Revisiting Missouri v. Holland

by Duncan Hollis

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).

http://opiniojuris.org/2008/02/13/revisiting-missouri-v-holland/

2 Responses

  1. Hey, I’m a big admirer of much of the recent scholarship on whether Missouri v. Holland should be revisited/reconsidered/overturned/reaffirmed/etc. — but I can’t help but wonder what all the fuss is about. The “continuing (if not growing) importance of the debate”? Not from where I sit. After all, recall that MvH was decided, by a lopsided vote, at the very moment that the Court was *most* skeptical of congressional power. And no court has ever so much as suggested any question about the continuing strength of the doctrine. I hope someone at the Missouri conference addresses why the academic obsession has had absolutely no traction . . . or am I wrong about that?

  2. Marty, others may disagree, but here’s my take. First, I agree with you that the Court has shown zero inclination to revisit Missouri (indeed, I count 5 justices who’ve expressly invoked Missouri as good law in their opinions). That said, where the debate has relevance is in the Executive Branch, which appears to be developing a new practice that is much more sensitive to federalism concerns than Missouri would suggest it needs to be (i.e., the recent practice of the Bush Administration has been to insist on federalism clauses, reservations, or understandings, to avoid any possibility that Missouri would come into play). As such, even with the Court as a non-player, I still think the issues raised in Missouri and the revisionist critique thereof require attention, a point I make in much more detail here if you or anyone else are interested.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.