Abstract

http://ssrn.com/abstract=1316960
 
 

Footnotes (46)



 


 



Resurrecting Missouri v. Holland


Peter J. Spiro


Temple University - James E. Beasley School of Law

December 16, 2008

Missouri Law Review, Vol. 73, No. 4, 2008
Temple University Legal Studies Research Paper No. 2009-2

Abstract:     
This essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably the decision is no longer good law if it ever was.

But Holland may yet live. The key moving part here is the transformed global context. Globalization disaggregates nation-states, facilitating the global interactivity of constituent subnational jurisdictions. This creates new spaces for the states as international actors, including as parties to international agreements. These new international capacities may lessen the need for Holland-like powers in the national government, as the states become more amenable to international discipline. To the extent that international law implicates areas of exclusive subnational authority, the architecture of global society now includes suitable channels of interaction. On the other hand, the transaction costs of managing treaty relationships with multiple subnational entities argues for the maintenance of intermediary power in national governments. The discipline of subnational authorities may remain insufficient to address global imperatives. Some global issues can't wait for the perfection of the legal personality of subnational actors.

In other words, the world may need Missouri v. Holland. If Holland is to be resurrected, it probably won't be out of indigenous American concern. More likely, other actors will press the use of Holland's powers on the United States, in the way of demands lodged with the national government to bring the states into line with international undertakings. Although the national government has finessed recent situations in which a broad interpretation of the Treaty Power might have been required, it has yet to be put to the test. But it is not hard to conjure up scenarios in which the balance would tip in favor of using a treaty to trump state authority.

Number of Pages in PDF File: 13

Keywords: Missouri v. Holland, Treaty Power, Federalism, Bricker Amendment, Bond v. United States

Accepted Paper Series


Download This Paper

Date posted: December 18, 2008 ; Last revised: November 5, 2013

Suggested Citation

Spiro, Peter J., Resurrecting Missouri v. Holland (December 16, 2008). Missouri Law Review, Vol. 73, No. 4, 2008; Temple University Legal Studies Research Paper No. 2009-2. Available at SSRN: http://ssrn.com/abstract=1316960

Contact Information

Peter J. Spiro (Contact Author)
Temple University - James E. Beasley School of Law ( email )
1719 N. Broad Street
Philadelphia, PA 19122
United States
Feedback to SSRN


Paper statistics
Abstract Views: 895
Downloads: 82
Download Rank: 178,647
Footnotes:  46

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.234 seconds