Domestic Relations, Missouri v. Holland, and the New Federalism
Capital University - Law School
William & Mary Bill of Rights Journal Vol. 12, pp. 179-220, 2003
Citing Missouri v. Holland and other cases for support, commentators suggest that the treaty power is subject to very few constitutional constraints and that the Court's recent expansion of the 11th Amendment might be circumvented through the use of this power. This article suggests that Missouri v. Holland and the other cases cited to establish the virtually plenary nature of the treaty power might be read much more narrowly than commentators imply and that the Court's current 11th Amendment jurisprudence is likely to inform any interpretation of the breadth of that power. The article discusses the Court's view that family law is paradigmatic of an area of law reserved for the states, and suggests that the current Court would hold that some areas of state family law cannot be supplanted by the federal government even via international agreement. The article concludes that the Court is unlikely to interpret the treaty power in a way which undermines core areas of state sovereignty, regrettable international consequences notwithstanding.
Keywords: Missouri v. Holland, Curtiss-Wright, treaty power, domestic relations, 11th amendment
JEL Classification: I31, J12, J13, J18, J71, K10, K33Accepted Paper Series
Date posted: February 4, 2004
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