Treaty Power Justifications for Early Trademark Laws

Abstract

In 1920, the Supreme Court decided in Missouri v. Holland that the power to make treaties, coupled with the necessary and proper clause of the Constitution, may provide a Constitutional basis for legislation which would otherwise not be within the enumerated powers of Congress. To this day questions rage about both the validity and scope of the Court's decision in Missouri v. Holland, questions which are set to be argued anew this term before the Supreme Court in Bond v. U.S.

This short piece examines the attitudes towards the "treaty power" during one its few documented usages before Missouri v. Holland. In 1879 The Supreme Court held in the Trade-Mark Cases that the 1870 Trademark Act, as amended in 1876, was not a valid exercise of either the Commerce Clause or the Intellectual Property Clause, forcing Congressional sponsors of the 1881 Trademark Act to embrace the novel theory that a treaty providing for reciprocal trademark protection could provide the constitutional justification for a limited federal trademark law under the power to make treaties and the Necessary and Proper Clause.

This Essay explores the views both stated and implied about the scope of the treaty power in this context, and offers a new understanding of the decision in the Trade-Mark Cases as containing a substantive holding regarding the Treaty Power. This essay concludes that circa 1880 a power to make laws to call into effect treaties existed, premised only on the treaty power and the Necessary and Proper Clause of the Constitution. However, this power was only seen as allowing legislation regarding international activity.

This piece was published with Heightened Scrutiny, the online supplement to the University of Pennsylvania Journal of Constitutional Law.

Keywords: treaties, necessary and proper clause, treaty power, bond v. us, Missouri v. Holland, Trade-Mark Cases

JEL Classification: K33