natural course of events, it is hardly possible, for two reasons, that any treaty will be made which the Supreme Court would be justified in declaring void: first, because the mere possession of power does not necessarily Imply its misuse, and the executive department of this government, as a general rule, acts in accordance with American policy and American principles; secondly, because the governmental checks upon the exercise of the power, and upon the carrying out of treaty stipulations, practically prevent such misuse."1 Lack of space forbids discussion of the broad question as to what may be the bounds of the treaty-making power. To what extent, if any, the federal government may by treaty lawfully compel affirmative action by a particular State, is not here sought to be determined. It is merely sub mitted, that in view of the experience of our country it appears to be unlikely that our federal courts would conclude that it was beyond the scope of the powers of the President and the Senate to contract with Japan that its subjects resident in the United States might attend the same public schools as were open to our native citizens, or to aliens of any other states. On the supposition that the treaty has been violated by the California authorities, inquiry is made as to the responsibility of 1 C. H. Butler's Treaty-Making Power of the United States, §§ 460, 461.
