Revisiting Missouri v. Holland

Eighty-eight years ago, Oliver Wendell Holmes authored one of his most famous opinions in the case of Missouri v. Holland, purporting to settle the question of whether states’ rights limited the treaty power. His rejection of any such “invisible radiation” from the Tenth Amendment has engendered dedicated defenders and passionate critics ever since, from Senator Bricker, up through more modern treatments of the issue by Curt Bradley, Lori Fisler Damrosch, David Golove, Louis Henkin, Thomas Healy, Nicholas Rosenkranz, David Sloss, Peter Spiro, and Ed Swaine, among others. Recognizing the continuing (if not growing) importance of the debate, our own Peggy McGuinness is hosting a conference at the University of Missouri School of Law this week, entitled Return to Missouri v. Holland. Here’s the overview (you can also access the symposim brochure here):

In the 1920 case Missouri v. Holland, Justice Oliver Wendell Holmes famously declared, “We must consider what this country has become in considering what [the Tenth] Amendment has reserved.” The Supreme Court upheld the federal government’s ability to regulate, through exercise of the Treaty Power, activity that otherwise would be reserved to the states. During the era when the Court adopted an expansive view of Congress’ ability to regulate through the Commerce Clause, the import of Missouri v. Holland receded. But as the Court has increasingly cabined the scope of the Commerce Clause, and in a world where everything from the death penalty, to greenhouse gas emissions, to access to medical care has become the subject of multilateral treaty regimes, the ability of the federal government to invoke the Treaty Power in regulating the states is once again central to discussions of federalism in the United States.

This gathering of scholars will reexamine Missouri v. Holland and explore the intersection of federalism and international law from a variety of perspectives. The papers and commentary will address, among other topics, the following: Has increased global regulation altered the relationship between the states and the federal government in such a way as to require a fundamental reconsideration of Missouri v. Holland? Given the range of regulation now delegated to international organizations and courts, does federalism provide any limitations on the federal government’s foreign affairs powers? In a system of dual sovereignty, what are the limitations on state participation in international law making in areas such as the environment and human rights? What are the implications of multiple layers of governance for the development of domestic and international law?

The line-up of speakers and commentators looks great and includes additional representation from Opinio Juris. Peter Spiro’s going to be acting as a commentator, and I’m going to roll-out an idea I have regarding the so-called compact clause (namely that the Constitution can and should treat U.S. state agreements with foreign governments differently than it does interstate agreements). For those who can’t attend but have an interest in the subject, we hope to post a webcast of the proceedings here next week (Missouri’s website should have it as well).