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The Green Bag

Which of these views was the theory underlying the Constitution at the time of its adoption need not concern us, as it originated in a series of compromises which would make it difficult to discover a clear and consistent doctrine, and as the actual development of the Consti tution in practice has made the problem one merely of historical interest. The third view is the one indicated and ex pressed in the existing structure of our institutions. The first view, the states' rights theory, was long since overthrown; the second view necessarily leads to a deadlock between federal and state power which makes it impossible for a firmly welded community of states to be held together in a unified nation. If the United States are to be kept together as a nation and not as a federation, close or loose, of states, state power must yield to the central power whenever the need becomes manifest, even though the manner and extent of this submis sion be expressly formulated and re stricted by the organic law. In the international community of states, on the contrary, an analogous situation does not exist. The world is at present in the stage of states' rights, or the autonomy of states, and the community of nations is formed only out of residual powers remaining after the exercise of the powers which the states choose to reserve to themselves. The international community for the present cannot become anything more than a loose federation. This federa tion cannot impose its own will on the separate states, but takes what they choose to leave it. It must concede to the states complete freedom in the exer cise of their treaty-making power, and each state is at liberty to determine for itself the scope and extent of such power. It is impossible, therefore, to hold that the treaty-making power is

determined by virtue of the membership of the nation in the community of states solely, and overrides and limits the municipal power of the state. Even admitting the recognition by the state of moral rights and obligations to the international community, such rights and obligations do not become legally effective, in altering the application of the treaty-making power, until they are voluntarily assumed as internationallegal powers or limitations through the state's conforming its municipal law, fundamental and statutory, to meet the demands of such rights and obligations. Suppose, for example, that the nations should feel that moral justice required conferring the right of naturalization on all domiciled aliens, after a prescribed period of residence, who are allowed to enter the country by the immigration laws. Nothing in our own Constitution prevents the granting of such a right, but we ought not to be held to recognize such a principle as a rule of international law for our own governance until Con gress has applied the principle in treaty or statute, or, in the event of the exist ence of a conflicting state statute, the Supreme Court has clearly indicated that the several states of the Union cannot through their legislation exer cise exclusive jurisdiction over aliens. In other words, international law, though not a part of municipal law, is in the present position of the international community limited and controlled by municipal law; and while the adoption of an international law requires action by more than one nation, preparation for such communal action, by setting new boundaries to the treaty-making power, rests wholly with the nation which takes the preliminary step of selfimposed restrictions on its municipal law. Such self-imposed restrictions on the